• Key point. The federal Religious Land Use and Institutionalized Persons Act prohibits state and local governments from imposing a land use regulation in a manner that imposes a substantial burden on the exercise of religion unless the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
* A federal appeals court ruled that a city did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying a church’s request for a permit to operate a day care program in a residential neighborhood. The court also rejected the church’s argument that the city’s denial of the permit violated the First Amendment guaranty of religious freedom.
In 1990, the United States Supreme Court ruled that ‘neutral rules’ of ‘general applicability’ normally do not violate the First Amendment even if they incidentally burden a particular religious practice or belief. Employment Division v. Smith, 494 U.S. 872 (1990). The appeals court applied this principle in this case. Since the city’s zoning ordinance was a neutral law of general applicability, it was constitutional. It concluded: ‘In sum, there was no evidence that the city ever interpreted the exempt categories to include certain daycare operations and not others, or that the ordinance was enacted based on religious animus. The fact that the city consistently concluded it was without discretion to grant variances for daycare facilities in residential zones defeats the argument that it deployed a system of subjective considerations running afoul of the [First Amendment]. The First Amendment simply does not entitle the church to special treatment so that it may operate a daycare exactly where it pleases while no one else can do the same.’
The Religious Land Use and Institutionalized Persons Act (RLUIPA) states that ‘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.’ The trial court concluded that RLUIPA was not violated by the city’s denial of a permit to the church for operation of a child care program, since this restriction did not impose a ‘substantial burden on the religious exercise’ of the church or its members. The church insisted on appeal that this decision had to be reversed because the trial judge gave the jury inaccurate instructions on the application of RLUIPA. The appeals court conceded that the instructions were flawed, but that this amounted to ‘harmless error’ that did not alter the fact that a RLUIPA violation did not occur. Grace United Methodist Church v. City of Cheyenne, 427 F.3d 775 (10th Cir. 2005).
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