Pastor, Church & Law

§ 7.06.04

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Key point 7-06.04. 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.

The federal Religious Land Use and Institutionalized Persons Act ("RLUIPA" or "the Act") was enacted by Congress in 2000. The Act, which had been enacted by unanimous consent of both the Senate and House of Representatives, addressed two areas where religious freedom had been threatened: (1) land use regulation, and (2) persons in prisons, mental hospitals, nursing homes and similar institutions.

The Act provides 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 section will review the background the Act, explain each of its major provisions, and then provide several practical examples that will illustrate the significance of the Act to religious congregations.

1. 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."[145] Sherbert v. Verner, 374 U.S. 398 (1963). In a 1990 ruling (the "Smith case"), the Supreme Court revised its understanding of the "free exercise" clause.[146] 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 must a state demonstrate that a compelling state interest supports a law that prohibits or restricts religious practices. This is unfortunate since it is now 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.[147] 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. (emphasis added)

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 legislation is analyzed below.

2. THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000

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).

substantial burden

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.[148] 42 U.S.C.A. § 2000cc. Some pre-RLUIPA cases concluded that a city's refusal to allow a religious organization to construct a new facility did not constitute a substantial burden of the exercise of religion. See, e.g., Messiah Baptist Church v. Jefferson, 859 F.2d 820 (10th Cir. 1988); Lakewood, Ohio, Congregation of Jehovah's Witnesses v. Lakewood, 699 F.2d 303 (6th Cir. 1983); United States v. Airmont, 839 F.Supp. 1054 (S.D.N.Y. 1993); Love v. Evanston, 671 F.Supp. 508 (N.D. Ill. 1987).

A substantial burden to religious exercise involves more than inconvenience; it is "akin to significant pressure which directly coerces a religious adherent to conform his or her behavior accordingly."[149] Midrash Sephardi v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004). The court noted that a substantial burden on religious exercise in violation of RLUIPA can result from a zoning ordinance that "exerts pressure tending to force religious adherents to forego religious precepts, or mandates religious conduct."

RLUIPA clarifies the application of the substantial burden limitation with the following three provisions:

(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.[150] Id. An "individualized assessment" occurs when city officials may use their authority to individually evaluate and either approve or disapprove of churches in potentially discriminatory ways. Town of Foxfield v. Archdiocese, 148 P.3d 339 (Or. App. 2006). One court observed that RLUIPA codifies numerous precedents holding that systems of individualized assessments, as opposed to generally applicable laws, are subject to the compelling government interest requirement. Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002).

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.[151] A religious organization that challenges a land-use regulation under the "equal terms" provision of RLUIPA does not need to present evidence that the regulation imposes a substantial burden on its religious exercise. Rather, "a plaintiff must show (1) it is a religious assembly or institution, (2) subject to a land use regulation, which regulation (3) treats the religious assembly on less than equal terms with (4) a nonreligious assembly or institution (5) that causes no lesser harm to the interests the regulation seeks to advance. Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3rd Cir. 2007). See also Primera Iglesia Bautista Hispana v. Broward County,ˆ 450 F.3d 1295 (11th Cir. 2006) (applied a four factor test that deleted the fifth factor in the test).

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.[152] Id.

The third of these three protections is probably the most important for churches since it 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.

Some courts have recognized that while "an unreasonable limitation on religious uses within a jurisdiction undoubtedly would impose a substantial burden on religious institutions, to interpret the substantial burden provision as being coextensive with the [discrimination and exclusion] provision would be to render one of the provisions superfluous."[153] Murphy v. Zoning Commission, 402 F.3d 342 (2nd Cir. 2005). See also Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612 (7th Cir. 2007), in which a federal appeals court observed: "The equal-terms section is violated whenever religious land uses are treated worse than comparable nonreligious ones, whether or not the discrimination imposes a substantial burden on the religious uses. If proof of substantial burden were an ingredient of the equal-terms provision, the provisions would be identical, which could not have been Congress's intent." See also Hollywood Community Synagogue v. City of Hollywood, 430 F.Supp.2d 1296 (S.D. Fla. 2006).

A federal appeals court ruled that the equal terms provision of RLUIPA may be violated by a land use regulation in at least three ways: "(1) by facially differentiating between religious and nonreligious assemblies or institutions; (2) by 'gerrymandering' to place a burden solely on religious, as opposed to nonreligious, assemblies or institutions, despite being neutral on its face; or (3) or through selective enforcement against religious, as opposed to nonreligious, assemblies or institutions of a truly neutral regulation."[154] Primera Iglesia Bautista Hispana v. Broward County,ˆ 450 F.3d 1295 (11th Cir. 2006)

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 a number of precautions.

As noted previously, RLUIPA addresses two areas where religious freedom has been threatened: (1) Section 2 specifies that state and local governments cannot subject religious organizations to a land use regulation that imposes substantial burdens on the free exercise of religion unless the law is supported by a compelling governmental interest; (2) Section 3 seeks to protect the religious practices of institutionalized persons.

In 2005, the United States Supreme Court affirmed the constitutionality of section 3 (pertaining to institutionalized persons).[155] Cutter v. Wilkinson, 125 S.Ct. 2113 (2005). This case is important because it suggests (although does not specifically hold) that section 2 of RLUIPA (pertaining to land use regulations) does not violate the First Amendment's nonestablishment of religion clause. Several previous state and federal cases have suggested that section 2 of RLUIPA is an impermissible establishment of religion. This conclusion is now far less likely.

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."

3. 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.

4. ILLUSTRATIVE CASES

Summarized below are several leading cases illustrating the application of RLUIPA to religious organizations.

Cases in which RLUIPA was violated

• A federal appeals court ruled that a city violated RLUIPA in denying a private religious school permission to expand its facility, since the denial imposed a substantial burden on religious exercise. The court concluded: "A burden need not be found insuperable to be held substantial. When the school has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the school's application might be indicative of a substantial burden." [156] Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2nd Cir. 2007).
• A federal appeals court ruled that a city's zoning ordinance that permitted a range of different uses in the central commercial district (including a restaurant, variety store, college, assembly hall, bowling alley, movie theater, municipal building, new automobile and boat showroom), but barred religious organizations from the same district, violated RLUIPA since it treated religious organizations on less than equal terms with non-religious institutions. [157] Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3rd Cir. 2007).
• A church submitted an application to rezone its property from residential to institutional so that it could build a church facility. To allay the city's concerns that the property could be used for other purposes if the church failed to raise sufficient construction funds, the church coupled the rezoning proposal with a zoning device that would limit the use of the property to church related uses. The city's planning commission denied the application. A federal appeals court concluded that "having either to sell the [property] and find a suitable alternative parcel or be subjected to unreasonable delay by having to restart the permit process to satisfy the planning commission about a contingency for which the church has already provided complete satisfaction constituted a substantial burden under RLUIPA." In reaching this conclusion, the court suggested that the city had been "playing a delaying game"; and that its concerns were "legal chimeras." Under these circumstances, the church was not required to prove that it had been entirely excluded from the jurisdiction to establish a substantial burden." [158] Sts. Constantine & Helen Greek Orthodox Church v. New Berlin, 396 F.3d 895 (7th Cir. 2005). Another court interpreted this case to "stand for the proposition that, when the government has acted arbitrarily and capriciously in prohibiting a religious land use, no further demonstration of a substantial burden is required." Cambodian Buddhist Society v. Planning and Zoning Commission, 941 A.2d 868 (Conn. 2008).
• A federal appeals court ruled that a county board of supervisors' denial of a religious organization's application for a permit to construct a temple on land zoned for agricultural use violated RLUIPA since it imposed a substantial burden on the organization's religious exercise. The court noted that the board gave such broad reasons for denying the application (increased traffic and noise) that very little property was left in the community upon which the temple could be built. [159] Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978 (9tn Cir. 2006).
• A federal appeals court ruled that when the government inconsistently applied development concerns, rejected adequate mitigating conditions and significantly reduced the area in which a religious facility could be built, a substantial burden had been established. [160] Guru Nanak Sikh Society v. Sutter, 456 F.3d 978 (9th Cir. 2006).
• A federal appeals court ruled that a city violated RLUIPA's equal terms provision by forbidding a rabbi to conduct religious services in his residence without a permit while allowing other non-religious uses in the same district, including cub scouts and family gatherings. [161] Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005). Accord Midrash Sephardi v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).
• A federal appeals court ruled that a city violated RLUIPA and the First Amendment religion clauses by conditioning a church's right to build a new sanctuary on compliance with a cumbersome environmental review process.[162] Fortress Bible Church v. Feiner, 694 F.3d 208 (2nd Cir. 2012).

Cases in which RLUIPA was not violated

• A federal appeals court ruled that a city's denial of a church's application for a special use permit to build a new facility in excess of 25,000 square feet on its property did not violate RLUIPA since it did not amount to a substantial burden on the church's religious exercise. The court stressed that the city's denial did not require the church to violate or forego its religious beliefs or choose between those beliefs and a benefit to which it was entitled. [163] Living Water Church of God v. Charter Township, 258 Fed. Appx. 729 (6th Cir. 2007).
• A federal appeals court ruled that a city's plan to acquire a church cemetery using the power of eminent domain in order to facilitate expansion of an airport was not a land use regulation subject to RLUIPA.[164] St. John's United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007). Contra Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002). The court observed: "Given the importance of eminent domain as a governmental power affecting land use, we think that if Congress had wanted to include eminent domain within RLUIPA, it would have said something. Indeed, before federal law starts interfering with the fundamental state power of eminent domain, it is likely that we would need a clear statement from Congress."
• A federal appeals court ruled that a city's zoning ordinance did not impose a substantial burden on local religious institutions because it "did not render impracticable the use of real property … for religious exercise, much less discourage churches from locating or attempting to locate there." [165] Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752 (7th Cir. 2003).
• A federal appeals court ruled that a city's zoning ordinance that required churches to obtain a special use permit to construct a sanctuary in a residential district did not violate RLUIPA since the requirement of a permit did not amount to a total exclusion of churches. The court noted that the zoning ordinance set forth the factors to be considered by the city in evaluating an application for a special use permit, and the permit requirement was neutral since it applied to schools, utilities, and other secular institutions, and was justified by legitimate, non-discriminatory municipal planning goals of limiting development, traffic, and noise, and preserving open space. [166] Vision Church v. Village of Long Grove, 468 F.3d 975 (7th Cir. 2006). Accord Town of Mount Pleasant v. Legion of Christ, 800 N.Y.S.2d 34 (2005).
  The Connecticut Supreme Court ruled that RLUIPA's substantial burden provision applies in a zoning case only when the government has the discretion to apply a land use regulation in a manner that discriminates against religious institutions in general or against a particular religion or denomination.[167] Cambodian Buddhist Society v. Planning and Zoning Commission, 941 A.2d 868 (Conn. 2008). The court concluded: "Because RLUIPA's substantial burden provision applies only when the government has made an 'individualized [assessment] of the proposed [use]' we conclude that the provision applies only when the government has the discretion to apply a land use regulation in a manner that discriminates against religious institutions in general or against a particular religion or denomination."

5. MAINTAINING A RLUIPA CLAIM

How should a church proceed when its rights under RLUIPA are possibly violated? 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) 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."[168] 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 may be able to force 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 the city will be required to prove a compelling government interest in support of the ordinance. 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."[169] Id. 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 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. 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 and 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. 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 is 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. 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. 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.