I. What is RLUIPA?
RLUIPA stands for the Religious Land Use and Institutionalized Persons Act. 42 U.S.C. 2000cc. RLUIPA is a law designed to protect religious assemblies and institutions from zoning and historic landmark laws that substantially interfere with the assemblies' and institutions' religious exercise. It also protects individuals and religious institutions, including churches, mosques, and synagogues, in their use of land and buildings for religious purposes. Questions & Answers About the Federal Religious Land Use Law of 2000/prepared by Sidley Austin Brown & Wood's Religious Institutions Group and the RLUIPA Litigation Task Force (2001) at 1-2, (available at http://www.rluipa.org).
RLUIPA was passed unanimously by Congress on July 27, 2000 and signed into law by President Clinton on September 22, 2000. The pertinent land use provisions of RLUIPA, are as follows:
(a) Substantial Burdens -
(1) General Rule - 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 demonstrated that imposition of the burden on that person, assembly, or institution
(A) is in furtherance of a governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of Application - This subsection applies in any case in which
(A) the substantial burden is imposed in a program or activity that received 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.
(b) Discrimination and Exclusion
(1) Equal Terms 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.
(2) Nondiscrimination 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.
(3) Exclusions and Limits 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.
42 U.S.C. 2000cc. Thus, within the jurisdictional framework of section (a)(2), RLUIPA prohibits two things: 1) any land use requirement that substantially burdens free exercise, even if the requirement is generally applicable; and 2) discrimination against religious assemblies and institutions.
In addition to protecting the land use rights of religious organizations, RLUIPA also protects the religious rights of individuals institutionalized in prisons. The following provision outlines the free exercise protection which RLUIPA affords prisoners:
(a) General Rule No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997), 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.
(b) Scope of Application This subsection applies in any case in which
(1) the substantial burden is imposed in a program or activity that received Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.
42 U.S.C. 2000cc-1.
II. The History of RLUIPA
RLUIPA is not the first legislation of its kind. A statute known as the Religious Freedom Restoration Act (RFRA), achieved a similar legislative purpose until the United States Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1994), held the statute unconstitutional as it applied to the states. Congress enacted RLUIPA in response to the City of Boerne holding. RLUIPA at http://rluipa.org/generaldocs/background.html. A brief discussion of RFRA is useful to provide a basis for comparison as well as some indication of the constitutional hurdles that RLUIPA will likely face when challenged.
Congress passed RFRA in 1993 in response to the Supreme Court decision in Employment Division v. Smith, 494 U.S. 872 (1990). Until Smith, federal free exercise claims were reviewed under the strict scrutiny test announced by the Supreme Court in Sherbert v. Verner, 374 U.S. 398 (1963). Under Sherbert, government action which substantially affected the practice of religion was constitutional only if that action was the least restrictive means of serving a compelling state interest. Id. at 406. In Smith, however, the Court held that a free exercise challenge cannot be sustained if the burden on free exercise arises from a neutral law of general applicability. In Smith, the plaintiffs challenged a state law criminalizing the use of peyote as a violation of their free exercise rights since they used the drug as part of a Native American religious sacramental ceremony. Id. at 872. Under Smith, such a neutral law of general applicability does not violate the First Amendment and need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religion: "[I]f prohibiting the exercise of religion...is not the object of the [ordinance] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended." Id. at 878.
Thus, RFRA was essentially Congress' attempt to restore the standard of strict scrutiny to free exercise challenges even in cases involving neutral and generally applicable state laws in the wake of Smith. As originally enacted, RFRA specifically prohibited the federal or any state government from substantially burdening religious practice, even by neutral, generally applicable laws, unless the government could show that the burden was the least restrictive means of furthering a compelling state interest. See Jay Alan Sekulow & John Tuskey, City of Boerne v. Flores: The Justices Know Best, 2 NEXUS J. OP. 51 (Fall 1997). In 1994, the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1994), held RFRA unconstitutional as it applied to the states, concluding that it exceeded Congress's enforcement powers under 5 of the Fourteenth Amendment. Id. at 508.
In determining that RFRA was unconstitutional, the Court focused upon the statute's legislative history and its failure to detail significant episodes of religious bigotry occurring in the past 40 years. Id. at 530. The Court also focused upon the fact that RFRA could not be considered remedial or preventive legislation. Id. at 532. The Court indicated that preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. Id. However, the Court determined that RFRA did not constitute such a preventive measure. The Court explained that "broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." Id. at 536. Therefore, RFRA and its compelling interest test currently prohibits only the federal government from substantially burdening religious practice.
After the Supreme Court held RFRA unconstitutional as it applied to the states, Congress attempted to restore what the courts took away through additional pieces of legislation. Initially, Congress tried to achieve this goal by enacting the Religious Liberty Protection Act (RLPA) in 1998 and again in 1999. RLPA would have "prohibited a State from placing a substantial burden upon a person's religious exercise under the following conditions: (1) in a State-operated program or activity that receives Federal financial assistance; or (2) in or affecting international or interstate commerce." THOMAS, Legislative Information on the Internet, Bill Summary & Status on H.R. 4019 & S. 2148 (Aug. 29, 2001) available at http://thomas.loc.gov/cgi-bin/bdquery. However, RLPA failed due to great disagreement and debate between conservatives over the use of Commerce Clause authority (1) to protect religious liberty. Congress continued to introduce legislation to protect religious liberty and, in 2000, passed RLUIPA.
III. Is RLUIPA Constitutional?
Since RLUIPA's constitutionality has not yet been considered by the U.S. Supreme Court, it is not possible to say affirmatively whether RLUIPA will be upheld as constitutional. However, a few sources are helpful in analyzing the constitutional issues involved. First, the actual language of the statute and its legislative history can be compared with RFRA and evaluated in light of the Supreme Court's opinion in City of Boerne v. Flores. Second, pending lower court cases brought under RLUIPA offer some indication of how RLUIPA might fare in the face of constitutional challenge. While only a handful of cases involving RLUIPA have been decided, two courts have addressed the crucial questions of what constitutes a substantial burden and whether Congress acted within its authority in enacting RLUIPA. (2)
A. Congressional Authority
The drafters of RLUIPA took care to observe the lessons learned from RFRA. Thus, there are some similarities and some important differences between the language of RLUIPA and that of RFRA. Both RFRA and RLUIPA contain language that bring within their reach laws of general applicability; however, RLUIPA contains significant limits intended to avoid some of the fatal flaws of its predecessor.
Specifically, RLUIPA prohibits a government from imposing a substantial burden on a person's religious exercise, but that prohibition is limited to cases in which (A) the burden is imposed in a program/activity that receives federal financial assistance; (B) the burden affects interstate commerce; or (C) the burden is imposed by a land use regulation under which a government makes or can make individualized assessments of the proposed land use. 42 U.S.C.S. 2000cc(a)(2). As such, RLUIPA is based upon three different sources of congressional power. First, RLUIPA relies upon the federal Spending Clause power to require that all recipients of federal money consent to abide by the Act's "substantial burden" provisions in regarding to land use regulation in programs and activities supported by federal aid. Second, RLUIPA draws upon the federal Commerce Clause power to regulate interstate commerce. Third, RLUIPA is supported by Congress' power under 5 of the Fourteenth Amendment to pass civil rights enforcement legislation. Questions & Answers About the Federal Religious Land Use Law of 2000/prepared by Sidley Austin Brown & Wood's Religious Institutions Group and the RLUIPA Litigation Task Force (2001) at 11-12, (available at http://www.rluipa.org). These limitations were included specifically to bring RLUIPA within Congress' constitutional authority and thereby avoid the pitfalls of Smith and City of Boerne.
It is further significant that beyond the substantial burden provision, RLUIPA only prohibits discrimination. 42 U.S.C.S. 2000cc(b). RLUIPA's drafters were conscious of the Supreme Court's reluctance to uphold across the board religious exemptions as evidenced in both Smith and City of Boerne. Although the stated purpose of RFRA was to prevent and remedy constitutional violations, it was susceptible of a much broader application.
According to its legislative history, RLUIPA was enacted to remedy widespread discrimination against religious organizations in land use regulations. Questions & Answers About the Federal Religious Land Use Law of 2000/prepared by Sidley Austin Brown & Wood's Religious Institutions Group and the RLUIPA Litigation Task Force (2001) at 11, (available at http://www.rluipa.org). At numerous committee hearings, prominent legal scholars, religious liberty lawyers, and civil rights and religious leaders testified about widespread discrimination in land use regulation and about how Congress could constitutionally remedy such discrimination. Id. In all, Congress held six House committee hearings and three Senate committee hearings to discuss religious land use concerns. Id. These committee hearings ultimately outline significant episodes of religious discrimination against religious organizations in land use regulations and thereby give RLUIPA the remedial and preventive underpinnings that were lacking in RFRA.
In Mayweathers et al. v. Terhune et al., No. Civ. S-96-1582 (E.D. Cal. 2001), a federal court issued a detailed opinion on RLUIPA's constitutionality and specifically addressed the issue of congressional authority. Although Mayweathers deals with the prisoner rights provision of RLUIPA, the court's analysis of the constitutional questions extends to the land use provisions as well.
The plaintiffs in Mayweathers were two Muslims who are federal prisoners housed in a California State Prison. They sought relief under RLUIPA for alleged violations of the right to the free exercise of their religion. Id. at 1. (One plaintiff requested the opportunity to have religious services held on Fridays, and the other wanted to grow out his beard.) The defendants argued that Congress exceeded its authority under the Spending, Separation of Powers, and Commerce Clauses. Defendants also argued that RLUIPA violated the Establishment Clause of the First Amendment as well as the Tenth, Eleventh, and Fourteenth Amendments to the Constitution. Id. at 11. The court addressed and summarily rejected each of the claims, ruling that RLUIPA was constitutional and that it was properly enacted by Congress.
Discussing the Commerce Clause aspect of RLUIPA, the court explained that when enacting 3(b) of RLUIPA, "Congress provided that it be applied in those instances when the substantial burden affects or removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.' The jurisdictional element in 3(b)(2) thereby ensures that Congress' Commerce Clause power is only exercised in those cases where interstate commerce is directly affected by the prison regulation at issue....Thus, by definition, 3 of RLUIPA does not exceed the boundaries of the Commerce Clause." Id. at 16 (quoting United States v. Lopez, 514 U.S. 549 (1995). Given that RLUIPA's language in 3, the prisoner's rights provision, and 2, the land-use provision, is very similar, it can be inferred from this opinion that if this particular court were presented with a land use violation, it would uphold RLUIPA's land use provision as being constitutional on the same basis.
In the court's analysis of the Establishment Clause violation, it explained that RLUIPA:
...[does not] improperly advance or inhibit religion. While it is true that RLUIPA protects religious freedom, this is not fatal....Section 3 of RLUIPA does not itself promote or subsidize a religious belief or message. Rather, it frees religious groups and individuals to practice as they otherwise would in the absence of certain state-imposed regulations. Finally, RLUIPA does not promote or subsidize a religious belief or message, and it does not foster an excessive entanglement with religion. To the contrary, the Act seeks to protect religious liberty from intrusion by the States."
Mayweathers et al. v. Terhune et al., No. Civ. S-96-1582 at 13-14 (E.D. CA 2001).
The court's reasoning in Mayweathers upholding RLUIPA's constitutionality in a prisoner's rights case also applies to land use cases under RLUIPA. There is no reasonable basis for distinguishing between the land use and prisoner rights provisions with regard to RLUIPA's constitutionality.
B. The Substantial Burden Inquiry
The Court in Smith refused to apply the Sherbert compelling interest test to a generally applicable law, 494 U.S. at 873, and in City of Boerne, the Court stated that "[a] holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by compelling governmental interest on the basis of religious belief," City of Boerne, 521 U.S. at 534. Since the compelling state interest standard would often make claims that a law substantially burdened someone's exercise of religion difficult to contest, the Court reasoned that the compelling interest test would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind. Id. Courts analyzing RLUIPA will certainly look at its scope and the impact it will have on the "States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." City of Boerne, 521 U.S. at 534.
One federal court has addressed the question of what constitutes a substantial burden under RLUIPA. In Shepard Montessori Center Milan v. Ann Arbor Charter Township, No. 00-1072 AS (D. Mich. March 9, 2001), a Catholic school filed suit against the city charging that its zoning officials violated RLUIPA when they denied the school's application to lease additional space for expanding its operations. The court began by examining the substantial burden requirement of RLUIPA. To define the term "substantial burden," the court looked to Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990), for guidance. In Swaggart, the Supreme Court explained that "[a] state law places a 'substantial burden' on the free exercise of religion when the law either conditions receipt of an important benefit upon conduct proscribed by a religious faith, or pressures the adherent to modify his behavior and to violate his beliefs." Id. at 391-92.
The Court in Shepard Montessori concluded that the mere allegation that plaintiffs might have to relocate its K-3 school to a different zoning district did not amount to a "substantial burden" on plaintiff's religious exercise. Shepard Montessori Ctr. Milan v. Ann Arbor Charter Township, No. 00-1072 AS, slip op. at 5 (D. Mich. March 9, 2001). The court indicated that the allegations made by plaintiffs were only conclusory and general allegations of substantial burden and were therefore insufficient to meet their burden of production. Id. at 6.
In addition to the court's "substantial burden" analysis, the court also analyzed whether any burden on the school's exercise of religion affected interstate commerce. The school argued that because it purchased school supplies out-of-state its leasing the property was sufficient to affect interstate commerce. Id. at 8. The court rejected this argument, holding that the lease of real property is purely intrastate commerce, and therefore not within Congress' power to regulate under the Commerce Clause. Id. at 11-12. Furthermore, the court stated that the purchase of supplies has a purely incidental impact on interstate commerce and not a substantial effect. Id. at 12-13. Therefore, the Commerce Clause "jurisdictional hook" did not apply in this case.
The Michigan court also analyzed the application of RLUIPA's individualized assessment land use provision, section 2(a)(2)(C), to the school's situation. In conducting this analysis, the court looked to two principles to determine whether this section of RLUIPA applied to the case before it: (1) the Act must be construed as remedial only, and can only be applied to remedy governmental action that the record demonstrates has a significant likelihood of being unconstitutional; and (2) Congress has the power to legislate cases involving individualized exemptions because to deny an exemption for a religious purpose or motivation while granting it to other purposes or motivations violates the right to free exercise. Id. at 17.
Evaluating RLUIPA in light of these principles, the court noted a significant difference between RFRA and RLUIPA. RLUIPA's individualized land use provision was established by Congress with the intent to remedy the "alleged widespread discrimination against churches and synagogues, in the consideration of individual land use applications (like the consideration of individual applications for unemployment benefit exemptions in Sherbert), which is more often covert than overt." Id. at 17-18. The court noted that "these laws are not generally applicable, unlike the Commerce and Spending clause sections of RLUIPA." Id. at 18. "Thus, an individualized assessment, for purposes of this section of the Act, is a discretionary decision by a land use authority, one in which the applicant's religious purpose may be either expressly or covertly considered and, possibly, used as a basis for denial by the authority in reaching its decision." Id. at 19. (emphasis in original).
In evaluating the individualized land use provision of RLUIPA, the court held that:
The Zoning Ordinance is quite clear as to what uses are permitted in an office park district, and a primary school simply is not one of those uses. Neither the Administrator nor the Zoning Board of Appeals (ZBA) has any discretion - nor, therefore, any opportunity to discriminate against the proposed use on the basis of its religious purpose. Thus, this decision by the ZBA was not an individual assessment' under 2(a)(2)(C).
Id. at 20.
The court dismissed the plaintiff's claim holding that RLUIPA did not apply to the case because plaintiff failed to state an appropriate claim under RLUIPA's provisions. Id. at 22. While the court never concluded whether RLUIPA was constitutional, its analysis gives some indication of how other courts might evaluate future challenges.
Although the United States Supreme Court has not addressed RLUIPA's constitutionality concerning zoning regulations, this amended version of RFRA appears to have a better chance of being upheld at least at the state level. Both RFRA and RLUIPA contain the substantial burden and compelling interest test, but unlike RFRA, RLUIPA also contains significant limits on its potential reach. RLUIPA's detailed legislative history and three different sources of congressional power make it more likely to pass constitutional muster.
1. The dispute over RLPA dealt with the Act's use of the Commerce Clause as a means to make the Act constitutional. One side argued that the use of the Commerce Clause was appropriate as Congress has consistently used it in many other areas. On the other side, it was argued that by interpreting the Commerce Clause broadly to include religious liberties, it would basically mean that conservatives are conceding to big-government. Bob Jones IV, Strained Relations, Christian leaders wrestle over how best to restore religious liberty, World, June 20, 1998, at 16-17.
2. Two other cases, while they do not discuss RLUIPA's constitutionality, are examples of successful application of RLUIPA's land use provision. In C.L.U.B. v. City of Chicago, 749 N.E.2d 916 (Ill. 2001), Chicago amended its discriminatory zoning scheme that forced churches to get special use permits in an attempt to comply with RLUIPA. In Haven Shores Community Church v. City of Grand Haven, Michigan, No. 1:00-CV-175 (W.D. Mich. Dec. 20, 2000), the city denied a church a building permit, claiming that religious meetings or worship were not allowed in that area of the city, even though various other businesses, such as assembly and concert halls, were readily allowed permits. The church argued that it qualified as a "place of public assembly" and as such, should be allowed a permit. Defendants conceded that the zoning ordinance could not survive a challenge under RLUIPA. Id. This was the first recorded victory under RLUIPA, although the court did not address its constitutionality.
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