Responding to Rluipa: a Guide for Local Governments
| Publication year | 2001 |
| Pages | 61 |
2001, November, Pg. 61. Responding to RLUIPA: A Guide for Local Governments
Vol. 30, No. 10, Pg.61
The Colorado Lawyer
November 2001
Vol. 30, No. 11 [Page 61]
November 2001
Vol. 30, No. 11 [Page 61]
Specialty Law Columns
Government and Administrative Law News
Responding to RLUIPA: A Guide for Local Governments
by Alan Jensen
Government and Administrative Law News
Responding to RLUIPA: A Guide for Local Governments
by Alan Jensen
The Religious Land Use and Institutionalized Persons Act of
20001 ("RLUIPA"), enacted by Congress in the summer
of 2000 and signed into law by President Clinton in September
2000, may at first glance seem similar to the Restoration of
Religious Freedom Act of 19932 ("RFRA"). Although
RFRA was struck down by the U.S. Supreme Court in the 1997
decision of Boerne v. Flores,3 a closer reading of RLUIPA
RFRA, and the Supreme Court decisions about RLUIPA and RFRA
reveals some striking differences. This article discusses
those differences and possible defenses to a RLUIPA claim
and suggests code changes to avoid RLUIPA claims
Background
RFRA was an attempt by Congress to reverse the U.S. Supreme
Court's ruling in Employment Division, Department of
Human Resources v. Smith4 ("Smith") in which the
Court withdrew some of its protection of religious practice.
In Smith, the Court announced the rule that the imposition of
a substantial burden on a religious practice (the ritual use
of peyote) would not violate the religious freedom clause of
the First Amendment if it was the result of a law of general
application.5 Prior to Smith, since the decision thirty years
earlier in Sherbert v. Verner,6 regulations could not impose
a "substantial burden" on a religious practice
unless the regulation in question served a "compelling
governmental interest" and did so in the "least
restrictive manner."
The Smith decision engendered anxious concerns among many
religious leaders. They expressed these concerns to their
congressional representatives, and Congress responded
sympathetically with RFRA. The text of RFRA contained a
statement that it was the express intent of Congress to
restore the Sherbert rule to apply to all cases in which any
religious practice was substantially burdened. In Boerne, the
Supreme Court held that "Congress . . . exceeded its
authority under the Constitution."7
RLUIPA, in contrast, was clearly drafted by scholars who had
carefully analyzed not only Boerne, but the Court's other
decisions on religion as well. RLUIPA is a subtle and refined
piece of legislation in which Congress took a smaller step
toward restoring the Sherbert rule by focusing on local land
use decisions.
One of the Court's criticisms of RFRA was that it had no
legislative history indicating a widespread pattern of
discrimination against religious entities.8 RLUIPA, however,
does have such a history. Professor Marci Hamilton, counsel
for the City of Boerne before the Supreme Court, states that
the short list "cobbled together" by Congress to
examine patterns of discrimination does not support the
conclusion that there has been widespread discrimination
against religious entities.9 Whether or not practitioners
agree with Hamilton's assessment of the list of
discrimination patterns prepared by Congress, a review of
cases initiated under RFRA and RLUIPA shows that many of the
plaintiffs are not traditional, mainstream churches and,
therefore, there may have been discrimination.
Religious Discrimination Prohibited
RLUIPA § 2(b) prohibits discrimination against religious
entities and prohibits less than equal treatment of such
entities. In a case brought prior to RLUIPA but not decided
until after RLUIPA was enacted, a church complained that it
was denied permission to conduct worship services in a
shopping mall, despite the fact that "clubs and
lodges," "meeting halls," and "recreation
buildings and community centers" were all permitted to
operate in such locations.10 Similar issues were raised in
Haven Shores Community Church v. City of Grand Haven,11 the
first case to state an RLUIPA claim. In that case, a consent
order had been entered in which the City of Grand Haven had
acknowledged that its ordinance would not survive a RLUIPA
review. In addition, the U.S. Supreme Court had held that
regulations aimed directly at a religious practice will not
survive constitutional review.12
Individualized Land
Use Assessments
Use Assessments
RLUIPA § 2 singles out one-on-one land use reviews for the
greatest impact of preemption. It is only in the case of such
reviews, or the possibility of applying such reviews, that
Congress prohibits the imposition of a substantial burden on
religious practice in the absence of a compelling
governmental interest applied in the least restrictive
manner. RLUIPA § 2(b) prohibitions appear to be subject to
the more deferential rational basis test. It may well be that
the imposition of heavier standards on one-on-one reviews
such as variances and conditional use permits, will find
sympathy with the Court, particularly in view of the fact
that the Court appeared to disfavor such reviews in Dolan v.
Tigard.13 In Dolan, after reciting from the familiar list of
decisions that have sustained land use regulation against
constitutional challenges, the Court observed that all of
those cases involved "legislative determinations"
that classified "entire areas of the city,"
"whereas here the...
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