RLUIPA: necessary, modest, and under-enforced.

• Author: Laycock, Douglas
• Position: Religious Land Use and Institutionalized Persons Act - Introduction through II. Moderate Enforcement of RLUIPA, p. 1021-1048

Introduction I. The Need for RLUIPA A. Religious or Racial Hostility B. NIMBY Resistance C. Taxes and Commerce D. Collective Action II. Moderate Enforcement of RLUIPA A. No Avoiding the Land-Use Process B. No Free Pass for Commercial Activities C. No Substantial Burden When There Are Ready Alternatives III. Under-Enforcement of RLUIPA A. Judicial Reluctance B. Substantial Burden C. Equal Terms D. Congregation Etz Chaim v. City of Los Angeles Conclusion INTRODUCTION

Churches are often unpopular in the zoning context. (1) They are unpopular in residential zones because they allegedly generate too much traffic, noise, and congestion. They are unpopular in commercial zones because they allegedly generate too little traffic and not enough "synergy" with surrounding businesses. And they are unpopular with city officials because they are tax exempt. Sometimes they are unpopular simply because their religion is unpopular--as with Muslims after 9/11 and sometimes with other minority faiths.

But building churches is also a core First Amendment activity. In every major religion, believers gather together for shared rituals and communal expressions of faith. They cannot do so without a physical space. Thus, a restriction on the ability to build a church is a restriction on the free exercise of religion.

The zoning process exists to implement the goals of land-use regulation; the process, and the activists and decision makers within that process, often have little concern for the countervailing interests protected by the First Amendment. In most cases, the zoning process is highly individualized and discretionary. In most jurisdictions, local officials have broad discretion to deny permits and exclude churches based on vague standards--such as whether a use is "consistent with the character of the neighborhood," or "consistent with the health, safety, and welfare of the community." As a result, core First Amendment rights are placed at the mercy of a standardless licensing system that makes it easy for local officials to disguise regulation of churches that is arbitrary, discriminatory, or both.

To remedy this problem, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). In nine hearings over the course of three years, Congress amassed substantial evidence--both anecdotal and statistical--of widespread resistance to churches in the zoning context, including discrimination against smaller and less popular faiths. (2) These hearings concerned a broader bill, the proposed Religious Liberty Protection Act (RLPA), that never passed. (3) RLUIPA was carved out of that bill, passed with overwhelming, bipartisan support, (4) and was signed into law by President Clinton on September 22, 2000. (5)

The land-use section of RLUIPA has four substantive provisions. One subsection provides for a form of religious exemption: if a land-use regulation substantially burdens the free exercise of religion, the government must show that that burden serves a compelling interest by the least restrictive means. (6) Two subsections directly address discrimination: a jurisdiction cannot treat a religious assembly or institution on less than equal terms with a secular assembly or institution, (7) and it cannot discriminate on the basis of religion or religious denomination. (8) And one subsection directly addresses exclusion: land-use regulation may not totally exclude religious assemblies (9) or unreasonably limit religious assemblies, institutions, or structures within a jurisdiction. (10) The substantial-burden and equal-terms provisions have been the most important and generated the most litigation. A substantial-burden claim, but not a claim under any of the other sections, requires an additional showing to demonstrate congressional authority to regulate: either an effect on commerce (11) or that the land-use regulator had authority to make an individualized assessment of the proposed use of the property. (12) And only the substantial-burden section permits a defense of compelling government interest. (13)

Since 2000, RLUIPA has become a pillar of civil rights protection for churches. Churches have litigated numerous cases to favorable judgment. Many more have settled. The Department of Justice (DOJ) has filed numerous cases challenging outright discrimination against churches. And RLUIPA has been uniformly and repeatedly upheld against constitutional challenge. (14)

Yet some criticisms of RLUIPA persist. This Article addresses two of the most common. One criticism is that RLUIPA was unnecessary. According to this critique, there is "precious little proof of discrimination" in the land-use context. (15) And even if there were, churches could sue under the Free Exercise Clause.

The other common criticism is that RLUIPA dramatically slants the playing field in favor of churches, giving them nearly carte blanche to ignore local zoning laws. (16) According to this criticism, local officials have been "terrorized" by religious landowners (17) and have begun to "rubber stamp" any new religious development, to the detriment of local communities. (18)

Both of these criticisms are unfounded. As explained in Part I, twelve years of precedent show that RLUIPA was and is needed. Churches continue to face hostility and discrimination in the zoning context, and RLUIPA rightly assists courts in bringing the First Amendment to bear.

As explained in Part II, RLUIPA does not give churches carte blanche to ignore zoning regulations. Rather, most courts have reasonably interpreted RLUIPA to require cities to make adequate property available for churches. But churches still lose when they overreach.

As explained in Part III, RLUIPA is actually somewhat underenforced. Some judges have shown a reluctance to strike down local zoning decisions under a federal law--either because of their faith in the local zoning process, their commitment to federalism, or their hostility to religious exemptions. Thus, in important ways and in many courtrooms, RLUIPA still falls short of providing full protection for First Amendment rights.

1. THE NEED FOR RLUIPA

   Some scholars have criticized RLUIPA as unnecessary. But numerous cases show that churches continue to face hostility in the zoning context. It is easy to hide that hostility, given the highly discretionary nature of zoning decisions. Thus, RLUIPA has helped courts ferret out hostility and protect the First Amendment rights of churches.

   1. Religious or Racial Hostility

      In some areas of the country, some churches are unpopular because of religious or racial discrimination. Many cases show that discrimination remains a significant problem.

      The most obvious example is widespread hostility to Muslim mosques. In 2010, a proposal to build an Islamic community center near (not at or on) Ground Zero gained nationwide attention and significant opposition. (19) But that was only the most high-profile dispute. In the last three years, the Pew Research Center has documented community resistance to thirty-seven different mosques or Islamic centers. (20) Often, the resistance is phrased in terms of concerns about traffic, parking, noise, or property values, but sometimes the resistance is overtly anti-Islamic. (21) When this Article was presented, all three speakers agreed that there is discrimination against Muslims. (22)

      Muslims are not the only religious group that faces hostility. Orthodox Jews, and especially Hasidic Jews, have also faced strong resistance in many communities. In part, this is because Orthodox Jews must live within walking distance of their synagogue in order to comply with religious rules concerning the Sabbath, so they tend to cluster in a particular neighborhood. Sometimes this clustering is viewed as a threat--because Hasidic Jews are sometimes viewed as cultural outsiders, as not supporting the public schools, or as exercising undue political clout by voting as a bloc. Thus, some communities have opposed the location of a new Orthodox synagogue for fear that Orthodox Jews will move in and take over the community.

      One example is Rockland County, New York, where Orthodox Jews have faced bitter opposition and have had to file numerous RLUIPA lawsuits. In LeBlanc-Sternberg v. Fletcher, (23) which predates the enactment of RLUIPA, the court found ample evidence to support a jury finding that the Village of Airmont was created for the express purpose of excluding Hasidic Jews. More recently, in United States v. Village of Airmont, (24) the Department of Justice alleged that the Village enacted a ban on boarding schools with the specific motive to keep out Hasidic Jews, who educate their young men in boarding schools called yeshivas. After a federal court rejected the Village's motion to dismiss, the Village settled the case by agreeing to amend its zoning code and permit a yeshiva. (25) Rockland County may be unique in the frequency and persistence of efforts to exclude Orthodox Jews, but there are similar disputes in smaller numbers elsewhere. (26) Other minority faiths have also faced a disproportionate share of opposition in the zoning context. Several prominent cases have involved Sikhs (27) or Buddhists. (28)

      Another example is Centro Espirita Beneficente Uniao do Vegetal (UDV), a Brazilian-based religion that uses a mildly hallucinogenic tea in its services. (29) The church's legal right to practice this sacrament has been vindicated in the district court, the court of appeals, and 8-0 in the Supreme Court of the United States, (30) but the church has now been forced to start...