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By John Ferguson
Contributing writer

As its name suggests, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) 1 was passed by Congress in an effort to protect the religious rights of prisoners and of people who wish to use property for religious purposes when zoning laws forbid such uses. 2

Yet from its inception state and local governments have repeatedly challenged the law's constitutionality in court. Many judges hearing these challenges have ruled that the law is constitutional, 3 but increasingly, federal appeals courts are split on the issue.

The language of RLUIPA is surprisingly clear. It requires, "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 can demonstrate that it has a "compelling governmental interest" in the regulation and there is no less-burdensome method of meeting that interest. The law goes on to provide similar restrictions on "substantial burden on the religious exercise of a person residing in or confined to an institution." 4

Both the language and the legal concepts described closely track RLUIPA's ideological predecessor, the Religious Freedom Restoration Act (RFRA), which was held unconstitutional by the Supreme Court in 1997. While some states passed additional protection for religious conduct, Congress passed RLUIPA as an effort to provide protections at the federal level.

Land-use and law enforcement groups responded swiftly to RLUIPA's passage. Lawsuits claiming RLUIPA violated the establishment clause were filed, with mixed results. Conflicting rulings in the circuit courts made U.S. Supreme Court intervention necessary.

The 2004-2005 Supreme Court term resolved some of these issues. Although the Court denied certiorari in June 2005 to a Virginia prisoner in the case of Bass v. Madison, it did agree to hear a strikingly similar case — Cutter v. Wilkinson.

Cutter concerned claims by prisoners that Ohio prison regulations denying them access to religious literature and the opportunity to conduct religious services violated RLUIPA. The state argued that the RLUIPA provision involving prisoners was unconstitutional under the establishment clause. The Court unanimously backed RLUIPA.

Though Cutter did not concern RLUIPA's land-use provisions, both the prisoner and land-use portions of RLUIPA share much the same language. This similarity leads many to believe that the Court's rationale in the prisoner context will readily be usable in the land-use arena. That is why the Court's unanimous decision upholding RLUIPA in Cutter is viewed as good news to those hoping to rely on RLUIPA in various zoning disputes.

Many scholars say this guidance suggests that courts could reasonably find all of RLUIPA constitutional.

Updated August 2008

Notes

1 42 U.S.C. sections 2000cc to 2000cc-5.

2 See 146 Congressional Record S.7774, 7775.

3 Decisions upholding RLUIPA include Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002), cert. denied, Oct. 6, 2003; Charles v. Verhagen, 220 F.Supp.2d 955 (W.D. Wis. 2002), upheld on appeal (7th Cir. Oct. 30, 2003); Freedom Baptist Church v. Middletown, 204 F. Supp. 2d 857 (E.D.Pa. 2002); Johnson v. Martin, 223 F.Supp.2d 820 (W.D. Mich. 2002); and Gerhardt v. Lazaroff, 221 F.Supp.2d 827 (S.D. Ohio 2002). Additionally, in the prison-rights case of Marria v. Broaddus, a federal district court in New York observed that neither side in that case disputed the constitutionality of RLUIPA and that the court therefore assumed it was constitutional. 2003 U.S. Dist. LEXIS 13329 (S.D.N.Y. July 31, 2003). Although a federal district court ruled in Ghashiyah v. United States that RLUIPA's prisoner-rights provisions were unconstitutional, the court noted, "A number of courts have addressed the issue of whether RLUIPA is constitutional; most have held that it is." 250 F. Supp. 2d 1016 (E.D. Wis. 2003).

4 42 U.S.C. sections 2000cc.

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