RLUIPA: necessary, modest, and under-enforced.

AuthorLaycock, Douglas
PositionReligious Land Use and Institutionalized Persons Act - III. Under-Enforcement of RLUIPA through Conclusion, with footnotes, p. 1048-1072
  1. UNDER-ENFORCEMENT OF RLUIPA

RLUIPA has, if anything, been under enforced. This underenforcement has surfaced with respect to both the substantial-burden provision and the equal-terms provision, and it has resulted in lengthy litigation, and sometimes losses, in cases that churches should have easily won.

  1. Judicial Reluctance

    Some judges have appeared reluctant to fully enforce RLUIPA. There are several possible reasons for this reluctance. One is faith in the local land-use process. Some judges may believe that the local land-use process works fine; that churches do not often face either hostility or discrimination; or that federal judges should be deferential on such a traditionally local matter. (158) Such a judge's inclination would be to construe RLUIPA narrowly.

    A stronger version of this view would be that federal interference with local land-use regulation is illegitimate and to be minimized. This sentiment seems to be prevalent in state courts, where RLUIPA cases have sometimes received a hostile reception.

    An example is Greater Bible Way Temple of Jackson v. City of Jackson, (159) in which a church sought rezoning to build an assisted living center for the elderly and disabled. As discussed above, the court rejected the claim on the questionable but at least plausible ground that housing the elderly and disabled was not a religious exercise. (160) But it did not stop there. The court also held that even if housing the needy were a religious exercise, the church had not suffered a substantial burden; (161) that even if the church had suffered a substantial burden, the denial of rezoning was the least restrictive means of furthering a compelling interest in maintaining the character of the neighborhood; (162) and that even if the city had not shown a compelling governmental interest, RLUIPA did not apply to a denial of rezoning in the first place. (163) The court went out of its way to opine on four independent bases for rejecting the RLUIPA claim, even though any one of the four would have sufficed. In the course of doing so, it adopted extremely narrow definitions of "substantial burden" and "individualized assessment," and an extremely broad definition of "compelling governmental interest." As three justices pointed out, all but one of these determinations were unnecessary dicta. (164) But the effect has been to gut RLUIPA in Michigan state courts. In the nearly six years since Greater Bible Way, no reported RLUIPA claim in a Michigan state court has survived summary judgment. (165)

    Another example is Cambodian Buddhist Society of Connecticut, Inc. v. Planning and Zoning Commission of Newton, in which the Connecticut Supreme Court held that the denial of a "special exception" to build a Buddhist temple was not subject to RLUIPA. (166) Remarkably, the court held that the denial of a "special exception" did not involve an "individualized assessment" under RLUIPA--even though the denial of the special exception required the zoning commission to conduct an individualized review of the temple's potential impact on the surrounding area. (167) This decision is clearly wrong, goes against every other court to address the question (168) and clear congressional intent, (169) and dramatically reduces the applicability of RLUIPA's substantial-burden provision in Connecticut state courts.

    Even if the court's interpretation of "individualized assessment" were right, the judgment would still be wrong. The substantial-burden provision also applies when a substantial burden "would affect ... commerce ... among the several States." (170) The construction of a 6000-square-foot meeting hall, which would hold five major Buddhist festivals annually, (171) would plainly have affected commerce. The construction workers on the project would undoubtedly have been subject to federal labor and employment regulation based on the Commerce Clause, (172) the completed building would have been heated, cooled, and insured in interstate commerce, and the festivals, even if nonprofit, would have been an activity in commerce. (173) But churches and their lawyers have not litigated the Commerce Clause question in subsequent cases. There has been no reported RLUIPA decision in any Connecticut state court in the four years since Cambodian Buddhist. Lawyers appear to have read this opinion as a signal of general hostility to the statute.

    Setting aside federalism concerns, some judges are simply hostile to religious exemptions. This hostility can stem from a belief that religious exemptions are bad policy, that they are best left to the legislature, or that they violate the Establishment Clause. Only RLUIPA's substantial-burden provision actually creates a form of religious exemption, but judicial hostility to exemptions can spill over to the strong antidiscrimination protections in the equal-terms and nondiscrimination provisions, and to the exclusion-and-limitation provision, which is based on more general First Amendment protections that cover speech as well as religion. (174)

    The notion that RLUIPA violates the Establishment Clause should have been put to rest by the Supreme Court's decision in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos. (175) There, the Court unanimously upheld Title VII's religious exemption, explaining that "it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." (176) Nevertheless, in 2003, the Sixth Circuit struck down RLUIPA's prisoner provisions as a violation of the Establishment Clause. The Supreme Court unanimously reversed in Cutter v. Wilkinson, (177) explaining that RLUIPA's prisoner provision is "compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise," (178) and noting that under the Sixth Circuit's view, "all manner of religious accommodations would fall." (179) In addition to Amos and Cutter, the Court has unanimously stated the same rule three other times in well-considered dicta as it addressed related issues about religious exemptions. (180) This repeated unanimity makes clear that occasional decisions invalidating particular exemptions as potentially discriminatory (181) or too absolute (182) deal with special cases and do not undermine the general rule upholding exemptions to relieve burdens on the free exercise of religion.

    These cases are equally applicable to RLUIPA's land-use provisions. But despite five unanimous repetitions of the point, some courts continue to suggest that RLUIPA must be construed narrowly to avoid violating the Establishment Clause. As one court put it: "'RLUIPA occupies a treacherous narrow zone between the Free Exercise Clause ... and the Establishment Clause' and compels states to 'pursue a course of neutrality towards religion, favoring neither one religion over others nor religious adherents collectively over nonadherents.'" (183)

    Other courts have expressed hostility to religious exemptions as a matter of institutional competence. According to these courts, judges should not be in the business of drawing a line between religious accommodations and government interests; that task should be left to the political branches.

    A prominent example is Potter v. District of Columbia, (184) which involved the Religious Freedom Restoration Act, a statute with a substantial-burden provision that applies to all federal regulation. The question was whether requiring firefighters to shave their religiously mandated beards was the least restrictive means of furthering a compelling governmental interest. Judge Robertson was not happy with the question: "The dispute in these RFRA cases," he said, "is precisely the sort of police power matter that is best entrusted to the politically accountable branches." (185) In his view, "Courts have little competence" to decide the scope of religious exemptions, and "[w]ithout RFRA, it would not be the business of the judicial branch" to do so. (186) "Yet, whether or not it was wise to assign such questions to the courts, Congress has done so, and I am charged with answering them here." (187)

    Judge Robertson ultimately ruled in favor of the religious claimant. (188) But his sentiment--that judges should not second-guess the legislature's denial of a religious exemption--is common. It animated the Supreme Court's decision in Employment Division v. Smith. (189)

    In part for the reasons reviewed in Part I, we think this suspicion of religious exemptions is especially mistaken as applied to RLUIPA. Congress created a judicial check and balance to local land-use regulation of churches because that regulatory process is individualized and highly discretionary, subject to political pressures from constituents with no obligation to take any account of religious liberty, not infrequently hostile to religious uses in general or to minority religious uses in particular, and apart from RLUIPA, often subject only to highly deferential judicial review. But whatever its merits, the view that judges should not decide religious exemption cases is abroad in the land, and it likely plays a role in some of the under-enforcement of RLUIPA.

  2. Substantial Burden

    One area of under-enforcement is RLUIPA's substantial-burden provision, which requires the government to satisfy strict scrutiny whenever a land-use regulation imposes a substantial burden on religious exercise. (190) RLUIPA does not define "substantial burden." In accordance with the legislative history, several courts have held that it should be interpreted "by reference to Supreme Court jurisprudence." (191) This congressional deference to precedent was a compromise. We never found out whether Congress could have agreed on a definition of burden, because People For the American Way (PFAW) steadfastly insisted that it would oppose any bill...

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