First Amendment topicsAbout the First Amendment
Zoning religion: the battle over RLUIPA

By James D. McWilliams
Contributing writer

Editor’s note: This article was written in 2003. See update below on U.S. Supreme Court’s 2005 ruling in Cutter v. Wilkinson.

Today, the First Amendment of the Constitution protects a person’s right to worship freely, but controversy still rages over how much power local governments should have over where and when religious groups can worship. While religious groups assert that governments often use zoning rules to mask religious discrimination and disfavor religious uses of land, zoning boards assert they are merely trying to protect property values for neighboring landowners.

In response to these concerns, Congress passed the Religious Land Use and Institutionalized Persons Act of 20001 (or RLUIPA, pronounced “ruh-LOOP-uh”) to protect the religious freedom of people wanting to use zoned land for religious purposes, and to protect the religious freedom of prisoners.2 The following material provides some historical background to this controversy, as well as an overview of current land-use cases involving RLUIPA.

Introduction to zoning rights
In the 1926 case Euclid v. Ambler Realty Co.,3 the Supreme Court ruled that local governments have the power to divide their territory into zones, in which landowners must use their land in conformity with each zone’s residential, commercial or industrial purpose. Cities have adopted zoning because it encourages municipal growth by protecting homes from traffic, noise, pollution and other nuisances that drive down property values and discourage people and businesses from moving into areas. Following those rationales, cities have often enforced zoning by prohibiting religious uses of land that increase noise or traffic or decrease property values. Zoning officials are also concerned with protecting the tax base by zoning land in ways that will produce the best mix of property taxes.

But zoning power is not absolute. In the 1985 case City of Cleburne v. Cleburne Living Center,4 the Supreme Court ruled that cities cannot make zoning decisions based on irrational prejudice against politically unpopular groups. In Cleburne, the Supreme Court invalidated a zoning restriction that discriminated against group homes for the “feebleminded,” but that allowed fraternity houses, and group homes for senior citizens, in the same area. The Supreme Court invalidated that zoning rule by using the most lenient standard of judicial review under the 14th Amendment’s equal-protection clause.

In the 1981 case Schad v. Mount Ephraim,5 the Court had previously ruled that zoning discrimination against free speech is unconstitutional when cities ban a broad category of protected expression from a whole jurisdiction. The Court ruled in Schad, “When a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.” Further, the law “must leave open adequate alternative channels of communication” for any restricted speech.6

The Schad decision specifically prevented zoning from totally excluding live nude entertainment from jurisdictions, but courts have since used that decision to prevent zoning from excluding religious groups. In the 1988 case Islamic Center v. Starkville, a federal appeals court ruled that a zoning provision requiring a permit to establish a place of worship anywhere in Starkville, Miss., was unconstitutional because such a permit had never been granted to a Muslim congregation.7

In response to these situations and to the Supreme Court’s 1997 decision invalidating the Religious Freedom Restoration Act (RLUIPA’s ideological predecessor), Congress passed RLUIPA. The land-use provisions of RLUIPA require governments to:

  • Not totally exclude religious assemblies from a jurisdiction.
  • Give religious and nonreligious institutions equal treatment in land-use regulation.
  • Not use religious discrimination in land regulation.
  • Not unreasonably limit religious assemblies, institutions, or structures within a jurisdiction.

RLUIPA specifies that those requirements are applicable only when state or local governments “substantially burden” religion through a program or activity that receives federal financial assistance, or that affects interstate or international commerce, or that includes formal or informal procedures allowing a government to make “individualized assessments” of property uses. States and local governments must comply with RLUIPA to gain certain federal funds.

Responses to RLUIPA
Soon after passage, state and local governments began challenging RLUIPA’s constitutionality in court. While most judges hearing challenges to RLUIPA have ruled that the law is constitutional,8 a majority of these cases challenged the prisoner-rights provisions and not land use.9 Yet RLUIPA’s prisoner-rights and land-use provisions share certain legal language, so rulings for or against the prisoner-rights protections could influence court decisions on whether the land-use protections are valid.

Courts are already beginning to disagree about the validity of RLUIPA. In June 2003, a lower federal court in California ruled, in Elsinore Christian Center v. Lake Elsinore, that RLUIPA’s land-use protections were unconstitutional.10 No federal court had so ruled before. The 9th U.S. Circuit Court of Appeals, which has jurisdiction over the case, had already issued a potentially contrary ruling in a 2002 prisoner-rights case, Mayweathers v. Newland,11 which upheld RLUIPA provisions. In October 2003, the Supreme Court turned down an opportunity to review that case. A second federal appeals court, the 7th Circuit, subsequently upheld RLUIPA in the prisoner-rights context in the October 2003 case Charles v. Verhagen.12 However, a 6th Circuit federal appeals court ruled against RLUIPA’s prisoner-rights protections in the November 2003 case Cutter v. Wilkinson.13 Finally, a lower federal court in Pennsylvania, in the 2002 case Freedom Baptist Church v. Middletown,14 ruled that RLUIPA’s land-use protection is constitutional.

Only time will tell whether the judicial tide is turning against RLUIPA’s land-use provisions, or whether Elsinore and Cutter will be pushed aside by a stronger pro-RLUIPA current. Because the Supreme Court probably must settle the issue, court watchers may be justified in placing bets on either side of this constitutional controversy.

Conflict in the Circuits: Two views of RLUIPA
The lower federal court in Elsinore ruled that RLUIPA’s land-use protections were unconstitutional because Congress had declared, allegedly without sufficient proof or judicial precedents, that restrictions on land use were a substantial burden on religious exercise. By contrast, the 7th Circuit court that upheld RLUIPA’s land-use protections in Freedom Baptist ruled, “Whatever the true percentage of cases in which religious organizations have improperly suffered at the hands of local zoning authorities, we certainly are in no position to quibble with Congress’s ultimate judgment that the undeniably low visibility of land regulation decisions may well have worked to undermine the Free Exercise rights of religious organizations around the country.”

Freedom Baptist: Why Congress was Right
The Freedom Baptist court pointed to the nine hearings and three years that Congress devoted to creating RLUIPA, and quoted a statement by the law’s congressional sponsors,

“The right to build, buy or rent [space for churches and synagogues] is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.

“The hearing record compiled massive evidence that this right is frequently violated. 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 process of land use regulation.”

RLUIPA’s sponsors also observed that “individualized assessments readily lend themselves to discrimination,” but also by their nature “make it difficult to prove discrimination in any individual case.” The Freedom Baptist court cited numerous Supreme Court cases ruling that religious bias in such individualized assessments subjects them to strict scrutiny, the type of scrutiny that RLUIPA requires.

The Freedom Baptist case involved a Pennsylvania town whose zoning officer commanded 25 church members to stop holding worship services on Sundays and Wednesday nights in office space they had rented. None of the 17 zoning districts in the town automatically allowed churches. Although some districts would allow churches if they first gained special permits, permits were unavailable to churches that owned less than five acres and that did not meet parking requirements. After the church filed a RLUIPA lawsuit, the court took note of their argument that the “land requirement alone would make it next to impossible for a new church to locate within the Township,” because such a parcel “would be prohibitively expensive and it is unlikely that there would be available land to meet the requirement.”

Eventually, the church gained a variance to use their desired space, but sued the town to recover variance costs that would not have been imposed on similar, nonreligious groups, and to recover costs related to the church’s initial eviction.

The Freedom Baptist court found RLUIPA’s land-use protections applicable to the church’s situation, and constitutional under the Supreme Court’s rulings in Schad v. Mount Ephraim (the nude-entertainment case), City of Cleburne v. Cleburne Living Center (the group-home case), and other precedents discussed later in this article.

Elsinore: RLUIPA uses the Wrong Standard
The anti-RLUIPA Elsinore case involved officials in a central California city who denied a church a conditional-use permit to move its congregation from an existing church building into vacant space in a nearby commercial building. The zoning in the area would allow a variety of types of stores, restaurants and other commercial establishments to move into the building “as a matter of right,” but would allow churches, bars, mortuaries and some other types of establishments only with permits.

At trial, the court ruled against the church. City officials were found in violation of RLUIPA by refusing to grant the church a zoning permit when the church would potentially be as beneficial to the surrounding community as the existing tenant in the commercial building, a grocery store. But the court then ruled that RLUIPA’s land-use protection established an unconstitutional standard for weighing religious rights. The court held that a government burden on religious exercise is “substantial,” and possibly unconstitutional, only when it would cause a religious adherent to trespass on a “central religious belief or practice.” The text of RLUIPA outlaws religious discrimination in any circumstance falling within the law’s jurisdiction, whether or not such discrimination would restrict a religious exercise “compelled by, or central to,” a plaintiff’s beliefs.

This position is bolstered by a 7th Circuit appeals court ruling in Civil Liberties for Urban Believers (C.L.U.B.) v. Chicago (August, 2003), which found RLUIPA’s legislative history15 shows Congress did intend the law to apply only to substantial burdens on actual religious beliefs or practices.16 The parties to that case asked the 7th Circuit appeals court to rule on RLUIPA’s constitutionality, but the court decided that such a ruling was unnecessary after adopting a narrow interpretation of the law, defining “substantial burden” with reference to religious beliefs and practices. The C.L.U.B. court characterized RLUIPA as offering “legitimate protections” to religious exercise. This follows lower federal court rulings in the 7th Circuit which previously held that religious discrimination is unconstitutional in zoning.

Precedential Origins of these Theories
The Elsinore court based its anti-RLUIPA ruling on language in the Supreme Court’s 1989 ruling in Hernandez v. Commissioner,17 a tax case in which the Court prevented members of the Church of Scientology from claiming tax deductions for alleged contributions that bought personal services. In Hernandez, the Supreme Court ruled, “The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice,” but the Court also ruled, “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” Thus, in Hernandez the Court arguably accepted the word of religious believers on whether their sincere belief was “central,” unlike Elsinore, and used other criteria to determine if a burden on that belief was “substantial.” Disallowing tax deductions for quid pro quos, even when they are religious in nature, was not a substantial burden on religion under Hernandez.

In Hernandez, the Supreme Court expressed “doubts” that a law was a substantial burden on religious exercise when the following facts were true:

  • The law itself did not discriminate on a religious basis.
  • Believers could obey the contested law without disobeying their faith.
  • Obedience to the law came without suffering a burden “different from that imposed by any [uniformly applicable] public tax or fee.”

The Court had followed similar reasoning in the 1961 case Braunfeld v. Brown,18 which held that Sunday-closing laws did not violate the religious freedom of Orthodox Jewish merchants. A plurality of the Court reasoned that such laws did not have a discriminatory purpose or effect, that Jews could close their shops on Sunday without breaking the Saturday Sabbath, and that closing shops two days a week instead of one was an indirect, economic burden rather than a religious burden. (The Court’s rulings on some of these issues downplayed the religious origin of Sunday-closing laws as a forced religious observance. The Court focused instead on secular justifications for having a uniform day of rest, and required such a secular purpose for any law restricting religion.)

Interpreting Braunfeld in the context of a pre-RLUIPA, 1983 zoning case, the 6th U.S. Circuit Court of Appeals ruled in Jehovah’s Witnesses v. Lakewood, “Inconvenient economic burdens on religious freedom do not rise to a constitutionally impermissible infringement of free exercise” when “neither the purpose nor the effect of the law was to impede religious observation or to discriminate among religions,” and when no religious group “must choose between exercising its religious beliefs and forfeiting government benefits or incurring criminal penalties.”19

In Lakewood, the 6th Circuit upheld a zoning ordinance that allowed new church buildings in only 10% of a city but that allowed new congregations to buy existing churches in the remaining 90%. However, the 6th Circuit left open the possibility that it might sometimes rule that zoning laws were an unconstitutional infringement of religious exercise. Specifically, the court ruled, “We do not hold that the act of building [a religious structure] is per se that of secular conduct. We limit our holding to the record before us; a record which shows no conflict between the zoning ordinances and the religious tenets or practices of this Church” and which shows government actions “rooted only in secular philosophy or personal preference.”

Under those circumstances of the Lakewood case, building and owning a church is “a desirable accessory of worship, not a fundamental tenet” that a court must protect from infringement, ruled the court. But the court did allow the possibility that zoning laws may violate the First Amendment when they are based on religious discrimination, or when zoning rules directly conflict with obeying sincere20 religious beliefs.

Thus, the idea that zoning can sometimes infringe on religious freedom was not alien to courts before RLUIPA, although — in cases without Cleburne’s prejudice or Schad’s total exclusion or free-speech violation — courts may have recognized such infringement using narrow criteria. How specific courts of appeal will rule on specific RLUIPA provisions may be a mystery. For instance, although the 6th Circuit left open the possibility in Lakewood that it could ban certain zoning laws as religiously discriminatory, that court ruled against RLUIPA’s prisoner-rights provisions in Cutter v. Wilkinson.

RLUIPA: The right cure for the ailment?
If the problem religious groups face is religious bias, is RLUIPA the best tool for addressing the wrong? The Elsinore court does not think so. Relying on its definition of “central” beliefs with some support from Lakewood and other pre-RLUIPA cases,21 they ruled that protecting religious use of land via RLUIPA is improper. “Because zoning regulations and decisions rarely bear upon central tenets of religious belief, those regulations and decisions have not generally been held … to impose a substantial burden on religious exercise,” ruled the Elsinore court.

That court decided that laws to prevent discrimination must be “congruent and proportional” to the harms those laws prevent, and that RLUIPA is overbroad in that respect. That court suggested that RLUIPA could allow religious groups to reverse governments’ zoning decisions automatically, using religious controversy to force officials to justify decisions that were based on mundane concerns.

Zoning decisions are usually “not so pervaded by religious bigotry that this blunderbuss of a remedy [RLUIPA] can be described as ‘congruent and proportional’ to the perceived injury,” the Elsinore court ruled.

In the 2002 case Hale O Kaula Church v. Maui, another federal district court noted concerns about whether RLUIPA was a congruent and proportional remedy for zoning discrimination. But that court ruled that RLUIPA’s constitutionality was “moot” in the case because a separate civil-rights law already subjected the zoning at issue to strict scrutiny. That law, the Civil Rights Act,22 was not invoked by the parties in the Elsinore proceeding that declared RLUIPA unconstitutional. Unlike the Elsinore court, the Hale O Kaula court held that RLUIPA does not exempt religious institutions from land-use regulation, and that Congress did not intend such an exemption.23 The Freedom Baptist court ruled the same way, in upholding RLUIPA.

The 7th U.S. Circuit Court of Appeals likewise held in C.L.U.B. v. Chicago that neither RLUIPA nor the Constitution totally prevents governments from restraining religious use of property. Instead, RLUIPA prevents any zoning that bears “direct, primary, and fundamental responsibility” for making a religious use of land “effectively impracticable” in a jurisdiction, the court ruled. Primarily, such a law would be one that “forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.”24

Such a substantial burden on religion does not exist in the normal “costs, procedural requirements, and inherent political aspects … incidental to any high-density urban land use,” the court held. “Otherwise, compliance with RLUIPA would require municipal governments not merely to treat religious land uses on an equal footing with nonreligious land uses, but rather to favor them in an outright exemption from land-use regulations. Unfortunately for [religious groups], no such free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise.”

Because city officials in the C.L.U.B. case had amended their zoning laws to put religious institutions on equal footing with similar, nonreligious institutions, the laws placed no substantial burden on religion, according to the court. Thus, the court decided that the plaintiff churches had no RLUIPA claim, because a subsection of RLUIPA specifies that “a government may avoid the preemptive force of any provision of [RLUIPA] by changing the policy or practice that results in a substantial burden on religious exercise.”

By contrast, in Freedom Baptist, the plaintiff church specifically sued to recover costs that discrimination had inflicted on them, and such claims would not be disposed of by applying the preemptive provisions of RLUIPA.

Some potential arguments favoring RLUIPA
Despite Elsinore’s characterization of RLUIPA’s land-use protection as a “blunderbuss” remedy that improperly redefines constitutional rights, the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Elsinore, has expressed the opposite about potentially similar RLUIPA provisions on prisoner rights.

Both the prisoner-rights and land-use portions of RLUIPA have some common language that the 9th Circuit upheld as constitutional in the prisoner case of Mayweathers v. Newland, and that the 7th Circuit likewise upheld in the prisoner case Charles v. Verhagen. Because those appeals courts upheld that language, they might uphold RLUIPA’s land-use protections too.

Both the land-use and prisoner-rights portions of RLUIPA forbid any government activity from imposing a “substantial burden” on anyone’s religious exercise unless the burden is the least restrictive means of furthering a “compelling governmental interest,” whenever that government activity receives federal funds or affects federally regulated commerce. In Mayweathers, the 9th Circuit’s three-judge panel ruled that such language does not violate the First Amendment rule against a government establishing religion and does not violate 10th or 11th Amendment rules protecting state sovereignty. In Charles, the 7th Circuit ruled that such RLUIPA language does not violate the First or 10th Amendments.

The Mayweathers and Charles courts applied the Supreme Court’s Lemon v. Kurtzman25 test for compliance with the First Amendment rule against state-established religion. That three-pronged test requires that laws must have a secular purpose, must have a primary effect that neither advances nor inhibits religion, and must avoid excessive entanglement of the government in religion. Only the second prong of that test was actually at issue in Charles.

The Mayweathers court held that RLUIPA has the valid secular purpose of alleviating significant government interference with the missions of religious groups, and the Charles court held that RLUIPA has the valid purpose of preventing government discrimination. The Mayweathers and Charles courts ruled that RLUIPA’s primary effect neither advances nor inhibits religion, because the law instead forbids states from placing impermissible burdens on worship. In the context of prisoner rights, the Mayweathers court ruled that RLUIPA does not foster “excessive entanglement” of the government in religion, because the statute does not, on its face, require state officials to develop expertise in religious worship or to evaluate the merits of religious beliefs or practices, or require the federal government to monitor whether states indoctrinate anyone. (Of course, RLUIPA also does not require or explicitly permit governments to indoctrinate anyone.) Because RLUIPA’s land-use provisions also do not, on their face, require such specific entanglement of the government in religion. RLUIPA’s supporters use similar arguments when defending the law’s land-use protections.

The Mayweathers and Charles courts ruled that the portion of RLUIPA forcing states to comply with the law to gain related federal funds does not exceed Congress’ power to attach conditions to states’ receiving such funds. Article I, Section 8, of the Constitution gives Congress power to raise and spend tax money for the “general welfare,” and the Supreme Court has interpreted that provision, in South Dakota v. Dole26 and Pennhurst State School v. Halderman,27 to give Congress discretion to award federal aid based on recipients’ voluntary compliance with unambiguous conditions that do not require states to engage in unconstitutional conduct.

Having found that Congress had constitutional spending power to pass RLUIPA, the Mayweathers and Charles courts ruled that it did not need to determine whether the Constitution’s commerce clause also gave Congress power to pass the law. The commerce clause gives Congress the power to regulate interstate and international commerce. The Supreme Court has traditionally interpreted that clause to give Congress power to regulate any economic activity with a substantial effect on interstate commerce, even if that activity is purely local.

The Freedom Baptist court ruled that RLUIPA’s land-use protections fall within Congress’ commerce-clause authority, because previous court decisions have recognized Congress’ jurisdiction over commercial transactions involving land and churches. Those cases include Groome Resources Ltd. v. Jefferson,28 a 2000 appeals court case that upheld the constitutionality of provisions of the Fair Housing Amendments Act, and Tony & Susan Alamo Foundation v. Secretary of Labor,29 a 1985 Supreme Court case requiring churches to observe the Fair Labor Standards Act. The U.S. Justice Department has also advanced many arguments supporting the idea that land use is an economic activity Congress can regulate through RLUIPA.

How prisoner-rights cases and land-use cases may differ
But, just as the pro-RLUIPA decision on prisoner rights in Mayweathers may give courts reasons to make pro-RLUIPA decisions on land-use issues, a few other anti-RLUIPA decisions on prisoner rights may give courts reasons to make anti-RLUIPA decisions on land-use issues. Before Elsinore, all prior anti-RLUIPA rulings were against the law’s prisoner-rights protections. While the 4th and 7th Circuits have overruled lower courts and found RLUIPA constitutional, the 6th Circuit ruled against RLUIPA’s prisoner-rights protections in Cutter v. Wilkinson. The Cutter court found RLUIPA’s prisoner-rights provisions unconstitutional because they encourage prisoners, who enjoy few rights,30 to engage in religious conduct to gain additional rights.

The logic behind anti-RLUIPA decisions in the prisoner context may not entirely apply to free persons making land-use decisions, because free persons — unlike prisoners — have a variety of fundamental rights that courts protect, and theoretically such persons need not engage in religious conduct to exercise those rights.

Because RLUIPA explicitly requires zoning authorities to give equal treatment to religious and nonreligious users of land, the law could conceivably require cities to give equal treatment to a church asserting religious rights and a bookstore or theater asserting free-speech rights — to the extent that the church, bookstore and theater all created or did not create a harmful impact on their neighborhood.31 In that regard, churches competing to use land might enjoy an advantage only over those bookstores or theaters that specialize in sexually explicit speech, because the Supreme Court has assumed that adult-entertainment centers have harmful effects on neighborhoods, in the case Renton v. Playtime Theatres.32 However, even when zoning officials restrict adult-entertainment centers on one piece of land, such officials must give those businesses “reasonable alternative avenues of communication” somewhere else, if the entertainment is not obscene,33 merely indecent.34

Two fundamental rights treated differently
Further, although Cutter takes offense at Congress allegedly protecting religious rights more than other fundamental rights, such as free speech, Congress ironically passed RLUIPA because of the widespread perception that courts protect religious rights less than other fundamental rights, specifically speech rights.

In a dissent to Braunfeld v. Brown, the case that upheld Sunday-closing laws as a merely economic burden on Jews, Supreme Court Justice William Brennan condemned the Court’s apparently inconsistent treatment of speech and religion. Arguing that all First Amendment rights should be treated equally, Brennan compared the economic impact that Sunday-closing laws had on Jews to an unconstitutional tax levied only on certain religious literature.

Courts ruling for and against RLUIPA have recognized that the law is Congress’ latest response to the Supreme Court’s 1990 decision in Employment Division v. Smith, which held that a citizen’s First Amendment right to freely exercise religious beliefs does not “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’” that incidentally conflicts with those beliefs.35 The Smith case specifically prevented Native Americans from gaining an exemption from anti-drug laws to use sacramental peyote in religious rituals, because the drug laws are religiously neutral and generally applicable.

By comparison, a law that conflicts with a citizen’s free-speech rights (outside the prison context) is not constitutional merely because it is neutral and generally applicable. Under Supreme Court precedent, restrictions on speech are often presumptively invalid.36 The Court insists that, to be allowable, content-based restrictions on speech must be necessary to fulfill a compelling government interest and must be narrowly drawn to achieve that interest. The Court has articulated that standard in such cases as Carey v. Brown (1980),37 which overruled an anti-picketing law. Even a viewpoint-neutral law that regulates speech cannot bar public discussion of an entire topic.38 Yet the Court has seldom applied strict scrutiny to government infringements on the free exercise of religion.

One of two rare situations when courts require a state to show a compelling interest before substantially burdening someone’s religious exercise is when a state denies unemployment benefits to a citizen who has been fired from work because of a non-criminal exercise of religious beliefs, as in Sherbert v. Verner,39 a 1963 case involving a Seventh-day Adventist who would not work on the Saturday Sabbath because of her Christian religious beliefs,40 or Thomas v. Review Board, a 1981 case involving a Jehovah’s Witness who would not accept a job transfer requiring him to build tank turrets, because his beliefs forbade producing weapons.41

The other rare situation is when a religious exercise is a “hybrid right” protected by both freedom of religion and another constitutional protection. For example, the additional constitutional protection could be freedom of speech, as in the 1940 case Cantwell v. Connecticut,42 which involved the right of a Jehovah’s Witness to conduct religious solicitations. Or the additional constitutional protection could be a privacy right, such as the right of parents to direct the education of their children, as in the 1972 case Wisconsin v. Yoder.43 That case invalidated compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their teenagers to high school.

Church-zoning cases might sometimes involve “hybrid rights.” In the March 2003 case Vineyard Christian Fellowship v. Evanston, a federal district court in Illinois ruled that zoning that singles out churches for adverse treatment violates their freedoms of speech and assembly. In the 1988 federal appeal to Messiah Baptist Church v. Jefferson, a dissenting judge ruled that zoning restrictions on religious buildings infringe the freedoms of speech, assembly and religion. The dissenting judge in Messiah held that a government’s power to restrict speech and assembly on private property should be far less than the state’s power to restrict them on public property, where citizens enjoy “the highest level of constitutional protection.” Judges with that view might support RLUIPA’s requirement that governments show a “compelling interest,” rather than Smith’s bare neutrality, before strongly restricting worship buildings in certain contexts.

‘Individualized’ exception to Oregon v. Smith
Alternatively, some courts could view RLUIPA as falling into an exception the Supreme Court left in Employment Division v. Smith, and later elaborated on in Church of Lukumi Babalu Aye v. Hialeah.45

“In circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of “religious hardship” without compelling reason,’” ruled the Court in Hialeah. That case overturned city ordinances that outlawed animal sacrifices in the religious ceremonies of Santeria, a mixture of African and Catholic religious practices. Although the ordinances did not discriminate on their faces, they allowed individualized exemptions for practically everyone — except Santerians — who needed to slaughter animals. Individualized discrimination by states can be outlawed by Congress under the enforcement provisions of the 14th Amendment.46

The “individualized assessment” doctrine is a more generalized version of the rule the Supreme Court followed in the unemployment cases Sherbert and Thomas.

In upholding the constitutionality of RLUIPA’s land-use protections, the federal district court in Freedom Baptist Church v. Middletown ruled:

“No one contests that zoning ordinances must by their nature impose individual assessment regimes. That is to say, land use regulations through zoning codes necessarily involve case-by-case evaluations of the propriety of proposed activity against extant land use regulations. They are, therefore, of necessity different from laws of general applicability which do not admit to exceptions on Free Exercise grounds. See Smith.

“What Congress manifestly has done in [RLUIPA’s land-use protection] is to codify the individualized assessments jurisprudence in Free Exercise cases that originated with the Supreme Court's decision in Sherbert v. Verner. In Sherbert, the Supreme Court held that South Carolina could not constitutionally withhold unemployment benefits to a member of the Seventh Day Adventist Church ‘because she would not work on Saturday, the Sabbath Day of her faith.’ Since the South Carolina statute permitted ‘individualized exemptions’ based on ‘good cause,’ the Supreme Court held that South Carolina could not refuse to accept Ms. Sherbert's religious reason for not working on Saturday as ‘good case’ absent a compelling state interest that permitted such denials by the least restrictive means available.” [Citation page numbers deleted.]

In the Hale O Kaula case, mentioned earlier, a federal district court hinted that RLUIPA’s land-use protections might include a constitutionally permissible codification of Oregon v. Smith’s “individualized-assessments” doctrine, but the Hale O Kaula court ruled that RLUIPA’s constitutionality was “moot” in that specific case.

Efforts to protect speech and religion similarly
Congress initially responded to Oregon v. Smith’s potential limitation on religious freedom by passing the Religious Freedom Restoration Act (or RFRA, pronounced “RIFF-ruh”). That law required government authorities to show a compelling interest justifying any substantial burden that government actions placed on religious practices. Congress asserted that it had power under the 14th Amendment to enforce RFRA against state and local governments, because that amendment explicitly empowers Congress to pass “appropriate legislation” to protect civil rights from state interference. But the Supreme Court later ruled in City of Boerne v. Flores that Congress had exceeded its 14th Amendment power, by essentially creating new civil rights rather than merely protecting existing rights.47 Most courts have interpreted that ruling to make RFRA invalid against state and local governments, but not against the federal government.48 (For example, in Freedom Baptist, the federal district court noted that the continuing enforceability of RFRA against the federal government is one sign Congress can legislate to protect religious freedom.) While not binding, the Cutter court cited as persuasive anti-RFRA precedent in ruling that RLUIPA was also constitutionally invalid.

The Supreme Court’s RFRA ruling led Congress to pass RLUIPA, a narrower law that advocates hoped would fare better under judicial scrutiny.

“RLUIPA does not erroneously review or revise a specific ruling of the Supreme Court because the statute does not overturn the Court’s constitutional interpretation in Smith,” explained the appeals court in Mayweathers. “Rather, RLUIPA provides additional protection for religious worship, respecting that Smith set only a constitutional floor — not a ceiling — for the protection of personal liberty. Smith explicitly left heightened legislative protection for religious worship to the political branches.”

Yet the Elsinore court held that Congress needs more justification before extending worship protection to the zoning context. The Elsinore court expressed skepticism about the Elsinore Christian Center’s claim that its members felt “called by God to minister” at a specific new church location, when the church already ministered to the same community in a building only three blocks away. The court held, “It is apparent from the record and Complaint that the church’s relocation is sought primarily to ameliorate parking problems, and perhaps secondarily to afford the church more space.” Treating a city’s zoning decisions on such matters like traditional religious discrimination improperly redefines First Amendment protections, ruled the Elsinore court.

Similarly, the 10th U.S. Circuit Court of Appeals ruled in the pre-RLUIPA, 1988 case Messiah Baptist Church v. Jefferson that a church’s mere “preference for a pastoral setting,” when not “intimately related to the religious tenets of the church,” was not an interest protected by the First Amendment.49

Other church protections: Freedoms of speech and assembly
Although Elsinore ruled that zoning restrictions are not normally limited by the Constitution’s protection of religious exercise, other courts have ruled that such restrictions are limited by related protections for the freedoms of speech and assembly.

A federal district court ruled in the previously mentioned Vineyard Christian Fellowship v. Evanston that zoning that discriminates against religious speech and religious assemblies violates the 14th Amendment’s equal-protection clause. Specifically, the court ruled that city officials had no rational basis for creating zoning that specifically excluded churches but did not exclude clubs or theaters where people similarly assemble to share or enjoy speech. The Vineyard court observed that restrictions on the freedoms of speech and assembly are treated the same legally,50 and ruled that the zoning restrictions at issue subjected both freedoms to improper religious discrimination.

The same federal court made a similar ruling in Christ Universal Mission Church v. Chicago,51 in 2002. The court held that zoning officials had no rational basis for excluding churches and permitting community centers in the same zone.

The Vineyard court ruled that it did not need to rule on the constitutionality of RLUIPA, because the case at issue fell outside the law’s jurisdiction by not involving a substantial burden on religious exercise. The court ruled that, under prior precedents, the zoning at issue primarily placed a financial burden on religion, and did not put pressure on church members to alter their religious practices. The Vineyard congregation already worshiped at a location in the jurisdiction, and city officials there allowed the church to use other, zoning-restricted property for administrative offices, counseling and special events. However, the court noted:

“The court recognizes the apparent oddity of concluding that Vineyard’s right to equal protection of the laws has been violated [through restrictions on free speech and free assembly], on the one hand, and on the other hand, deciding that Vineyard’s right to free exercise of religion has not been substantially burdened. … Perhaps this apparent awkwardness arises because equal protection clause jurisprudence does not require a claimant to demonstrate a substantial burden, the necessary hurdle under the free exercise clause. The court is confident that the parties in this case as well as future litigants would welcome further guidance from our Court of Appeals on this complex issue.”

The Vineyard court seemed to ridicule the apparent arbitrariness of anti-church restrictions, noting, “Vineyard’s congregants may permissibly stage (at the subject property) a production of the musical play ‘Fiddler on the Roof,’ which includes a scene depicting a traditional Jewish wedding. Vineyard may not, however, host an actual religious wedding.”

The court also observed that, under a previously forbidden version of the contested zoning, any group that wanted to regularly assemble to discuss classical literature, and to educate children on it, was allowed to do so in any commercial zone, but if the same group wished to assemble for religious worship and to educate children about religion, the group needed special permission from city officials. Such a restriction improperly discriminated between religious and nonreligious speech and assemblies, according to the court.52

Normally, under Supreme Court precedent, such content-based restrictions of speech are presumptively invalid,53 but the Vineyard court noted that content-based regulations can sometimes be treated as if content neutral in the zoning context, when a law’s purpose is to prevent surrounding neighborhoods from suffering harmful “secondary effects” of speech — such as noise or crime. Thus, the Vineyard court subjected anti-church zoning to a form of scrutiny that the Supreme Court applies to content-neutral restrictions on the time, place and manner of speech.

Under the Supreme Court precedent in Ward v. Rock Against Racism,54 reasonable “time, place and manner” restrictions are scrutinized to determine if they:

  • Are justified without reference to speech content.
  • Are narrowly tailored to serve a significant government interest.
  • Leave open ample alternative channels to communicate.

Under that scrutiny, the court ruled that traffic problems that officials said a church would have caused in an office zone were no greater, and actually less, than problems permitted institutions would cause. Additionally, the court ruled that city officials’ claim that churches reduced property-tax revenue in neighborhoods was not a valid explanation for excluding churches from neighborhoods where other nonprofit organizations, which avoid taxes, could locate.

Thus, although the Vineyard court grudgingly raised a barrier against some RLUIPA and other religion clause claims, Vineyard — like Lakewood and Freedom Baptist — left available the conclusion that zoning can sometimes infringe on religion.

But the 7th U.S. Circuit Court of Appeals ruled in C.L.U.B. v. Chicago that zoning restrictions on religious groups did not violate their freedoms of speech and assembly, under Ward v. Rock, when the following facts were true:

  • Zoning was unmotivated by disagreements over speech or ideas.

  • Religious groups could “freely disseminate religious speech in a majority of … land zoned for development.”

  • Religious groups could locate worship buildings “as of right” in at least one section of the city and could locate on equal terms with nonreligious groups in other areas.

  • Zoning procedures gave religious groups “ample opportunity” to locate in multiple areas in a manner consistent with the “legitimate, stated purposes” of zoning laws.

Under the court’s reasoning, the first of those facts showed that zoning was justified without reference to speech. The other facts helped show that speech restrictions were narrowly tailored and left ample alternative channels for communication. The court noted that a local government’s interest in promoting “harmonious and efficient land use” is “substantial,” and that, under Ward, narrowly tailored restrictions that effectively serve such an interest “need not be the least restrictive or least intrusive” laws possible.

By contrast, zoning that fails the Ward test probably violates religious groups’ freedom of speech.

It’s important to note that not all the judges in the C.L.U.B. case agreed with the previous, positive recital of the facts of the case or with the court’s application of those facts to the Ward test. It’s also potentially important to note that the dissenting judge in C.L.U.B. was none other than Richard Posner, one of the nation’s most respected experts on the interplay between law and economics. Posner held that both traditional and economic forms of religious discrimination were at play in the C.L.U.B. case, and that less-affluent religious groups had been denied their rights. Applying economic scrutiny to C.L.U.B., Posner held:

“Chicago’s ordinance discriminates in favor of well-established sects. Not only did they acquire the land on which their churches are built in residential areas when such land was relatively cheap and abundant, and therefore affordable by noncommercial entities, such as churches … ; in addition, because nonconforming uses are grandfathered, the churches that have managed to get permission to build over the years in nonresidential zones are untouchable. But what of new, small, or impecunious churches, such as the 40 to 50 obscure sects, one of which has only 15 members, that compose the principal plaintiff, Civil Liberties for Urban Believers?”

Posner condemned anti-church zoning as a break from the American tradition of encouraging competition in both spiritual and economic matters:

“[T]he greater vitality of American religion than of religion in countries in which there is an established church or churches owes much to our unwillingness to allow government to favor particular sects. By impairing religious competition, such favoritism turns many people — those not comfortable with the creed or clergy or congregants of the favored church — off religion.

“Religious competition presupposes free entry into the religious ‘marketplace.’ A new church is unlikely, however, to have the resources necessary for building its place of worship in a residential area other than a slum. … A church that wants to build in the commercial zone, where land is cheaper, must obtain a special permit; and if it wants to build in the manufacturing zone, it is out of luck unless it can procure an amendment to the zoning ordinance.”

Procedures for getting permits to locate in commercial zones were too expensive, too discretionary, and too predictably political for small religious groups to survive the process, even when they could afford to buy desired land and would use it no differently than larger, grandfathered institutions did, reasoned Posner. Further, the common argument that churches “do not enhance commercial activity” in certain zones often masks the anti-religious biases of people who “consider the presence of a church rather a downer in a ‘fast’ district,” and masks the sectarian biases of mainline churches that don’t want to compete against newer religious groups, Posner held. In his evaluation, such biases are equivalent to the zoning discrimination against people with mental disabilities that the Supreme Court overruled in City of Cleburne v. Cleburne Living Center.

Charges of bigotry
Even though the court in Elsinore did not find evidence of explicit religious bigotry against the Elsinore church that would justify RLUIPA’s land-use protection, other congregations nationwide report that they do encounter such bigotry in zoning. The Becket Fund for Religious Liberty, which frequently represents religious groups in RLUIPA cases, has accused officials in a Pennsylvania town of discriminating against Jews in denying a Jewish congregation a zoning variance to move into a chapel that had previously been used as a Catholic convent and a Greek Orthodox monastery. According to a Becket Fund news release, some neighbors of the property objected to the Jewish congregation’s proposed use of the property, regardless of any conditions that might be imposed. One neighbor reportedly made the blunt assertion, “I don’t want a synagogue in my backyard.”55

The synagogue’s ongoing RLUIPA case, Congregation Kol Ami v. Abington Township,56 is still working its way through the court system, after an initial trial-court victory via partial summary judgment, and a remand by the 3rd U.S. Circuit Court of Appeals. The remand vacated the trial court’s ruling because that court had failed to evaluate whether the congregation’s proposed use of land was similar to uses permitted by special exception in the area, such as municipal libraries and kennels. The appeals court ruled that prior religious use of the property was more residential than the use the Jewish congregation planned.

The appeals court also ruled that the Supreme Court precedent in Cleburne holds that land users alleging discriminatory treatment bear the initial burden of showing they are “similarly situated” to others who are treated differently. Once the complaining party shows it is similarly situated to someone treated differently, a court then determines whether there is a rational basis for different treatment.

While not ruling on the constitutionality of RLUIPA, the 3rd Circuit ruled in Congregation Kol Ami that “local zoning ordinances are subject to a very forgiving standard of review,” because “land use is one of the bastions of local control, largely free of federal intervention.” Nonetheless, the 3rd Circuit also ruled, citing Cleburne, that zoning decisions based on “desire to harm a politically unpopular group” flunk even a low standard of scrutiny.

Abington Township has moved for the 3rd Circuit to rule on the issue of RLUIPA’s constitutionality in the Congregation Kol Ami case. Before Congregation Kol Ami, a lower federal court in the 3rd Circuit declared RLUIPA constitutional in the Freedom Baptist case. The U.S. Justice Department has intervened in the Congregation Kol Ami case, and it remains unresolved.

Any 3rd Circuit ruling on RLUIPA’s land-use law would likely be an interesting one, given the court’s potentially dueling observations about the traditional sovereignty of localities over zoning and about the need for such decisions to be free of irrational prejudice.

The Justice Department’s view
The U.S. Justice Department has defended both the prisoner-rights and land-use portions of RLUIPA from constitutional attack in several cases. Land-use cases in which the Justice Department has supported the constitutionality of RLUIPA include the aforementioned Freedom Baptist and Hale O Kaula Church cases,57 plus Unitarian Universalist Church of Akron v. Fairlawn, Castle Hills First Baptist Church v. Castle Hills, and Konikov v. Orange County. Most of those cases had not reached reported decisions as of this writing.

The Justice Department has argued that RLUIPA provisions requiring officials to give equal treatment to religious and nonreligious institutions, and prohibiting both religious discrimination and religious exclusion, are valid under the 14th Amendment. That amendment gives Congress power to pass laws that make states give their citizens both equal protection and fair procedures to protect rights.58

The Justice Department has argued that local land-use ordinances involve economic activity that affects interstate commerce. Based on that argument, the Justice Department says Congress can forbid discriminatory land-use ordinances under commerce-regulating power. The Justice Department finds support for that proposition in appeals-court decisions upholding the Church Arson Prevention Act and provisions of the Fair Housing Amendments Act, the first of which protects church property via Commerce Clause authority and the second of which regulates the sale and rental of homes via that authority.59 A federal district court cited one of those church-arson cases in the RLUPA case Grace United Methodist Church v. Cheyenne, noting, “The Tenth Circuit has stated that churches and the religious exercises they carry out have a significant impact on interstate commerce.”60

The Justice Department also supports its argument that zoning involves economics by citing language from the Supreme Court’s 1974 decision in Village of Belle Terre v. Boraas, in which the Court held, “A zoning ordinance usually has an impact on the value of the property which it regulates.”61 That pre-RLUIPA case upheld the validity of a zoning ordinance that prevented a half-dozen college students from living together in a home zoned as a single-family residence. The Court upheld the ordinance under both economic and aesthetic justifications, thus potentially placing zoning within the economic activities Congress has some power to regulate.

According to the Justice Department, land-use ordinances are neither neutral nor generally applicable laws, and thus fall into the aforementioned exception to Oregon v. Smith, the Native American peyote case. Land-use ordinances involve individualized assessments of specific plots of land, and governments enforce those ordinances by deciding how specific persons or entities can use each plot. The Justice Department thus argued that RLUIPA thus codifies Supreme Court precedents in Smith, Hialeah, Sherbert and Thomas that bar government officials from discriminating against religious adherents when those officials have legal discretion to make individualized assessments of rights.62

Proving discrimination
Of course, RLUIPA’s constitutional status is not the only issue facing congregations and zoning officials litigating RLUIPA issues. Such parties also face the issue of whether their individual cases involve facts likely to produce a win or loss under the law. Although RLUIPA has been upheld as constitutional by most courts ruling on the issue, and in spite of Elsinore’s concern that the law puts an insurmountable restriction on zoning officials, religious groups asserting RLUIPA claims do not automatically win.

For example, in June 2003 a federal jury ruled in the Wyoming case of Grace United Methodist Church v. Cheyenne that the city of Cheyenne did not violate a church’s religious rights by refusing to grant it a variance to add a child-care center in a residential area. That case is believed to be one of the first in which a jury decided a RLUIPA controversy.

In both C.L.U.B. v. Chicago and Vineyard Christian Fellowship v. Evanston, courts ruled that governments may non-prejudicially restrict churches to the extent that similarly situated institutions are restricted, and that some governments may escape liability under RLUIPA by merely amending laws.

Some contentious RLUIPA land-use cases have ended in settlements. In February 2003, the case of Cottonwood Christian Center v. Cypress63 resulted in an agreement for a city and religious group to swap parcels of land in a redevelopment zone, so that the religious group could build a church and the city could bring in a new Costco warehouse store. The settlement followed a federal district court ruling that barred a California city from seizing the religious group’s land, via eminent domain, for Costco’s use.

In June 2003, the city of Huntsville, Ala., settled a two-year dispute with Temple B’Nai Sholom over a home in the city’s historic district that synagogue members owned and wanted to demolish to expand their worship center. In the settlement, the city agreed to buy the historic home, using a $25,000 federal grant, and to move that home to another location, making room for the synagogue’s expansion.

Government authorities are compelled by the Constitution to protect the religious liberty rights of all citizens. This is especially true in instances where discrimination arise. Most religious groups also have traditions and beliefs requiring them to act as good neighbors. Such agreements show that governments and religious groups, when motivated, can cooperate to solve land-use problems in creative ways that meet the interests of all parties.

Singling out groups for harmful treatment because of their beliefs or because of their neighbors’ irrational hatred is always unconstitutional, even when the treatment results from a facially neutral law. Governments have a constitutional responsibility to treat all citizens fairly and to give them equal protection, even when RLUIPA does not apply to a situation. And even when certain restrictions on religious groups do not violate freedom of religion under either equal-protection jurisprudence or RLUIPA, governments must still ensure that restrictions do not violate freedom of speech or freedom of assembly.


Since this article was written, the legal landscape has changed with the Supreme Court’s 2005 ruling in
Cutter v. Wilkinson. In a unanimous decision, Justice Ruth Bader Ginsburg (writing for the Court) explained that RLUIPA’s prisoner section does not violate the establishment clause. While Cutter involved a prisoner rights claim, the common language between the prisoner and land-use portions gives pro-RLUIPA advocates much to cheer.

In Cutter, the Court heard arguments from inmates in Ohio’s prison system who practiced non-mainstream religions, including “the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian.” The prisoners claimed they were discriminated against because of their beliefs. They claimed the prison had failed to grant their requested accommodations but they had allowed mainstream prisoners the very same accommodations. The requests included access to religious literature, opportunities to meet for group worship, and a chaplain that could meet their religious requirements. These prisoners claimed that such disparate treatment violated Section 3 of RLUIPA, as well as equal protection and other constitutional protections. By the time the case wended its way through the appeals process, the RLUIPA claim was the only claim left. The Ohio prison system argued that Section 3 of RLUIPA violated the establishment clause because it created an incentive for prisoners to engage in religious conduct to get additional privileges.

Justice Ginsburg set the tone for the opinion by opening her analysis with a quote from Hobbie v. Unemployment Appeals Com. of Florida, “This Court has long recognized that the government may . . . accommodate religious practices . . . without violating the Establishment Clause.” Explaining that there is often some tension between the free-exercise and establishment clauses, she follows the reasoning of the Court’s 2004 school-voucher decision, Zelman v. Simmons-Harris, and allows for “play in the joints” where these two clauses intersect. In this instance, the accommodation provided by Section 3 of RLUIPA provided relief from “exceptional government-created burdens” on the practice of one’s faith. Congress’s diligence in the three years of hearings, the disparate treatment between the prisoner groups and the language of RLUIPA that allows for compelling interests (like prison safety) to override a request seemed to assuage the Court’s concern over the possibility of abuse and the acceptability of this accommodation.

For those who hope to see the Court find Section 2 of RLUIPA (religious land-use portion) constitutional, there is much in this opinion to be excited about. The Court’s reaffirmation of the viability of accommodations in face of establishment-clause challenges — especially in light of the Court’s unanimity in this decision — is telling. Also, many religious groups claim that zoning and other local restrictions are formidable, even “exceptional,” restrictions on the practice of their faith. Given the language of this opinion, it is easy to see where such local government restrictions could be viewed as violating the rights of some religious groups. The Beckett Fund and other pro-RLUIPA groups support this idea that zoning often leaves minority religious groups open to subtle discrimination, thus creating the context for needing these broad protections outside prisons and applying it to subdivisions and local governments.

But those looking to overturn Section 2 of RLUIPA also see some positives in this opinion. For one, the Court avoided the key constitutional question of whether Congress had the authority under the Spending and Commerce clauses to pass this legislation in the first place. There are also major differences between the restrictions on prisoners and the restrictions imposed by zoning boards. As Marci Hamilton, a professor at Cardozo School of Law and long-time critic of RLUIPA, points out, prison restrictions may completely obstruct the prisoner’s ability to practice his faith, while an adverse zoning decision only restricts where a congregation may worship as a group.

Clearly the disagreements over the constitutionality of Section 2 of RLUIPA are not likely to be settled any time soon and may require another Supreme Court decision.

— Update written by religious-liberty attorney John Ferguson.

142 U.S.C. sections 2000cc to 2000cc-5.
2See 146 Congressional Record S. 7774, 7775.
3Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
4City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
5Schad v. Mount Ephraim, 452 U.S. 61 (1981).
6Citing Grayned v. City of Rockford, 408 U.S. 104 (1972); Kovacs v. Cooper, 336 U.S. 77, 85 -87 (1949); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976).
7Islamic Center of Miss., Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988).
8Decisions upholding RLUIPA include Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002), Charles v. Verhagen, 220 F.Supp.2d 955 (W.D. Wis. 2002), later 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). In the case Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002), a federal district court noted that RLUIPA’s land-use protection appeared to be constitutional. In Vineyard Christian Fellowship of Evanston v. Evanston, 250 F. Supp. 2d 961 (2003), the court held that ruling on RLUIPA’s constitutionality was unnecessary, because the case did not fall under the law’s jurisdiction, but the court held that zoning that treated churches different from similarly situated institutions violated the constitutional guarantees of freedom of speech, freedom of assembly and equal protection. In some cases, federal courts have assumed RLUIPA was constitutional when neither side in the case disputed the law’s constitutionality: Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186 (D. Wy. 2002); Marria v. Broaddus, 2003 U.S. Dist. LEXIS 13329 (S.D.N.Y. July 31, 2003). In some other cases, RLUIPA’s applicability, rather than its constitutionality have been at issue: DiLaura v. Ann Arbor Charter Township, 2002 U.S. App. LEXIS 3135 (6th Cir. Feb. 25, 2002); Murphy v. Zoning Comm’n of Town of New Milford, 148 F. Supp. 173 (D. Conn. 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).
9See Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186 (D. Wy. 2002) (observing that no federal appeals court had ruled on the constitutionality of RLUIPA’s land-use protection at the time of the case, but also observing that one lower federal court had previously upheld that protection, that another court had noted that the protection appeared to be constitutional, and finally that government authorities in the Grace Methodist case did not appear to challenge RLUIPA’s constitutionality). As of late September 2003, the clear majority of RLUIPA cases with reported decisions had been over prisoner rights.
10Elsinore Christian Center v. City of Lake Elsinore, 2003 U.S. Dist. LEXIS 11301 (C.D. Cal. June 23, 2003); 2003 U.S. Dist. LEXIS 11491 (C.D. Cal. June 23, 2003).
11Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).
12Charles v. Verhagen, 220 F.Supp.2d 955 (W.D. Wis. 2002), upheld on appeal (7th Cir. Oct. 30, 2003).
13Cutter v. Wilkinson and combined cases, Nos. 97-00382, 98-00275 and 95-00517 (6th Cir. Nov. 7, 2003).
14Freedom Baptist Church v. Middletown, 204 F. Supp. 2d 857 (E.D.Pa. 2002).
15See 146 CONG. REC. 774-01, 776.
16Civil Liberties for Urban Believers (C.L.U.B.) v. City of Chicago, 2003 U.S. App. LEXIS 17046 (7th Cir. August 20, 2003).
17Hernandez v. Commissioner, 490 U.S. 680 (1989).
18Braunfeld v. Brown, 366 U.S. 599 (1961).
19Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303 (6th Cir. 1983).
20See Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001); U.S. v. Meyers, 95 F.3d 1475 (10th Cir. 1996); Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991); Marria v. Broaddus, 200 F. Supp. 280 (S.D. N.Y. 2002).
21Lakewood, 699 F.2d 303; Christian Gospel Church Inc. v. San Francisco, 896 F.2d 1221 (9th Cir. 1990); Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988); Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983).
2242 U.S.C. 1983.
23Hale O Kaula v. Maui Planning Commission, 229 F. Supp. 2d 1056 (D. Haw. 2002). See update: "After long struggle, Hawaiians win permit for chapel."
24Citing Mack v. O’Leary, 80 F.3d 1175 (7th Cir. 1996)(vacated on other grounds).
25Lemon v. Kurtzman, 403 U.S. 602 (1971).
26South Dakota v. Dole, 483 U.S. 203 (1987).
27Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981).
28Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000).
29Tony & Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290 (1985).
30The basic principle that prisoners enjoy few rights was reaffirmed by the Supreme Court in the June 2003 case of Overton v. Bazzetta. Ruling that the "very object of imprisonment is confinement," the court upheld restrictions on inmates’ First Amendment rights (specifically the right of association) when such restrictions "bear a rational relation to legitimate penological interests."
31Compare the text of RLUIPA, note 1, to Renton v. Playtime Theatres Inc., 475 U.S. 41 (1986) (holding, in the First Amendment context, that a city’s "interest in attempting to preserve the quality of urban life is one that must be accorded high respect" and that a law seeming to regulate speech content may actually be treated as if content neutral if the law is aimed at addressing harmful "secondary effects" of the speech on the surrounding community).
32See Renton, 475 U.S. 41 (1986).
33The definitions of "obscenity," and of its components, are found in Miller v. California, 413 U.S. 15 (1973), Jenkins v. Georgia, 418 U.S. 153 (1974), Brockett v. Spokane Arcades, 472 U.S. 491 (1985), Pope v. Illinois, 481 U.S. 497 (1987), and Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
34For the definition of "indecency" and rulings on its regulation, see FCC v. Pacifica Foundation, 438 U.S. 726 (1978), Ginsberg v. New York, 390 U.S. 629 (1968), Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 -75 (1983), Sable Communications of California Inc. v. FCC, 492 U.S. 115 (1989), and Reno v. ACLU, 521 U.S. 844 (1997).
35Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
36R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
37Carey v. Brown, 447 U.S. 455 (1992).
38See Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S. 530 (1980).
39Sherbert v. Verner, 374 U.S. 398 (1963).
40Such beliefs are based on a comparison of Exodus 20:8-11, Matthew 5:17-19 and Mark 16:1-2.
41Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981).
42Cantwell v. Connecticut, 310 U.S. 296 (1940). See also Watchtower Bible & Tract Society of N.Y. v. Village of Stratton, 536 U.S. 150 (2002); Smith, 494 U.S. 872; Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944).
43Wisconsin v. Yoder, 406 U.S. 205 (1972); see also Pierce v. Society of Sisters, 268 U.S. 510 (1925).
44Vineyard Christian Fellowship of Evanston Inc. v. City of Evanston, 250 F. Supp. 2d 961 (N.D. Ill. 2003).
45Church of Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520 (1993).
46See U.S. CONST. amend. XIV, section 5; Sherbert, 374 U.S. 398; Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186 (D. Wy. 2002).
47See Flores, 521 U.S. 507.
48See, e.g., Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999) (collecting cases); Young v. Crystal Evangelical Free Church, 141 F.3d 854 (8th Cir. 1998).
49Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988).
50Citing New York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1 (1988).
51Christ Universal Mission Church v. City of Chicago, 2002 U.S. Dist. LEXIS 22917 (N.D. Ill. Sept. 11, 2002).
52See Love Church v. City of Evanston, 671 F. Supp. 515 (N.D. Ill. 1987), vacated on other grounds, 896 F.2d 1082 (7th Cir. 1990).
53R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). This case overturned a law against all symbolic speech that took the form of a cross burning. The Court has differentiated that improper restriction on speech from proper restrictions on conduct, thus preventing hate groups from using cross burning to incite imminent, unlawful violence or to intentionally intimidate specific people. Virginia v. Black, 123 S. Ct. 1536 (2003); Brandenburg v. Ohio, 395 U.S. 444 (1969).
54Ward v. Rock Against Racism, 491 U.S. 781 (1989). See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), and Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981).
55See an article by Becket Fund attorneys Roman P. Storzer & Anthony R. Picarello, Jr., "The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices," 9 Geo. Mason L. Rev. 929 (2001). Compare an article by opposing Abington Township attorney and law professor Marcia Hamilton, "Federalism and the Public Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act," 78 Ind. L.J. 311 (2003).
56Congregation Kol Ami v. Abington Township, 161 F. Supp. 2d 432 (E.D. Pa. 2001), vacated and remanded, 309 F.3d 120 (3rd Cir. 2002).
57Hale O Kaula, 229 F. Supp. 2d 1056.
58See Cantwell, 310 U.S. 296, which includes First Amendment rights among the rights the 14th Amendment protects from state infringement.
59United States v. Grassie, 237 F.3d 1199 (10th Cir. 2001) (upholding the Church Arson Prevention Act, 18 U.S.C. section 247, from constitutional attack); Groome, 234 F.3d 192.
60Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186 (D. Wy. 2002).
61Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).
62Compare Smith, 494 U.S. 872, to Lukumi Babalu, 508 U.S. 520, Thomas, 450 U.S. 707, Sherbert, 374 U.S. 398 (1963), Keeler v. Mayor & City Council of Cumberland, 940 F.Supp. 879 (D. Md. 1996), Rader v. Johnston, 924 F.Supp. 1540 (D.Neb. 1996), and Alpine Christian Fellowship v. County Comm’rs of Pitkin City, 870 F.Supp. 991 (D.Colo. 1994).
Although the Supreme Court’s jurisprudence on the free exercise of religion often differs from the Court’s jurisprudence on free speech, a rational parallel might be drawn between certain individualized assessments of religious conduct and improper exercises of discretion under vague or overly broad restrictions of free speech. See Grayned, 408 U.S. 104 (noting that "vague laws may trap the innocent by not providing fair warning" and that "if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them"). But compare Ward v. Rock Against Racism, 491 U.S. 781(1989) (holding, "Perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity").

63See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002), which was later followed by settlement.


Muslim group sues N.J. town over effort to build mosque

Federal lawsuit alleges religious discrimination after decision to seize land for open space. 07.19.06

9th Circuit: Calif. county must allow Sikh temple
Panel upholds lower court decision that officials violated RLUIPA by denying congregation's request to build temple on land zoned for agriculture. 08.05.06

N.Y. village can't block Jewish school's expansion, 2nd Circuit says
Three-judge panel upholds lower court decision that Mamaroneck violated RLUIPA by denying Westchester Day School permit to expand its facilities. 10.18.07

9th Circuit revives inmate's RLUIPA suit
By Josh Tatum Unanimous three-judge panel reinstates Darin Greene's claim that California prison violated his rights by barring group worship by maximum-security prisoners. 04.16.08

Ariz. church sues city after zoning permit denied
Lawsuit: Yuma is discriminating by enforcing zoning code that allows membership groups, theaters to locate in historic district while excluding religious groups. 06.09.08

Md. town accused of discriminating against Muslim group
Developer who planned to sell 224 acres to religious community files federal lawsuit claiming Walkersville officials violated First Amendment by barring mosque on farmland. 07.08.08

Calif. city, Buddhists settle zoning fight
Agreement, which ends two-year legal dispute, will allow congregation to move forward with plans to build temple in Garden Grove. 09.19.08

Religious Freedom Restoration Act analysis
By Greg Groninger Analysis of U.S. Supreme Court's ruling in City of Boerne v. Flores, which struck down RFRA. 11.16.04

RLUIPA, religious buildings & zoning

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