And congress said, "let there be religious land use": a RLUIPA primer.

• Author: Rohr, Marc
• Position: Religious Land Use and Institutionalized Persons Act of 2000

A Jewish congregation seeks to hold weekly religious services in a house located in a part of the city zoned for residential use only; must the city allow it to do so? A Christian congregation wishes to set up a church in storefront premises in a strip mall zoned for commercial use only; must the town allow it to do so? In each case, will the interests that have long led even well-motivated government actors to reject requests for variances and special use permits--such as reducing traffic, parking problems, noise, and congestion--suffice to rebut the cries of "religious freedom"?

As most of the city attorneys of this country are now undoubtedly aware, these questions have become much more difficult to answer in light of the enactment of the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). (1) The core provision of the section of the act entitled "Protection of Land Use as Religious Exercise" (2) is this:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (3)

The statute goes on to provide: "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." (4)

Why did Congress provide such extraordinary protection to religious institutions in the context of local zoning decisions? According to Senators Hatch and Kennedy:

Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. (5)

Often, the statement continued, "discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or 'not consistent with the city's land use plan." (6)

The enactment of RLUIPA has led to an explosion of litigation and a growing body of judicial decisions interpreting RLUIPA, as religious institutions throughout the nation have challenged (and continue to challenge) local zoning restrictions. (7) The key issue--as to which courts are divided--is the question of the what constitutes a "substantial burden on ... religious exercise," within the meaning of the statute. The U.S. Court of Appeals for the 11th Circuit has recently contributed to this judicial debate through its decision in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).

To fully understand the significance of RLUIPA, it is appropriate to begin by addressing the question of why this statute was necessary. Why is the statutory standard of "strict scrutiny" not redundant in light of the Free Exercise Clause of the First Amendment to the U.S. Constitution?

Constitutional Background

From 1963 to 1990, strict scrutiny was indeed the standard utilized by the courts in assessing the constitutionality of governmental actions which substantially burdened the free exercise of religion. (8) In 1990, however, in the case of Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), a majority of the Supreme Court ruled that strict scrutiny was not the appropriate test to be used in evaluating a Free Exercise Clause challenge to "a neutral, generally applicable law." (9) Thus, a claim that one is constitutionally entitled to be exempted, on religious grounds, from having to comply with a "neutral, generally applicable" law unless the government can show a compelling reason for not allowing the exemption is, after the Smith decision, no longer a valid claim; such a claim will, in fact, simply fail, as a matter of constitutional law.

Smith made clear, however, that a Free Exercise Clause claim will trigger the exercise of strict scrutiny if either the government targets a religious practice, i.e., "if it [seeks] to ban such acts or abstentions only when they are engaged in for religious reasons;" (10) or if the government refuses to grant an exemption to one who seeks it on religious grounds, in the context of a governmental program "where the state has in place a system of individual exemptions." (11)

In 1993, Congress reacted to the Smith decision by enacting the Religious Freedom Restoration Act (RFRA), whose core directive was that government in this country "shall not substantially burden religious exercise even if the burden results from a rule of general applicability," unless (in essence) the government's justification for so doing could survive strict scrutiny. (12) But in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled that Congress, which had relied on [section]5 of the 14th Amendment (which gives Congress the "power to enforce" the other provisions of that amendment (13)) in enacting RFRA, had exceeded its [section]5 power in this instance. For the majority, Justice Kennedy explained that "[l]egislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the clause. Congress ... has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation." (14)

Present Viability of Constitutional Challenge

* Free Exercise Clause

A Free Exercise challenge can still be brought against a zoning decision today, RLUIPA notwithstanding, but does such a constitutional claim have any chance of succeeding? If the zoning ordinance in question is seen by the court as a neutral law of general applicability, then the answer should be no. In Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), for example, the court found the zoning ordinance to be neutral and generally applicable, despite its specific exclusion of "churches" from certain zones, because the ordinance "includes 'church' as just one among many and varied religious and nonreligious regulated uses." (15)

The answer is yes, however, in two instances. The first such instance is where a court is persuaded that a zoning law fits into the "individualized exemption" concept, and that the denial of an exemption imposes a "substantial burden" on the religious entity. (16) Some courts have found the "individualized exemption" concept to be applicable in these circumstances, on the ground that a statutory scheme that contemplates the possibility of special use permits, depending on the circumstances, is necessarily one that allows for individualized assessments. (17)

But few courts have found that the refusal to allow a church, for example, to exist in a particular location amounts to the requisite "substantial burden" on the practice of religion that is necessary to trigger the use of strict scrutiny in a Free Exercise Clause analysis. In fact, this author is aware of only one reported judicial decision that explicitly embodied such reasoning. (18) In Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002), a federal district court entered a preliminary injunction in favor of a church which, because of its large and growing membership, sought to build a new facility on land not zoned for religious use. In finding the requisite "substantial burden" on religious practice, the court said that "[p]reventing a church from building a worship site fundamentally

inhibits its ability to practice its religion." (19)

This reasoning, however, has essentially been rejected by virtually every other court that has considered the issue. (20) The prevailing (and, in this author's opinion, better) view is that generally there is no connection between adhering to the dictates of one's religion and worshiping collectively in a particular geographic location; thus, the freedom to practice one's religion is not meaningfully impaired by a governmental act making particular real property unavailable for that purpose. Long...