Title: RLUIPA Is A Bridge Too Far: Inconvenience Is Not Discrimination
Abstract: Introduction I. The Pre-Existing Constitutional Protections for Landowners in the Land Use Process, and the Movement Under RLUIPA Toward Making Cost and Convenience Sufficient to Avoid Local Land Use Laws A. Due Process for Ali Land Developers: Inconvenience and Cost Are Insufficient to Overcome Land Use Law.. B. Free Exercise for Religious Landowners: There Is a Split in Authority Regarding Whether Inconvenience and Expense are Sufficient to Prove a Substantial Burden on Religious Exercise 1. Under the First Amendment, Inconvenience and Expense Have Been Insufficient to Prove a Substantial Burden on Religious Exercise in Land Use Cases 2. After RLUIPA, More Courts Have Held That Inconvenience and Expense Are Sufficient Proof of Substantial Burden in Land Use Cases II. Permitting Religious Landowners to Avoid Local Land Use Laws Because They Cause Expense or Inconvenience Violates Federalism and the Establishment Clause A. The Criteria of Inconvenience and Cost to Establish a Substantial Burden in the Land Use Context Violate Federalism B. The Criteria of Cost and Inconvenience in the Land Use Context Violate the Establishment Clause Conclusion [N]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid ali religions, or prefer one religion over another. (1) INTRODUCTION The Supreme Court and lower federal courts following Supreme Court doctrine have held consistently that local land use priorities are most appropriately decided by local governments. (2) Local land use regulation is a crucial element of the federalism that is a fundamental basis of the United States' constitutional structure. (3) After all, if there is anything that is truly local, it is land use. In addition, the Supreme Court repeatedly has ruled that financial preferences for religious organizations violate the Establishment Clause. (4) Neither of these two lines of cases is in serious question, yet, when Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, (5) it managed to cross both constitutional boundary lines without taking either into account. Congress ran roughshod over the Supreme Court's established doctrine on local land use and the Establishment Clause when it enacted RLUIPA, which applies the heavy hand of the federal government to manufacture new and special privileges for religious landowners to override local land use priorities and interests. It is a free exercise statute that too often strong-arms local governments to prioritize a particular religious applicant's private vision over all other interests in the community. RLUIPA purportedly was passed to redress religious discrimination in the land use process. The Conference Report stated: Churches in general, and new, small or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways. (6) Regardless of its proponents' outlandish claims, this is a statement with a pro-religion bias and few facts to support it. In a previous article, I discredited the notion that there was meaningful evidence of discrimination against churches in the land use process before Congress when it decided to intermeddle in ordinary local land use disputes involving religious landowners with RLUIPA. (7) There was no alleged evidence of discrimination offered by anyone other than a self-interested religious organization. …
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
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Cited By Count: 1
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