Religious Organizations provided new protections under a New Federal Law
Article summary. A new federal law provides important new protections of religious freedom in the contexts of zoning laws and institutionalized persons. Religious congregations whose religious freedom is burdened by the actions of state or local zoning authorities can sue for damages and attorneys’ fees. In addition, the Act protects the exercise of religion by persons who are institutionalized in various state and local facilities, including prisons, hospitals, and retirement homes.
On September 22, 2000, President Clinton signed into law the Religious Land Use and Institutionalized Persons Act (“RLUIPA” or “the Act”). The Act, which had been enacted by unanimous consent of both the Senate and House of Representatives, addresses two areas where religious freedom has been threatened-land use regulation and persons in prisons, mental hospitals, nursing homes and similar institutions. The Act will ensure that if a government action substantially burdens the exercise of religion in these two areas, the government must demonstrate that imposing that burden serves a “compelling public interest” and does so by the “least restrictive means.” In addition, with respect to land use regulation, the Act specifically prohibits various forms of religious discrimination and exclusion. This feature article will review the background of the new law, explain each of its major provisions, and then provide several practical examples that will illustrate the significance of the Act to religious congregations.
Background
(1) prior to 1990 the government needed a compelling interest to restrict the free exercise of religion
The first amendment to the United States Constitution protects a number of fundamental rights, including the free exercise of religion. The first amendment specifies that “Congress shall make no law … prohibiting the free exercise of religion.” For many years, the United States Supreme Court interpreted this language to mean that the government could not impose substantial burdens on the exercise of sincerely-held religious beliefs unless its actions were justified by a “compelling state interest” that could not be served through “less restrictive means.” In a 1990 ruling, the Supreme Court revised its understanding of the “free exercise” clause. Employment Division v. Smith, 494 U.S. 872 (1990).
(2) the Smith case (1990)-no compelling interest needed to sustain “neutral laws of general applicability” that impose burdens on religious belief and practice
The Smith case addressed the question of whether the state of Oregon could deny unemployment benefits to employees who had been terminated for using illegal drugs as part of a religious ceremony. Oregon law prohibits the intentional possession of a “controlled substance,” including the drug peyote. Two employees of a private drug rehabilitation organization were fired from their jobs because they consumed peyote for “sacramental purposes” at a ceremony of the Native American Church. The two individuals applied for unemployment benefits under Oregon law, but their application was denied on the grounds that benefits are not payable to employees who are discharged for “misconduct.” The two former employees claimed that the denial of benefits violated their constitutional right to freely exercise their religion. The Supreme Court ruled that (1) the constitutional guaranty of religious freedom did not prohibit a state from criminalizing the sacramental use of a narcotic drug, and (2) the state of Oregon could deny unemployment benefits to individuals who were fired from their jobs for consuming peyote.
The Court began its opinion by noting that “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, the constitutional guaranty of religious freedom “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law [prohibits] conduct that his religion prescribes.”
• Key point. The Court did not throw out the “compelling state interest” requirement in all cases involving governmental restrictions on religious freedom. Rather, the Court stated that this requirement does not apply to restrictions caused by a “neutral law of general applicability.” A law or other government act that targets or singles out religious organizations must be supported by a compelling state interest. Further, as noted below, the compelling state interest requirement applies if a second constitutional right is burdened by a law or other government act.
The real significance of the Court’s ruling was its refusal to apply the “compelling state interest” test as requested by the discharged employees. As noted above, the Supreme Court previously had interpreted the constitutional guaranty of religious freedom to mean that the government could not impose substantial burdens on the exercise of sincerely-held religious beliefs unless its actions were justified by a “compelling state interest” that could not be served through less restrictive means. The former employees argued that the Oregon law’s denial of unemployment benefits to persons using peyote for sacramental purposes was not supported by a “compelling state interest” and accordingly could not be applied without violating the constitution.
The Court justified its refusal to apply the “compelling state interest” test by noting that
- it had not applied the test in a number of its recent decisions,
- it had never found a state law limiting religious practices invalid on the ground that it was not supported by a compelling state interest, and
- the compelling state interest test should never be applied “to require exemptions from a generally applicable criminal law.”
The Court rejected the former employees’ suggestion that the “compelling state interest” test be applied only in cases involving religiously-motivated conduct that is “central” to an individual’s religion. This would require the courts to make judgments on the importance of religious practices-and this the civil courts may never do. The only options are to apply the “compelling state interest” test to all attempts by government to regulate religious practices, or to not apply the test at all. Applying the test in all cases involving governmental attempts to regulate religious practices would lead to “anarchy,” since it would render “presumptively invalid” every law that regulates conduct allegedly based on religious belief. This would open the floodgates of claims of religious exemption
from civic obligations of almost every conceivable kind-ranging from compulsory military service to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The first amendment’s protection of religious liberty does not require this.
The Court’s ruling represents a clear departure from its previously well-established understanding of the constitutional guaranty of religious freedom. No longer will a state need to demonstrate that a “compelling state interest” supports a law that prohibits or restricts religious practices. This is unfortunate, and will tend to make it more difficult to prove that a state’s interference with religious practices violates the guaranty of religious freedom. Four of the Court’s nine justices disagreed with the Court’s analysis, and with the virtual elimination of the “compelling state interest” test. The minority asserted that the Court’s ruling diminished the guaranty of religious liberty by making it more difficult for persons to prove a violation of this fundamental constitutional guaranty. One of the dissenting Justices lamented that the Court’s decision tilts the scales “in the state’s favor,” and “effectuates a wholesale overturning of settled law concerning the religion clauses of our Constitution. One hopes that the Court is aware of the consequences ….”
(3) Congress responds – the Religious Freedom Restoration Act (1993)
The consequences of the Supreme Court’s reinterpretation of the first amendment guaranty of religious freedom were predictable. Scores of lower federal courts and state courts upheld laws and other government actions that directly restricted religious practices. In many of these cases, the courts based their actions directly on the Smith case, suggesting that the result would have been different had it not been for that decision.
Congress responded to the Smith case by enacting the Religious Freedom Restoration Act by a unanimous vote of both houses. RFRA was signed into law by President Clinton in 1993. RFRA states its purposes as follows: “(1) to restore the compelling interest test … and to guarantee its application in all cases where free exercise of religion is burdened; and (2) to provide a claim or defense to persons whose religious exercise is burdened by government.”
The key provision of RFRA is section 3, which specifies:
(a) In General. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) ….
(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial Relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
In practical terms, how did the enactment of RFRA affect local churches and other religious organizations? There is little doubt that it provided significant protections to the exercise of religion. Any law or government practice (whether at the local, state, or federal level) that “burdened” the exercise of religion was legally permissible only if the law or practice (1) was in furtherance of a compelling governmental interest, and (2) was the least restrictive means of furthering that compelling governmental interest. These were difficult standards to meet. As the Supreme Court itself observed in 1993, the concept of a “compelling governmental interest” is a very difficult standard for the government to satisfy:
A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the first amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “watered … down” but “really means what it says.” A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases …. Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
In the years following the enactment of RFRA a number of government attempts to regulate or interfere with religious practices were struck down by the courts on the basis of the Act.
(4) The City of Boerne case (1997)
The city council of Boerne, Texas, passed an ordinance authorizing the city’s Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must pre-approve construction affecting historic landmarks or buildings in a historic district. Soon afterwards, the Archbishop of San Antonio applied for a building permit to allow the expansion of St. Peter’s Catholic Church in Boerne. The church was so overcrowded that several persons had to be turned away from worship services because the existing facility was not large enough to accommodate them. City authorities, relying on the ordinance and the designation of a historic district (which, they claimed, included the church), denied the application. The Archbishop filed a lawsuit challenging the city’s denial of the permit. The lawsuit relied upon RFRA as one basis for relief from the refusal to issue the permit. A federal district court concluded that by enacting RFRA Congress exceeded the scope of its authority. A federal appeals court reversed this decision, and upheld the constitutionality of RFRA. The city appealed to the United States Supreme Court. The appeal addressed the question of the constitutional validity of RFRA.
The Supreme Court ruled that RFRA was unconstitutional since Congress did not have the authority to enact it. The Court began its opinion by noting that the federal government “is one of enumerated powers.” That is, each branch (legislative, executive, judicial) can only do those things specifically authorized by the Constitution. The first amendment specifies that “Congress” cannot enact legislation “prohibiting the free exercise” of religion. Of course, “Congress” refers to the federal legislature, and so the first amendment guaranty of religious freedom, as originally worded, was not a limitation on the power of state or local governments. In 1868, the fourteenth amendment to the Constitution was ratified, which prohibits any state from depriving “any person of life, liberty, or property without due process of law.” Then, in 1940, the Supreme Court ruled that the “liberty” protected by the fourteenth amendment against state interference included the first amendment guaranty of religious freedom. For the first time, this limitation upon the power of Congress to prohibit the free exercise of religion now applied to state and local governments as well. The fourteenth amendment contained a section (section 5) which gave Congress “power to enforce, by appropriate legislation, the provisions of this [amendment].” Congress pointed to this section as the source of its authority to enact RFRA. Members of Congress insisted that they were only protecting by legislation one of the liberties guaranteed by the fourteenth amendment that had been diminished by the Supreme Court’s ruling in Smith.
The Supreme Court ruled that section 5 of the fourteenth amendment did not authorize Congress to enact RFRA. It acknowledged that section 5 authorizes Congress to “enforce” the fourteenth amendment, and therefore Congress can enact legislation “enforcing the constitutional right to the free exercise of religion.” However, the Court then observed:
Congress’ power under section 5, however, extends only to enforcing the provisions of the fourteenth amendment …. The design of the amendment and the text of section 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the fourteenth amendment’s restrictions on the states. Legislation which alters the meaning of the free exercise [of religion] clause cannot be said to be enforcing the clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the fourteenth amendment] ….”
If Congress could define its own powers by altering the fourteenth amendment’s meaning, no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be “on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it.” Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained [therein].
The Court conceded that it is not always clear whether Congress is “enforcing” the fourteenth amendment or making unauthorized substantive changes in the Constitution. However, it insisted that there must be a “proportionality between the injury to be prevented or remedied and the means adopted to that end.” The Court concluded that this test was not met in this case, since RFRA was not a “proportional” response to the “injury to be prevented or remedied.” Rather, RFRA was an expansive law that was enacted to address minimal threats to religious freedom. The Court noted that
sweeping coverage ensures [RFRA’s] intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the federal, state, and local governments. RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.
Further, this massive response was not warranted by any significant threat to religious freedom:
RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the [congressional] hearings mentions no episodes occurring in the past 40 years …. The absence of more recent episodes stems from the fact that, as one witness testified, “deliberate persecution is not the usual problem in this country.” Rather, the emphasis of the [congressional] hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs … and on zoning regulations and historic preservation laws (like the one at issue here), which as an incident of their normal operation, have adverse effects on churches and synagogues …. It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress’ concern was with the incidental burdens imposed, not the object or purpose of the legislation.
The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. Requiring a state to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If “compelling interest” really means what it says … many laws will not meet the test …. [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise …. [RFRA] would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the states’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the states and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the free exercise clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry ….
It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.
• Key point. Several courts have ruled that the Supreme Court in the Boerne case only invalidated RFRA as it pertains to local and state governments, and that RFRA remains a viable limitation on attempts by the federal government to restrict the exercise of religion.
(5) The Religious Liberty Protection Act of 1999
In 1999 the House of Representatives passed overwhelmingly (306-118) the Religious Liberty Protection Act of 1999. The express purpose of this legislation was to “repeal” the Supreme Court’s City of Boerne decision and reinstate the requirement that any state or local law that imposes a substantial burden on the exercise of religion is invalid unless supported by a compelling governmental interest. However, this legislation was not acted on by the Senate, and so never became law.
(6) The Religious Land Use and Institutionalized Persons Act of 2000
This most recent legislation is analyzed below.
The Religious Land Use and Institutionalized Persons Act of 2000
Last September President Clinton signed the Religious Land Use and Institutionalized Persons Act of 2000 into law. RLUIPA, like RFRA and the Religious Liberty Protection Act of 1999, seeks to protect religious liberty. However, its protections are far more limited. Rather than protecting religious practices from all governmental encroachments, it focuses only on zoning regulations and persons who are institutionalized (in prisons, hospitals, and retirement homes).
Protection #1-zoning and landmarking
restoration of the compelling governmental interest requirement
RLUIPA specifies that state and local governments cannot subject religious organizations to a zoning or landmarking law that imposes substantial burdens on the free exercise of religion unless the law is supported by a compelling governmental interest:
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.
• Key point. RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”
• Key point. A “landmarking” law is a state or local law that imposes limitations on the demolition, remodeling, or alteration of a building that has been designated as an historic “landmark.”
Prohibition of “Discrimination and Exclusion”
In addition to restoring the compelling governmental interest requirement in the context of state and local zoning and landmarking laws that impose substantial burdens on the exercise of religion, RLUIPA also prohibits attempts by state and local governments to discriminate against, or exclude, religious organizations when applying zoning and landmarking laws. There are three specific prohibitions:
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.
No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
No government shall impose or implement a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
The third of these three protections is probably the most important for churches since it is common for local governments to require churches to obtain “special use permits” in order to build new facilities in certain areas. RLUIPA requires that local officials cannot “unreasonably limit” church structures within their jurisdiction.
Protection #2-institutionalized persons
The second major purpose of RLUIPA is to protect the religious practices of institutionalized persons. The Act provides:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
The term “institution” is defined as any facility that is owned, operated, or managed by a state or local government and that is (1) for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped; (2) a jail, prison, or other correctional facility; (3) a pretrial detention facility; (4) for juveniles who are being held awaiting trial; or (5) providing skilled nursing, intermediate or long-term care, or custodial or residential care.
• Key point. Privately owned and operated facilities are not “institutions” if the sole “nexus” between the facility and the state is licensing by the state, or the receipt of funds by the facility under the Social Security Act on behalf of persons residing in the facility.
Constitutional Validity
Will the courts rule that RLUIPA, like RFRA, represents an unconstitutional attempt by Congress to change the meaning of the first amendment by requiring that any state or local law that substantially burdens the exercise of religion in the contexts of zoning and institutionalized persons must be supported by a “compelling governmental interest,” even if it is a “neutral law of general application” that is presumably valid under the Supreme Court’s Smith ruling? Possibly not. Congress carefully attempted to avoid such a fate in drafting RLUIPA through the following precautions:
“Enforcement”
In the City of Boerne decision, the Supreme Court noted that Congress may enforce the protections of the Constitution, including the free exercise of religion, but it cannot alter the meaning of them. The Court conceded that it is not always clear whether congressional attempts to enforce the Constitution in fact impermissibly change the meaning of it. It provided the following clarifications:
1. Is the law a “proportional response” to a constitutional violation? In order for an Act of Congress to be characterized as a permissible enforcement of a constitutional right there must be a proportionality between the injury to be prevented or remedied and the means adopted to that end.” In the City of Boerne case the Supreme Court concluded that RFRA did not meet this test, for two reasons:
- RFRA was an “expansive law” that applied to restrictions on religion by every level of government (local, state, and federal). In contrast, RLUIPA applies only to state and local governmental practices that restrict the exercise of religion.
- RFRA applied to all burdens on the exercise of religion. In contrast, RLUIPA applies only to state and local governmental actions that impose substantial burdens on the exercise of religion in the context of (1) zoning and landmarking laws, and (2) institutionalized persons.
• Key point. RLUIPA is far less expansive than RFRA, and therefore it is more likely that the courts will view it as a “proportional response” to violations of the first amendment guaranty of religious freedom. As a proportional response, it is more likely to be viewed as a legitimate “enforcement” of the first amendment rather than an attempt to change its meaning.
2. Is the law warranted by a significant threat to a constitutional right? In the City of Boerne case the Supreme Court concluded that RFRA was not warranted by a significant threat to the first amendment guaranty of religious freedom. In particular, the Court pointed out that Congress failed to note any “examples of modern instances of generally applicable laws passed because of religious bigotry.”
In contrast, in enacting RLUIPA Congress cited numerous examples of violations of religious freedom in the contexts of zoning and institutionalized persons. These included many cases cited in a congressional committee report accompanying the Religious Liberty Protection Act of 1999:
Government officials in Arapahoe County, Colorado, enforced specific numerical restrictions on the number of students that may be enrolled in religious schools, and indeed, on the number of persons in congregations of various churches, as a way of limiting growth. In Douglas County, Colorado, administrative officials proposed restricting the operational hours of a church the same way they do any “commercial” facility. Limiting its operational hours means that a church could not lawfully engage in any act of service or devotion during those forbidden hours-not even devotions such as prayer vigils, which attract no crowd ….
Religions are practiced by communities of believers. At the very core of religious liberty is the ability to assemble for worship. Finding a location for a new church, however, can be extremely difficult in the face of pervasive land use regulation and the nearly unlimited discretionary power of land use authorities. The frustration of this core first amendment right is not limited to certain religions or to certain areas of land. Churches, large and small, are unwelcome in suburban residential neighborhoods and in commercial districts alike. Land use regulations frequently discriminate by design, other times by their neutral application, and sometimes by both. Hearings before the Subcommittee on the Constitution in the 105th and 106th Congresses provide a substantial record of evidence indicating a widespread pattern of religious discrimination in land use regulation. While longstanding churches in residential communities do not generally feel threatened by outright removal, attempting to locate a new church in a residential neighborhood is typically an exercise in futility. The Subcommittee received testimony explaining that, unless a church can meet in a single house, the only way to build a church in a residential zone is to find several adjacent lots that are on the market simultaneously, buy them, and tear down the houses-an unfeasible strategy on its face. Commercial districts, therefore, are the only feasible avenue for the location of new churches.
Land use schemes exist permitting churches only in residential areas, which give the appearance that regulators are being generous to churches, when just the opposite is true. Other testimony revealed that some land use regulations deliberately exclude all new churches from an entire city. One attorney specializing in land use litigation testified that it is not uncommon for ordinances to establish standards for houses of worship differing from those applicable to other places of assembly, such as where they are conditional uses or not permitted in any zone. “The result of these zoning patterns is to foreclose or limit new religious groups from moving into a municipality. Established houses of worship are protected and new houses of worship and their worshipers are kept out.”
Another zoning expert testified about a survey of twenty-nine zoning codes from suburban Chicago. In twelve of these codes, there was no place where a church could locate without the grant of a special use permit. In ten codes, churches could locate as of right only in residential neighborhoods, with the attendant problems discussed above. Some codes employed a scheme where churches were authorized to locate in specified sites, but those sites happened to be where existing churches were already located. Therefore, twenty-two of the twenty-nine suburbs effectively denied churches the right to locate except by grant of a special use permit. In other words, it was within the complete discretion of land use regulators whether these individuals had the ability to assemble for worship. “The zoning board did not have to give a specific reason. They can say it is not in the general welfare, or they can say that you are taking property off the tax rolls.” Significantly, nonreligious assemblies need not follow the same rules. This survey revealed that uses such as banquet halls, clubs, community centers, funeral parlors, fraternal organizations, health clubs, gyms, places of amusement, recreation centers, lodges, libraries, museums, municipal buildings, meeting halls, and theaters are often permitted as of right in zones where churches require a special use permit, or permitted on special use permit where churches are wholly excluded. One explanation suggested for this disparate treatment was that local officials may not want non-tax-generating property taking up space where tax-generating property could locate.
Regulators typically have virtually unlimited discretion in granting or denying permits for land use and in other aspects of implementing zoning laws. In fact, the Subcommittee heard testimony of repeated cases in Chicago where the City Council rezoned an individual parcel of property upon application for a special use permit by a church to disqualify the church altogether. In another example, a city issued a building permit to a church, and after the church had commenced construction on the building, the city revoked the permit on the assertion that the city had erred in calculating the number of parking spaces its code would require. This inherent uncertainty for churches attempting to locate is exacerbated by the fact that, as one witness explained, the church must commit to a costly lease or a mortgage to hold the property while it litigates in order to have standing.
The Subcommittee heard testimony regarding a study conducted at Brigham Young University finding that Jews, small Christian denominations, and nondenominational churches are vastly over-represented in reported church zoning cases. The testimony included discussion of a pattern of abuse that exists among land use authorities who deny many religious groups their right to free exercise, often using mere pretexts (such as traffic, safety, or behavioral concerns) to mask the actual goal of prohibiting constitutionally protected religious activity.
Religious groups accounting for only 9% of the population account for 50% of the reported litigation involving location of churches, and 34% of the reported litigation involving accessory uses at existing churches. These small groups plus unaffiliated and nondenominational churches account for 69% of the reported location cases and 51% of the reported accessory use cases. Jews account for only 2% of the population, but 20% of the reported location cases and 17% of the reported accessory use cases.
In Congressional testimony regarding a survey of the efforts of Presbyterian congregations in land use and zoning matters, almost half of the cases examined involved no generally applicable rule and individualized decision making by regulators: 32% of the congregations requiring a land use permit reported that “no clear rules permitted or forbade what we wanted to do, and everything was decided based on the specifics of this particular case (e.g., variance, waiver, special use permit, conditional use permit, amendment to the zoning ordinance, etc.)”; 15% reported that “even though a clear rule seemed to permit or forbid what we wanted to do, the land use authority’s principal decision involved granting exceptions to the rule based on the specifics of this particular case.” Presbyterian congregations needing a land use permit in a span of 5 years, 10%, or roughly 325 to 400 congregations, reported significant conflict with government or neighbors over the land use permit. Significantly, the Brigham Young study discovered only five reported cases involving Presbyterian churches, which highlights the great disparity between reported and actual cases.
The success rate of churches in the relatively few reported cases has, in fact, declined. The statistical and survey-related evidence of religious discrimination presented to the Subcommittee was supported by persuasive anecdotal evidence. One witness described twenty-one cases where cities refused to permit churches to use existing buildings that nonreligious assemblies had previously used. In three of the most egregious cases, churches applied for permits to use a flower shop, a bank, and a theater. In each case, upon application for a use permit by the church, the land use regulator rezoned each small parcel of land into tiny manufacturing zones, rendering the churches non-permitted uses for these “zones.” Other examples included the City of Rockford, Illinois’s refusal to allow the Family Christian Center to use a former school building; this decision was ultimately found to be arbitrary and capricious. Living Word Outreach Full Gospel Church and Ministries in Chicago Heights, Illinois was refused the use of a Masonic Temple for religious assembly. Gethsemane Baptist in Northlake, Illinois was refused the use of a VFW hall as a church hall. Faith Cathedral Church in Chicago was refused the use of a funeral parlor complete with chapel and spacious parking. Vineyard Church in Chicago was refused the use of a former theater for religious services. Evanston Vineyard Church in Evanston, Illinois was not allowed to use an office building with an auditorium for the purpose of religious assembly. Cornerstone Community Church in Chicago Heights was not allowed to use a former department store for religious gatherings.
This brash display of religious discrimination is not endemic to the State of Illinois. In Forest Hills, Tennessee, a Mormon church was denied a permit to use property which had formerly been used as a church. The site was in a cluster of four large churches near a major intersection-one Methodist, one Presbyterian, and two Churches of Christ. When one of the churches closed, the Mormon church bought the property and applied for its use as a church. The city denied the permit on the basis that a temple would not be “in the best interests of and promote the public health, safety, morals, convenience, order, prosperity, and general welfare of the City” and citing its desire to have no more churches in the community. The judge concluded that the city’s decision was “essentially aesthetic, to maintain a ‘suburban estate character’ of the City” and upheld the exclusion.
Because Orthodox Jews may not use motorized vehicles on the Sabbath, they must live within walking distance of a synagogue or shul. It is very easy, therefore, for land use regulators to exclude Orthodox Jews from living in a neighborhood by excluding their place of worship. The City of Los Angeles refused to allow fifty elderly Jews to meet for prayer in a house in the large residential neighborhood of Hancock Park. The City permitted other places of assembly in Hancock Park, including schools, recreational uses, and embassy parties, but refused this use because Hancock Park had no place of worship and the City did not want to create a precedent for one. One witness before the Subcommittee testified to having handled more than thirty such cases in New Jersey. He explained that land use regulators often refuse permits for Orthodox synagogues because they do not have as many parking spaces as the city requires for the number of seats. One vivid example of this tactic was the case of the City of Cheltenham Township, Pennsylvania, which insisted that a synagogue construct the required number of parking spaces despite their being virtually unused. When the synagogue finally agreed to construct the unneeded parking spaces, the city denied the permit anyway, citing the traffic problems that would ensue from cars for that much parking. A related example occurred in Long Island, New York, where a bustling beach community with busy weekend night activity excluded a synagogue on the basis that it would bring traffic on Friday nights ….
The Subcommittee also received testimony of overt religious bigotry in zoning hearings …. In New Jersey, a zoning board invited testimony on the effect that substantial Orthodox Jewish populations had had on other communities. Another witness discussed a case involving the application for a permit by the Family Christian Center, where a neighbor implored, “Let’s keep these damned Pentecostals out of here.” This sentiment was apparently shared by the judge; although the application was for a permit to use an existing school building, the judge said from the bench, “‘We don’t want twelve-story prayer towers in Rockford,” an apparent reference to the twelve-story prayer tower at Oral Roberts University ….
Many cities overtly exclude churches, others do so subtly. The motive is not always easily discernible, but the result is a consistent, widespread pattern of political and governmental resistance to a core feature of religious exercise: the ability to assemble for worship. Several conclusions flow from the land use evidence gathered by the Subcommittee: Some land use regulations are designed to exclude churches, other regulations are in fact implemented to exclude churches. Many zoning schemes around the country make it illegal to start a church anywhere in the community without discretionary permission from a land use authority. In a significant number of communities, it is difficult or impossible to build or occupy space for a new church. While discrimination can be very difficult to prove in any individual case, many of the land use regulations affected by [this legislation] have a significant likelihood of being unconstitutional. Land use regulation is commonly administered through individualized processes not controlled by neutral and generally applicable rules. The standards in individualized land use decisions are often vague, discretionary, and subjective. Conflicts between religious organizations and land use regulators are much more common than reported cases would indicate. Smaller and less mainstream denominations are over-represented in reported land use disputes, but they win their claims at the same rates as larger churches; this overrepresentation in reported cases indicates discriminatory regulation of these faiths and not the merits of their cases or their own propensity to litigate. Land use regulation has a disparate impact on churches and especially on small faiths and nondenominational churches ….
This factual record, complete with statistical and anecdotal evidence, results in the Committee’s finding that many exercises of land use regulation are unconstitutional. Congress therefore exercises its enforcement power pursuant to section 5 of the fourteenth amendment as a means of remedying these abuses of the first amendment right to free exercise.
Programs or activities that receive federal financial assistance
RLUIPA declares that its ban on state and local “land use” regulations (zoning and landmarking) that impose substantial burdens on the exercise of religion only applies if one or more of the following three conditions is satisfied:
(A) the substantial burden is imposed in a program or activity that receives federal financial assistance, even if the burden results from a rule of general applicability; (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
The first condition, pertaining to programs receiving federal financial assistance, is explained in a congressional report accompanying a related provision in the Religious Liberty Protection Act of 1999 (summarized above):
This provision is modeled directly on similar provisions in other civil rights laws, including Title VI of the Civil Rights Act of 1964, which forbids race discrimination in federally assisted programs, and Title IX of the Education Amendments of 1972, which forbids sex discrimination in federally assisted educational programs. Congressional power to attach conditions to federal spending has been consistently upheld [by the courts].
What does this language mean? State and local zoning and landmark laws or practices that impose substantial burdens on the exercise of religion will violate RLUIPA if the offending state or local government “program or activity” is a recipient of federal financial assistance. This important condition was explained in remarks by one member of Congress as follows: “This definition ensures that federal regulation is confined to the program or activity that receives federal aid, and does not extend to everything a government does.”
Burdens on the exercise of religion that “affect commerce”
As noted above, RLUIPA’s ban on state and local “land use” regulations (zoning and landmarking) that impose substantial burdens on the exercise of religion applies if “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several states, or with Indian tribes, even if the burden results from a rule of general applicability.” This condition is explained in a congressional report accompanying a related provision in the Religious Liberty Protection Act of 1999 (summarized above):
[The Act] protects only as much religious exercise as Congress is constitutionally empowered to protect. The provision is … constitutional: to the extent that the commerce power reaches some burdens on religious exercise, the bill will protect the religious exercise; to the extent that it does not reach the burden on religious exercise, the bill will not reach that far …. One objection raised to the use of the commerce clause is motivated by a generalized concern over the legitimacy of invoking the commerce clause of the U.S. Constitution as authority for the legislation. This objection is based on a narrow reading of the commerce clause that has long been rejected by the Supreme Court. A wide range of federal laws have relied upon the commerce clause as constitutional authority. The Federal Fair Labor Standards Act, which set minimum wage and maximum working hours for employees, has been upheld by the Supreme Court as a valid exercise of the federal commerce power. The Court’s contemporary reading of the commerce clause has also been invoked as constitutional authority for numerous federal criminal laws, including those prohibiting the possession of a firearm that has been transported in interstate commerce … and prohibiting extortionate credit transactions or “loan sharking.” Congress has repeatedly used the commerce power as the basis for effective legislation to protect civil rights. [This Act] simply follows that tradition. For example, Title II of the Civil Rights Act of 1964, which prohibits racial discrimination in places of public accommodation, was based on Congress’ power to regulate commerce. That provision has been upheld by the Supreme Court as applied to hotels, restaurants, and public recreational facilities. Similarly, the Age Discrimination in Employment Act, which prohibits discrimination in employment on the basis of age, has been upheld by the Supreme Court as a valid exercise of Congress’ power to regulate commerce.
In summary, state and local zoning and landmark laws or practices that impose substantial burdens on the exercise of religion will violate RLUIPA if “the substantial burden affects, or removal of that substantial burden would affect, commerce.” What kinds of burdens on the exercise of religion would affect commerce? And, the removal of which burdens on the exercise of religion would affect commerce? The congressional report accompanying a related provision in the Religious Liberty Protection Act of 1999 (summarized above) gives two examples of how the imposition or removal of burdens on the exercise of religion might affect commerce:
- Purchasing or providing goods and services. The report notes that in the Camps Newfound case,the Supreme Court concluded that religious camps in Maine were “unquestionably engaged in commerce, not only as a purchaser, but also as a provider of goods and services.”
- “Cumulative effect.” The report also refers to Supreme Court rulings finding that the “cumulative effects of small-scale economic activity can bring an activity within the commerce clause.” For example, the report quotes from the following Supreme Court ruling: “[E]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the states or with foreign nations.” Hodel v. Virginia Surface Mining Association, 452 U.S. 264, 277 (1981).
In summary, Congress has the constitutional authority to regulate commerce, and therefore RLUIPA’s ban on any state or local zoning or landmarking law that imposes a substantial burden on the exercise of religion is valid so long as the imposition or removal of that burden would affect commerce. Further, note that the courts have construed the concept of “commerce” very broadly, so burdens on the exercise of religion associated with many zoning and landmarking laws would meet this requirement.
- Caution. RLUIPA contains the following limitation: “If the only jurisdictional basis for applying a provision of this Act is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce … the provision shall not apply if the government demonstrates that all substantial burdens on, or the removal of all substantial burdens from, similar religious exercise throughout the nation would not lead in the aggregate to a substantial effect on commerce ….”
• Key point. RLUIPA contains the following provision: “A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.”
• Key point. RLUIPA specifies that “this Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”
• Key point. RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” It further provides that “the use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”
Institutionalized Persons
RLUIPA’s protection of the religious liberty of institutionalized persons only extends to cases in which “(1) the substantial burden is imposed in a program or activity that receives federal financial assistance; or (2) the substantial burden affects, or removal of that substantial burden would affect, commerce ….”
Judicial Relief
Persons or religious organizations whose rights under RLUIPA are violated by state or local governmental action are provided with the following remedy: “A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” RLUIPA sets forth the following procedure:
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the free exercise clause or a violation of [this Act], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.
• Key point. RLUIPA provides that a court may award attorneys’ fees to any party who prevails in a lawsuit brought to enforce rights granted under the Act.
Relevance to Churches
What is the practical significance of RLUIPA to local churches? Consider the following examples.
• Example 1. A city ordinance prohibits churches and all other charitable organizations from locating in residential areas without obtaining a “special use permit” from city officials. A church applies for a permit, and a hearing is conducted at which several neighboring homeowners complain that their property valuations will decline if a church is allowed in their neighborhood. The church’s application for a permit is denied. The church sues the city, claiming that its rights under RLUIPA have been violated. Consider the following analysis: (1) This example illustrates the application of Rule 2 (Table 2). RLUIPA specifies that state and local governments cannot impose “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.” (2) RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” It further provides that “the use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” (3) Proving a “compelling governmental interest” is very difficult. The Supreme Court has observed: “A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the first amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The compelling interest standard that we apply once a law fails to meet the Smith requirements … means what it says.” Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). (4) The church can sue the city, and allege a violation of its rights under the first amendment and RLUIPA. If it produces “prima facie evidence” to support a claim alleging a violation of the free exercise clause or a violation of RLUIPA, the city government “shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.” (5) If the church prevails, a court may allow it to recover any attorneys’ fees it paid. (6) The first amendment also guarantees the rights of assembly and association, and a strong case can be made that these rights are violated by the zoning ordinance since the right of some members to engage in religious services (assembly and association) is being restricted. By asserting that these first amendment rights are being violated in addition to the free exercise of religion, the church invokes Rule 5 (Table 2). This is another basis for forcing the city to demonstrate a compelling government interest supporting its decision to deny the church permission to expand its facilities. It is doubtful that the city could meet this requirement. (7) RLUIPA specifies that “this Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”
• Example 2. Same facts as example 1, except that the city ordinance only required religious organizations to apply for a special use permit in order to use property in residential areas for religious purposes. Several other charitable organizations are not required to obtain such a permit. Such a law is not “neutral” toward religion, and so Rule 4 (Table 2) controls. The Supreme Court observed in the Smith case (summarized above) that laws that are not “neutral” towards religion, or that are not of “general applicability,” will violate the first amendment guaranty of religious freedom unless supported by a compelling government interest. Therefore, the church can bring a lawsuit against the city on the basis of the first amendment guaranty of religious liberty. The Supreme Court has ruled that “a law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases …. Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). The church can also assert a claim under RLUIPA.
• Example 3. A city council receives several complaints from downtown business owners concerning homeless shelters that are operated by churches. In response to these complaints, the city council enacts an ordinance banning any church from operating a homeless shelter. This ordinance is neither neutral nor of general applicability and so Rule 4 (Table 2) controls, and the analysis in example 2 would apply. This means that the city will need to demonstrate that the ordinance is supported by a compelling government interest. It is doubtful that it will be able to do so. As the Supreme Court observed in the Hialeah case (discussed above), “a law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.”
• Example 4. Same facts as the previous example, except that the ordinance bans any homeless shelter in the downtown area, whether or not operated by a church. The church sues the city, claiming that its rights under RLUIPA have been violated. This example illustrates the application of Rule 2 (Table 2). RLUIPA specifies that state and local governments cannot impose “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.” RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” The analysis in example 1 would apply to this example as well.
• Example 5. A city council decides that there are “enough” houses of worship in the city, so it refuses to allow any new or existing congregations to construct a house of worship. This ordinance is neither neutral nor of general applicability, and so Rule 4 (Table 2) controls, and the analysis in example 2 would apply. This means that the city will need to demonstrate that the ordinance is supported by a compelling government interest. It is doubtful that it will be able to do so. As the Supreme Court observed in the Hialeah case (discussed above), “a law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” In addition, churches could challenge the city council’s actions by filing a civil lawsuit asserting a violation of their rights under RLUIPA. RLUIPA provides that “no government shall impose or implement a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.”
• Example 6. A city enacts an ordinance establishing a “landmark commission.” The commission is authorized to designate any building as an historic landmark. Any building so designated cannot be modified or demolished without the commission’s approval. A church is designated as an historic landmark. A few years later, the church asks the commission for permission to enlarge its facility in order to accommodate its growing congregation. The commission rejects this request, despite proof that several persons are “turned away” each Sunday because of a lack of room in the current church facility. This example illustrates the application of Rule 2 (Table 2). RLUIPA specifies that state and local governments cannot impose “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.” RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” The analysis in example 1 would apply to this example as well.
• Example 7. A church is located on a major highway. It constructs a billboard on its property that contains religious messages. The city enacts an ordinance prohibiting any billboards along the highway, and a city official orders the church to remove its billboard. This example illustrates the application of Rule 2 (Table 2). RLUIPA specifies that state and local governments cannot impose “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.” RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land.” This definition clearly includes the construction of a sign on church property. In addition, RLUIPA provides that “the use … of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” The analysis in example 1 would apply to this example as well.
• Example 8. A federal agency orders a church to remove a radio tower on its property because the tower does not comply with federal regulations that govern the construction and maintenance of radio towers. Since this is a neutral law of general applicability, Rule 1 (Table 2) applies. This means that the government’s order is presumably valid without the need to prove a “compelling governmental interest.” RLUIPA does not apply, even though the federal regulations pertaining to radio towers could be construed as “land use regulations,” because RLUIPA does not apply to actions by the federal government.
• Example 9. A state law prohibits the issuance of securities by any organization unless the securities are registered with the state securities commissioner. One of the purposes of the law is to prevent fraud. A church would like to sell promissory notes to raise funds for a new sanctuary. When it learns that it cannot do so without registering its securities, it insists that the application of such a law to churches violates the first amendment’s free exercise of religion clause. The church will lose. The securities law is neutral and of general applicability, and so Rule 1 (Table 2) controls. The law is presumably valid without the need to prove a compelling governmental interest. RLUIPA does not apply, since it is limited to (1) state and local land use regulations that burden the exercise of religion, and (2) the exercise of religion by persons institutionalized in state and local facilities.
• Example 10. A number of common church practices may violate copyright law. Does the application of copyright law to churches violate the first amendment’s free exercise of religion clause? No. The copyright law is neutral and of general applicability, and so Rule 1 (Table 2) controls. The law is presumably valid without the need to prove a compelling governmental interest. RLUIPA does not apply, since it is limited to (1) state and local land use regulations that burden the exercise of religion, and (2) the exercise of religion by persons institutionalized in state and local facilities.
• Example 11. A city enacts a civil rights ordinance that bans any employer (including churches) from discriminating on the basis of sexual orientation in any employment decision. A church argues that applying such a law to a church that is opposed on the basis of religious doctrine to hiring homosexuals will violate its constitutional right to freely exercise its religion. Under the Supreme Court’s ruling in the Smith case, it is doubtful that the church would prevail. The civil rights law in question clearly is neutral and of general applicability, and so Rule 1 (Table 2) controls. The law is presumably valid without the need to prove a compelling governmental interest. RLUIPA does not apply, since it is limited to (1) state and local land use regulations that burden the exercise of religion, and (2) the exercise of religion by persons institutionalized in state and local facilities. Several courts have ruled that the clergy-church relationship is unique and is beyond governmental regulation. Accordingly, it is doubtful that such an ordinance could be applied to clergy.
• Example 12. A state legislature enacts a law that requires teachers at all public and private elementary and secondary schools, including those operated by churches, to be state-certified. A church challenges this law on the basis of the first amendment guaranty of the free exercise of religion. The church probably will lose. The law in question clearly is neutral and of general applicability, and so Rule 1 (Table 2) controls. The law is presumably valid without the need to prove a compelling governmental interest. RLUIPA does not apply, since it is limited to (1) state and local land use regulations that burden the exercise of religion, and (2) the exercise of religion by persons institutionalized in state and local facilities.
• Example 13. A state legislature enacts a law imposing a sales tax on purchases made by most organizations, including churches. A church challenges this law on the ground that it violates the first amendment guaranty of the free exercise of religion. It is doubtful that the church will prevail. The law in question clearly is neutral and of general applicability, and so Rule 1 (Table 2) controls. The law is presumably valid without the need to prove a compelling governmental interest. RLUIPA does not apply, since it is limited to (1) state and local land use regulations that burden the exercise of religion, and (2) the exercise of religion by persons institutionalized in state and local facilities.
• Example 14. A public school adopts a policy prohibiting any outside group to rent or use its facilities for any purpose. A church asks for permission to rent the school gymnasium for a special religious service. The school denies this request. The church claims that its first amendment right to the free exercise of religion has been violated by the school’s policy. Since the policy is a neutral law of general applicability, Rule 1 (Table 2) controls. The law is presumably valid without the need to prove a compelling governmental interest. RLUIPA does not apply, since it is limited to (1) state and local land use regulations that burden the exercise of religion, and (2) the exercise of religion by persons institutionalized in state and local facilities. However, if the church asserts that its first amendment rights to free speech, assembly, and association are violated by the school policy (in addition to its right to freely exercise its religion), then Rule 5 (Table 2) is invoked. This will force the school to demonstrate a compelling government interest supporting its policy. Other decisions by the Supreme Court suggest that the school will be able to demonstrate a compelling government interest-avoiding the “establishment” of religion (by singling out religious groups for special or favored treatment).
Table 1
The First Amendment Guaranty of Religious Freedom – a review of recent developments
| date | development | explanation |
| pre – 1990 | Government (local, state, federal) cannot impose substantial burdens on the exercise of sincerely-held religious beliefs unless its actions are justified by a “compelling state interest” that could not be served through “less restrictive means.” | |
| 1990 | Employment Division v. Smith, 494 U.S. 872 (1990) | Supreme Court rules that:
|
| 1993 | Religious Freedom Restoration Act (RFRA) | Congress reinstates the “compelling government interest” test in all cases of government practices that burden the exercise of religion. RFRA provides: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability … [unless] the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” |
| 1997 | City of Boerne v. Flores, 521 U.S. 507 (1997) | Supreme Court rules that RFRA is unconstitutional as applied to infringement of religious freedom by state and local governments |
| 1999 | Religious Liberty Protection Act | Adopted by a vote of 306-118 in the House, but not considered by the Senate. This Act was another attempt to reinstate the “compelling government interest” requirement to all government practices that impose substantial burdens on the exercise of religion. |
| 2000 | Religious Land Use and Institutionalized Persons Act (RLUIPA) | Passed by unanimous consent of both houses of Congress, and signed into law by President Clinton on September 22, 2000. This law is a modified version of the Religious Liberty Protection Act. RLUIPA protects the exercise of religion in two situations: (1) state or local governments seek to impose or implement a zoning or landmark law in a manner that imposes a substantial burden on religious exercise, and (2) state or local governments seek to impose a substantial burden on the religious exercise of persons residing or confined to certain institutions. In either case, a state or local law that imposes a substantial burden on the exercise of religion is invalid unless the government can prove that such a burden is the least restrictive means of furthering a compelling governmental interest. |
Table 2
The First Amendment Guaranty of Religious Freedom:
Explained in 7 Rules
| rule | explanation | source |
| 1 | It will be difficult for religious organizations to challenge neutral laws of general applicability that burden the exercise of religion, because such laws are presumably valid whether or not they are supported by a compelling government interest. | Employment Division v. Smith, 494 U.S. 872 (1990). |
| 2 | Any state or local law that substantially burdens the exercise of religion in the contexts of “land use regulation” and institutionalized persons must be supported by a “compelling governmental interest” even if it is a “neutral law of general application.” | Religious Land Use and Institutionalized Persons Act of 2000 |
| 3 | Any federal law that substantially burdens the exercise of religion must be supported by a “compelling governmental interest” even if it is a “neutral law of general application.” | Religious Freedom Restoration Act |
| 4 | Laws that are not “neutral” towards religion, or that are not of “general applicability,” will violate the first amendment guaranty of religious freedom unless supported by a compelling government interest. | Employment Division v. Smith, 494 U.S. 872 (1990). |
| 5 | Neutral laws of general applicability that infringe upon a second constitutional right (in addition to religious freedom) will be unconstitutional unless supported by a compelling government interest. | Employment Division v. Smith, 494 U.S. 872 (1990). |
| 6 | The government may not refuse to extend a system of exemptions to cases of religious hardship without compelling reason. | Employment Division v. Smith, 494 U.S. 872 (1990). |
| 7 | Every state constitution has some form of protection for religious freedom. In some cases, these protections are more comprehensive than under the federal Constitution. State constitutional protections in some cases may provide religious organizations with additional protections. | state constitutions |
© Copyright 2001 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m82 m47 m21 c0201
