I. First Amendment Free Exercise Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

I. First Amendment Free Exercise Claims

What better claims to bring along with RLUIPA's statutory protections than arguments pursuant to the very constitutional touchstone upon which RLUIPA was based: the First Amendment guarantee of free religious exercise.

The First Amendment, in its entirety, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."¹ The italicized provision, known more commonly as the Free Exercise Clause, has long been interpreted by the Supreme Court as guaranteeing "freedom for religious organizations, an independence from secular control or manipulation."² Indeed, much of the nation's founding history can be fairly characterized as an "escape" from excessive governmental control of religion.³ The clause accordingly demonstrates the high regard this country has for religious exercise.

This high regard for religious freedom also carries over into the land use and zoning realms. Religious entities are often subjected to unequal treatment when compared to their secular counterparts with respect to municipalities' land use and zoning decisions. This unequal treatment may arise for a variety of reasons. Perhaps the municipality prefers a secular entity to occupy a certain property rather than a religious organization in order to obtain property tax revenue, since the U.S. Supreme Court has long held that houses of worship are exempt from paying property taxes.⁴ Or a municipality's actions may be more blatant and based on an actual discriminatory animus against the religious institution. Whatever the case, it has always been a top priority in this country to ensure that religious institutions are given the opportunity to freely exercise their beliefs without impermissible governmental interference.

The Free Exercise Clause has been frequently litigated in numerous federal cases, many of which also included RLUIPA claims. As noted in chapter 1, prior to 1990, the Supreme Court's free exercise jurisprudence provided ample protection to the religious entities in land use disputes. The text of the First Amendment seemed simple enough to interpret on its face, but the federal courts have addressed countless issues regarding the appropriate interpretation of the various clauses.

Everything changed, however, in 1990 with the Supreme Court's free exercise opinion in Employment Division v. Smith.⁵ That case involved two individuals who were fired from their employment at a drug rehabilitation center after ingesting peyote, a hallucinogen, at a religious ceremony for their Native American church.⁶ Oregon had a criminal law that labeled peyote a "controlled substance" and provided a blanket prohibition on use of the drug in the state.⁷ After they were fired, the individuals sought unemployment benefits from Oregon's employment division. The employment division denied the requests, finding the individuals ineligible based on their firings for work-related misconduct.⁸ The individuals claimed that the state's conduct violated the Free Exercise Clause, but the Court disagreed.⁹

The Court explained that when a particular religious activity is burdened by the mere incidental effect of a valid, generally applicable law, the First Amendment is not offended.¹⁰ Specifically, the Court explained:

We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary[,] "[c]onscientious scruples have not . . . relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."¹¹

Since the Oregon criminal law did not attempt to regulate individuals' religious beliefs, the Court deemed it a "neutral law of general applicability."¹² Therefore, the employment division's decision to dismiss the individuals' unemployment compensation claims was entirely consistent with the Free Exercise Clause, and the First Amendment did not require religious exemptions from generally applicable laws that incidentally burden religious conduct.¹³

The Smith decision gave rise to Congress passing the Religious Freedom Restoration Act (RFRA), then later the RLUIPA.

Soon after the Smith case as decided, the Court expanded its holding in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.¹⁴ Lukumi in some ways tempered the austerity of Smith by carving a path to relief under the Free Exercise Clause when government impermissibly targets and thereby unduly restrains a particular religious activity. The case involved a Santeria congregation that attempted to establish a church in Hialeah, Florida. Santeria translates to "the way of the saints," and the faith originated with slaves who traveled from Africa to Cuba, thereby infusing their traditional African religious beliefs with various aspects of Roman Catholicism, including the iconography of Catholic saints and the Catholic sacraments.¹⁵ Other important aspects of the Santeria faith include animal sacrifice and fulfillment of one's religious destiny through a personal relationship with the orishas, which are spirits to which Santeria followers express their devotion.¹⁶

When the church leased property within the city, the city council held an emergency session at which it passed a resolution acknowledging residents' concerns over religious practices they deemed "inconsistent with public morals, peace, or safety," and the council announced that the city was committed to prohibit these types of practices.¹⁷ The city also announced several ordinances pertaining to animal cruelty and the sacrificing and slaughtering of animals.¹⁸

In response to the new ordinances, the church filed suit and alleged that the city violated its rights under the Free Exercise Clause of the First Amendment.¹⁹ The district court found there were no violations of the Free Exercise Clause, instead determining that the ordinances were meant to end animal sacrifice in the city, not to exclude the church.²⁰ The 11th Circuit affirmed, but the Supreme Court reversed and found for the church.²¹

The Court found that the main purpose of the ordinances was to suppress the main aspect of Santeria rituals. Further, the Court determined that many of the ordinances, when considered together, solely addressed the religious exercise of Santeria members.²² For example, one of the ordinances pertaining to animal sacrifices made exceptions for practically all killings except those done for religious sacrifice.²³ Also, an ordinance prohibited keeping animals with the intent to slaughter them for food. Again, however, the ordinance provided numerous exemptions, including one for kosher slaughter.²⁴ The kosher exemption especially made it clear to the Court that the ordinance was specifically targeting Santeria sacrifices.²⁵ Another ordinance prohibited unnecessary killing of an animal, but provided exemptions for "hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary."²⁶ These broad exemptions further supported the Court's notion that the city devalued religious reasons for animal slaughter by deeming them less important than secular reasons, and the city's devaluation constituted discrimination against the church in violation of the Free Exercise Clause.²⁷

When the "purpose" of a law is to suppress religious exercise, as in Lukumi, the law will be subject to the same "strict scrutiny" standard of RFRA and RLUIPA, and it "will survive strict scrutiny only in rare cases."²⁸ The framework the Court set forth for subjecting a claim to this standard is first "[t]o determine the object of a law," beginning "with its text."²⁹ But just because a law is neutral and generally applicable on its face does not mean that it is not discriminatory or intended to restrict religious exercise.³⁰ Free Exercise Clause jurisprudence is more nuanced, since the clause both "forbids subtle departures from neutrality"³¹ and "covert suppression of particular religious beliefs."³² Courts, therefore, are permitted to consider

direct and circumstantial evidence . . . includ[ing], among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.³³

In sum, courts will very closely scrutinize a law challenged under the Free Exercise Clause regardless of its surface neutrality "if the object . . . is to infringe upon or restrict practice because of [an organization's] religious motivation."³⁴

Though RLUIPA is the primary vehicle for religious land use litigation claims, it is not uncommon for litigants to both include and succeed on a coterminous constitutional argument under the Free Exercise Clause.³⁵ It can nonetheless be more difficult to succeed on a Free Exercise religious land use claim, as opposed to RLUIPA claim,³⁶ because Free Exercise Clause jurisprudence focuses on religious discrimination whereas RLUIPA land use claims do not require a finding of religious discrimination. In addition, courts tend to adhere to the doctrine of constitutional avoidance, which dictates that they should not address a constitutional issue if a case can be resolved on other grounds.³⁷ Because RLUIPA protections closely mirror those of the Free Exercise Clause, courts may, for an interrelated reason, decline to address a constitutional claim simply because the relief granted on a successful claim of that variety would often be no...