Condemning religion: RLUIPA and the politics of eminent domain.

• Author: Serkin, Christopher
• Position: Religious Land Use and Institutionalized Persons Act of 2000

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law's protections beyond zoning to cover outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting congregations from condemnation are likely to be far higher than the costs of doing so with respect to zoning. In conclusion, we identify an important implication of our argument for the law's core zoning provision--namely, our proposal invites local governments to circumvent RLU1PA by simply condemning religious property that they find difficult to zone because of the Act. On the one hand, this gives local governments a needed safety valve while, on the other hand, requiring them to pay just compensation to religious groups. Our proposal therefore suggests a powerful compromise.

INTRODUCTION I. AN UNSETTLED QUESTION A. Maximalism B. Minimalism C. An Intermediate Approach II. THE POLITICAL ECONOMY OF RLUIPA A. Zoning and Prophylaxis 1. RLUIPA's Best Defense 2. A Broader Defense B. The Political Economy of Condemnation C. The Costs of Limiting Condemnation 1. The Comparative Costs of Zoning and Condemnation 2. Holdouts 3. Inverse Condemnation III. RLUIPA AS LIABILITY RULE CONCLUSION INTRODUCTION

Should religious landowners enjoy special protection against eminent domain? That provocative question is driving the latest fight over the Religious Land Use and Institutionalized Persons Act (1) (RLUIPA). Enacted by Congress in 2000, RLUIPA requires courts to presumptively exempt religious groups from zoning and landmarking laws that substantially burden religious exercise. (2) It provides a powerful legal tool to congregations that wish to, say, build a parking lot or expand their buildings in defiance of municipal restrictions. But does it also confer the power to resist condemnation? If so, then churches, mosques, and synagogues would gain a legal weapon that would threaten the development of municipal infrastructure, economic redevelopment, and even general regulatory power. If not, RLUIPA's core zoning provisions would be deranged because localities that found themselves unable to zone could simply condemn church property and avoid RLUIPA's substantive zoning provisions. In this Article, we side with the latter position and argue that RLUIPA should not apply to eminent domain. We conceptualize RLUIPA as a prophylaxis against intentional discrimination, we offer a political economy account of how such discrimination works in zoning as compared to condemnation, and we propose that the availability of condemnation is an important counterweight to RLUIPA's otherwise expansive protection. RLUIPA should not be extended to outright takings despite the fact that--or indeed because--allowing unfettered condemnation would effectively take some of the bite out of the Act's core zoning provisions.

Individually, RLUIPA and condemnation are at the leading edge of current but seemingly unrelated legal controversies. RLUIPA is the latest installment in an ongoing battle over First Amendment protection, and it has rightfully drawn widespread attention, some of which has been supportive and some of which has been highly critical. (3) After Kelo v. City of New London, (4) where the Supreme Court controversially reaffirmed its expansive view of the government's power of eminent domain, legislatures, courts, and commentators have wrestled publically and with increasing acrimony over the dangers and appropriate uses of condemnation. A number of recent litigations have forced these two otherwise separate issues together, requiring courts to decide whether RLUIPA serves to prohibit condemnation of religious property. That issue implicates core judgments about the relationship between religious freedom and property rights. So far, courts have come to inconsistent conclusions. (5)

This Article argues that RLUIPA should not be read or amended to extend to eminent domain for two principal reasons. First, the political economy surrounding condemnation is markedly different from that of zoning and landmarking, so that expanding the law's protections to outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting religious uses from condemnation are likely to be considerably higher than the costs of RLUIPA's zoning protections.

Consider first the political economy dynamics. The best available justification for the Act's core zoning provision depends on a series of claims about the potential for religious discrimination in land use governance. Religious groups have been especially susceptible to discrimination in this country, according to this account. (6) Governmental discrimination based on religion is of course presumptively unconstitutional. (7) However, religious discrimination can be hard for judicial institutions to detect. Officials can easily offer neutral rationales for discriminatory zoning--justifications that, if subject only to rational basis review, may well withstand judicial scrutiny. Against this backdrop, RLUIPA functions as a prophylaxis, requiring close scrutiny of all land use regulations substantially burdening religious practice precisely became of the risk that intentional discrimination may otherwise go undetected. (8) Congress itself offered this justification when it passed the statute. (9)

There may be some reason to be concerned about discrimination by local zoning authorities. Discriminating through zoning is cheap for local government decisionmakers because zoning rarely triggers a compensation requirement and so does not affect the public fisc. (10) This is especially important in small local governments that tend to be both relatively majoritarian and sensitive to costs. (11) Where these conditions hold, officials who want to discriminate--for whatever reason--are likely to be drawn to zoning because it will allow them to effectively exclude religious groups at no expense.

By these lights, discrimination in zoning may be hard to uncover for certain structural reasons as well. Local zoning authorities are often governed by vague standards and have tremendous discretion. (12) Furthermore, they frequently provide only cursory written findings supporting their decisions, if any at all. (13) It is, of course, an open and contested empirical question whether such discrimination is actually commonplace. It may well not be sufficiently widespread to justify RLUIPA's broad protections. (14) Nevertheless, the strongest story that can be told in support of RLUIPA is that a prophylactic rule is needed because discrimination is so hard to unearth in the zoning context.

Condemnation simply does not present the same opportunity for unchecked discrimination. This is so in part because the constitutional necessity of just compensation means that condemnation will always present government decisionmakers with some financial costs to consider. (15) Discrimination is therefore literally more expensive. That does not necessarily mean that discrimination will comprise a smaller proportion of outright takings, as compared to zoning actions, but it does suggest a lower absolute level of antireligious targeting in condemnation. Bias is also likely to be more politically costly. Condemnation presents a poorer climate for discrimination because eminent domain has considerable political valence, as Kelo demonstrated. (16) Its exercise tends to be highly visible. (17) Because of those high costs--both economic and political--condemnation is usually the option of last resort for local governments. (18) Therefore, a prophylactic measure is far less attractive in the context of eminent domain because it would stymie less discrimination on the basis of religion. Put differently, it would deliver fewer benefits.

Our second rationale considers the costs of applying RLUIPA to condemnation. If RLUIPA were free, some might argue for extending its protection to condemnation despite its questionable benefits, on the theory that more protection against bias is always better. Undoubtedly, the kinds of political pressures that arise when the government condemns property will not necessarily prevent condemnation, even when untoward. Religious condemnees do not always win these political fights, and therefore a prophylactic approach might seem appropriate for condemnation, too. However, not only is the risk of discrimination lower for condemnation than zoning, but the costs of RLUIPA's prophylactic protections are much higher. Property rights and regulatory power are, in this context, locked in a zero-sum game: increasing religious groups' ability to resist condemnation comes at the expense of legitimate government action.

Admittedly, providing special protection against zoning is potentially quite costly, too. Religious assemblies may well be able to erect buildings that violate a local government's bulk limits. They may increase traffic, decrease parking, and draw a steady influx of outsiders into a community. (19) While many religious land uses may bring positive value to a community, some will not, depending on the particular use and on the...