Title: RLUIPA: Necessary, Modest, and Under-Enforced
Abstract: Introduction I. The Need for RLUIPA A. Religious or Racial Hostility B. NIMBY Resistance C. Taxes and Commerce D. Collective Action II. Moderate Enforcement of RLUIPA A. No Avoiding the Land-Use Process B. No Free Pass for Commercial Activities C. No Substantial Burden When There Are Ready Alternatives III. Under-Enforcement of RLUIPA A. Judicial Reluctance B. Substantial Burden C. Equal Terms D. Congregation Etz Chaim v. City of Los Angeles Conclusion INTRODUCTION Churches are often unpopular in the zoning context. (1) They are unpopular in residential zones because they allegedly generate too much traffic, noise, and congestion. They are unpopular in commercial zones because they allegedly generate too little traffic and not enough synergy with surrounding businesses. And they are unpopular with city officials because they are tax exempt. Sometimes they are unpopular simply because their religion is unpopular--as with Muslims after 9/11 and sometimes with other minority faiths. But building churches is also a core First Amendment activity. In every major religion, believers gather together for shared rituals and communal expressions of faith. They cannot do so without a physical space. Thus, a restriction on the ability to build a church is a restriction on the free exercise of religion. The zoning process exists to implement the goals of land-use regulation; the process, and the activists and decision makers within that process, often have little concern for the countervailing interests protected by the First Amendment. In most cases, the zoning process is highly individualized and discretionary. In most jurisdictions, local officials have broad discretion to deny permits and exclude churches based on vague standards--such as whether a use is consistent with the character of the neighborhood, or consistent with the health, safety, and welfare of the community. As a result, core First Amendment rights are placed at the mercy of a standardless licensing system that makes it easy for local officials to disguise regulation of churches that is arbitrary, discriminatory, or both. To remedy this problem, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). In nine hearings over the course of three years, Congress amassed substantial evidence--both anecdotal and statistical--of widespread resistance to churches in the zoning context, including discrimination against smaller and less popular faiths. (2) These hearings concerned a broader bill, the proposed Religious Liberty Protection Act (RLPA), that never passed. (3) RLUIPA was carved out of that bill, passed with overwhelming, bipartisan support, (4) and was signed into law by President Clinton on September 22, 2000. (5) The land-use section of RLUIPA has four substantive provisions. One subsection provides for a form of religious exemption: if a land-use regulation substantially burdens the free exercise of religion, the government must show that that burden serves a compelling interest by the least restrictive means. (6) Two subsections directly address discrimination: a jurisdiction cannot treat a religious assembly or institution on less than equal terms with a secular assembly or institution, (7) and it cannot discriminate on the basis of religion or religious denomination. (8) And one subsection directly addresses exclusion: land-use regulation may not totally exclude religious assemblies (9) or unreasonably limit religious assemblies, institutions, or structures within a jurisdiction. (10) The substantial-burden and equal-terms provisions have been the most important and generated the most litigation. A substantial-burden claim, but not a claim under any of the other sections, requires an additional showing to demonstrate congressional authority to regulate: either an effect on commerce (11) or that the land-use regulator had authority to make an individualized assessment of the proposed use of the property. …
Publication Year: 2016
Publication Date: 2016-02-10
Language: en
Type: article
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Cited By Count: 1
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