Editor’s note: This article was written in 2003. See
update below on U.S. Supreme Court’s 2005 ruling in Cutter v.
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
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
- Not totally exclude religious assemblies from a jurisdiction.
- Give religious and nonreligious institutions equal treatment in land-use
- 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
“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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Other church protections: Freedoms of speech and assembly
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
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
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
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
- 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
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
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
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
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
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
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
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
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
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
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
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
— Update written by religious-liberty attorney John
U.S.C. sections 2000cc to 2000cc-5.
2See 146 Congressional Record S. 7774,
v. Ambler Realty Co., 272 U.S. 365 (1926).
of Cleburne v. Cleburne Living Center, 473 U.S. 432
v. Mount Ephraim, 452 U.S. 61 (1981).
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
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.
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
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,
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).
v. Wilkinson and combined cases, Nos. 97-00382, 98-00275 and 95-00517
(6th Cir. Nov. 7, 2003).
Baptist Church v. Middletown, 204 F. Supp. 2d 857 (E.D.Pa.
15See 146 CONG. REC. 774-01,
Liberties for Urban Believers (C.L.U.B.) v. City of Chicago, 2003 U.S.
App. LEXIS 17046 (7th Cir. August 20, 2003).
v. Commissioner, 490 U.S. 680 (1989).
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.
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.
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."
v. O’Leary, 80 F.3d 1175 (7th Cir. 1996)(vacated on other
v. Kurtzman, 403 U.S. 602 (1971).
Dakota v. Dole, 483 U.S. 203 (1987).
State School and Hospital v. Halderman, 451 U.S. 1
Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir.
& Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290
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
Renton, 475 U.S. 41 (1986).
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
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).
Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872
v. City of St. Paul, 505 U.S. 377 (1992).
v. Brown, 447 U.S. 455 (1992).
Edison Co. v. Public Serv. Comm’n, 447 U.S. 530
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.
v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707
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).
v. Yoder, 406 U.S. 205 (1972); see also Pierce
v. Society of Sisters, 268 U.S. 510 (1925).
Fellowship of Evanston Inc. v. City of Evanston, 250 F. Supp. 2d 961
(N.D. Ill. 2003).
of Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520
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.
49Messiah Baptist Church
v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988).
York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1
Mission Church v. City of Chicago, 2002 U.S. Dist. LEXIS 22917 (N.D. Ill.
Sept. 11, 2002).
Church v. City of Evanston, 671 F. Supp. 515 (N.D. Ill. 1987), vacated on
other grounds, 896 F.2d 1082 (7th Cir. 1990).
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.
v. Black, 123 S. Ct. 1536 (2003); Brandenburg
v. Ohio, 395 U.S. 444 (1969).
v. Rock Against Racism, 491 U.S. 781 (1989). See Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), and
v. International Society for Krishna Consciousness, Inc., 452 U.S. 640,
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
57Hale O Kaula,
229 F. Supp. 2d 1056.
Cantwell, 310 U.S. 296, which includes First Amendment rights among the
rights the 14th Amendment protects from state infringement.
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).
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").
Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.
Supp. 2d 1203 (C.D. Cal. 2002), which was later followed by settlement.