Notes on the Religious Land Use and
Institutionalized Persons Act (RLUIPA)
by
Michael S. Giaimo, Esq.
Robinson & Cole LLP, One Boston Place, Boston, MA 02108
(617)557-5959 mgiaimo@rc.com
A.
B.
FREE EXERCISE CLAUSE PRELUDE TO RLUIPA
1.
Sherbert v. Verner, 374 U.S. 398 (1963). Established heightened
scrutiny of state legislative actions that impose a burden on the free
exercise of appellant’s religion.
2.
Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872 (1990) (“Smith II”). No Free Exercise bar to
application of generally applicable law that is not specifically directed
to religious practice, even if it places incidental burdens on religious
practice.
3.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialea, 508 U.S.
520(1993). Strict scrutiny applies to review of ordinance that is not
neutral and of general application, but rather was addressed at the
practices of a particular religion.
RELIGIOUS FREEDOM RESTORATION ACT – PRECURSOR TO
RLUIPA
C.
1.
Passed 1993 in response to Smith II with the intent of restoring the
“compelling interest” test of Sherbert.
2.
City of Bourne v. Flores, 521 U.S. 507 (1997) Court declares
Religious Freedom Restoration Act unconstitutional as exceeding
Congressional power to legislate under the enforcement clause of the
Fourteenth Amendment to the Constitution.
RELIGIOUS LAND USE AND INSTITUTIONALIZED
PERSONS ACT
1.
Background on RLUIPA
a.
Enacted September 22, 2000 in response to Bourne decision
after several interim attempts to pass broader legislation.
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b.
2.
Tailored to address Court’s concerns in Bourne:
i.
narrower scope – specific mention of land use regulation;
ii.
“better” legislative record.
Summary of RLUIPA
No government shall impose or implement a land use regulation in a
manner that imposes a substantial burden on the religious exercise of a
person, including a religious assembly or institution unless
government demonstrates that the burden is in furtherance of a
compelling governmental interest; and is the least restrictive means of
furthering that compelling governmental interest.
3.
Definition of terms:
a.
"Land use regulation”
i.
A zoning or landmarking law that limits claimants use or
development of land.
Within scope: Hale O Kaula Church v. Maui Planning
Commission, 229 F.Supp.2d 1056 (D. Hi. 2002)
(Hawaii’s statutory land classification scheme).
Not within scope: Prater v. Burnside, 289 F.3d 417 (6th
Cir. 2002). (City development of road dividing churchowned property);
ii.
b.
Claimant holds a property interest or a contract or option
to acquire such an interest.
“Religious Exercise”
i.
Any exercise of religion, whether or not compelled by or
central to a system of religious belief.
ii.
The use, building or conversion of real property for the
purpose of religious exercise.
Cottonwood Christian Center v. Cypress Redevelopment
Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002)(Construction of a
church); Murphy v. Zoning Commission of the Town of New
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Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) (Prayer groups at
a private home) DiLaura v. Ann Arbor Charter Township 30
Fed.Appx. 501 (6th Cir. 2002) (Use of private home for
retreats); Grace United Methodist Church v. City of Cheyenne,
235 F. Supp. 2d 1186 (D. Wyoming 2002) (Genuine question of
fact as to whether operation of day care center with a religious
component is a religious exercise within meaning of RLUIPA);
Westchester Day School v. Village of Mamaronek, 250 F. Supp.
2d 230 (SDNY 2003)(day school with a religious mission)
Shepherd Montessori Center Milan v. Ann Arbor Charter
Township, 259 Mich. App. 315 (2003)(faith based primary
school).
c.
“Substantial Burden”
i.
Not defined in the Act
ii.
“It is not the intent of this Act to create a new standard
for the definition of ‘substantial burden’ on religious
exercise”.
iii.
No broader than the Supreme Court’s application of the
concept. Plaintiff bears burden of persuasion as to
substantial burden on religious exercise.
Substantial burden found: Murphy v. Zoning Commission of the
Town of New Milford, 148 F. Supp. 2d 173 (D. Conn. 2001)
(Limit on number of prayer group attendees); Cottonwood
Christian Center v. Cypress Redevelopment Agency, 218
F.Supp.2d 1203 (C.D. Cal. 2002) (Congregation prevented from
building a house of worship); Elsinore Christian Center v. City
of Lake Elsinore, 2003 U.S. Dist. LEXIS 24058,
(C.D.Cal., Aug. 21, 2003)(Denial of conditional use permit for
church); Westchester Day School v. Village of Mamaronek, 250
F. Supp. 2d 230 (SDNY 2003)(school denied special permit for
expansion); Castle Hills First Baptist Church v. City of Castle
Hills, 2004 WL 546792 (W.D. Tex. 2004) (Refusal to consider
special use permit application for expansion of religious school
into vacant floor in existing religious school building).
Substantial burden not found: Midrash Sephardi, Inc. v. Town of
Surfside 2004 U.S. App. LEXIS 7706 (11th Cir. April 21, 2004)
(limiting synagogue to particular and less convenient district and
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requiring a conditional use permit); San Jose Christian College
v. Morgan Hill ___ F.3d ___ (9th Cir. 2004) (requirement that
religious entity submit a complete zoning application and
comply with environmental review statute); Civil Liberties for
Urban Believers v. City of Chicago, 342 F. 3d 752 (7th Cir.
2003) (Zoning processes and attendant difficulties associated
with obtaining approval for church); San Jose Christian College
v. City of Morgan Hill, 2002 U.S. Dist LEXIS 4517 (N.D. Cal,
2002) (refusal to rezone for religious use); Omnipoint
Communications v. City of White Plains, 202 F.R.D. 402 (S.D.
N.Y. 2001) (Allowing abutter to build cell tower within view of
synagogue window); Grace United Methodist Church v. City of
Cheyenne, 235 F. Supp. 2d 1186 (D. Wyoming 2002) (Material
question of fact exists, where day care center could be operated
in other districts); Vineyard Christian Fellowship of Evanston,
Inc., v. City of Evanston, 250 F. Supp. 2d 961 (N. Dist. Ill. 2003)
(Denial of rezoning resulting in additional cost and difficulty to
congregation); North Pacific Union Conference Association of
The Seventh-Day Adventists v. Clark County, 2003 Wash. App.
LEXIS 1778 August 12, 2003) (Denial of conditional use
resulting in loss of highly visible and convenient location for
church); Petra Presbyterian Church v. Village of Northbrook,
2003 U.S. Dist. LEXIS 15105 (N.D. Ill. August 28, 2003)
(Denial of permit to locate in industrial zone where other areas
were available to locate church and it continued to operate);
Konikov v. Orange County, 302 F. Supp. 2d 1328 (M.D. Fla.
2004) (Enforcement of zoning to prevent home worship in a
residential subdivision); Shepherd Montessori Center Milan v.
Ann Arbor Charter Township, 259 Mich. App. 315
(2003)(Material questions of fact remain, including whether
there are alternative locations available that are suitable for the
proposed primary school); Castle Hills First Baptist Church v.
City of Castle Hills, 2004 WL 546792 (W.D. Tex. 2004)(Denial
of special use permit for expanded parking where existing
parking was sufficient for size of existing church); Sts
Constantine and Helen Greek Orthodox Church, Inc. v. City of
New Berlin, U.S. Dist. Ct E.D. Wisc. #2:02-cv-00630-JPS
(3/26/04)(Denial of rezoning where there were other areas
available to locate church and even other potential ways to
permit church on subject property).
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d.
“Compelling Governmental Interest”
Compelling interest found or assumed: Murphy v. Zoning
Commission of the Town of New Milford, 148 F. Supp. 2d 173
(D. Conn. 2001) (Protecting public health and safety through
zoning regulations); Cottonwood Christian Center v. Cypress
Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002)
(Economic development and tax base); Elsinore Christian
Center v. City of Lake Elsinore, --- F.Supp.2d ----, 2003 WL
21543995, C.D.Cal., Jun 24, 2003 (Preventing urban blight);
Konikov v. Orange County, 2004 WL 213179 (M.D. Fla. 2004)
(Zoning).
Compelling interest not found: Elsinore Christian Center v. City
of Lake Elsinore, --- F.Supp.2d ----, 2003 WL
21543995, C.D.Cal., Jun 24, 2003 (Parking difficulties, tax
base); Westchester Day School v. Village of Mamaronek, 250 F.
Supp. 2d 230 (SDNY 2003)(traffic, parking); Castle Hills First
Baptist Church v. City of Castle Hills, 2004 WL 546792 (W.D.
Tex. 2004) (preventing “invasion of privacy” of surrounding
residential neighborhood).
e.
“Least Restrictive Means”
Not Least Restrictive: Murphy v. Zoning Commission of the
Town of New Milford, 148 F. Supp. 2d 173 (D. Conn. 2001),
(Overly broad and counterproductive enforcement order of local
building official); Elsinore Christian Center v. City of Lake
Elsinore, 2003 U.S. Dist. LEXIS 24058, (C.D.Cal., Aug. 21,
2003). (No showing that denial of conditional use permit will
result in retention of grocery store use thought necessary to
prevent urban blight).
Least Restrictive: Konikov v. Orange County, 2004 WL 213179
(M.D. Fla. 2004) (Order requiring that plaintiff cease operating
without a special exception, and imposing fines for continued
non-compliance).
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f.
Government may avoid Act’s preemptive force by changing the
policy or practice that imposes the substantial burden, or by
creating exemptions that eliminate the substantial burden.
C.L.U.B. v. City of Chicago, 157 F. Supp 2d 903 (N.D. Ill. 2001)
aff’d Civil Liberties for Urban Believers v. City of Chicago, 342
F. 3d 752 (7th Cir. 2003) (RLUIPA count dismissed after
ordinance amended to eliminate burden on religion).
4.
Scope of “substantial burden” rule
a.
Burden imposed in program or activity that receives federal
financial assistance
b.
Burden affects or removal would affect interstate or foreign
commerce.
DiLaura v. Ann Arbor Charter Township, 30 Fed.Appx. 501 (6th
Cir. 2002) (Interstate commerce basis satisfied where guests of
proposed retreat house could travel from other states.);
Cottonwood Christian Center v. Cypress Redevelopment
Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002) (Construction
project affects interstate commerce. Church will have televised
ministry and host conferences involving out of state
participation); Freedom Baptist Church of Delaware County v.
Township of Middletown, 204 F.Supp.2d 857 (E.D. Pa. 2002)
(Rental of property and use and development of land affects
interstate commerce); Elsinore Christian Center v. City of Lake
Elsinore, 2003 U.S. Dist. LEXIS 24058, (C.D.Cal., Aug. 21,
2003)(Permit denial in the context of a commercial real estate
transaction); Westchester Day School v. Village of Mamaronek,
250 F. Supp. 2d 230 (SDNY 2003)(operating an Orthodox
Jewish day school).
c.
Burden imposed in land use regulation or system of regulations
under which government makes individualized assessments of
property uses.
Midrash Sephardi, Inc. v. Town of Surfside 2004 U.S. App.
LEXIS 7706 (11th Cir. April 21, 2004)(conditional use permit);
Cottonwood Christian Center v. Cypress Redevelopment
Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002) (Conditional use
permit); Elsinore Christian Center v. City of Lake Elsinore,
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2003 U.S. Dist. LEXIS 24058, (C.D.Cal., Aug. 21, 2003)
(Conditional use permit); DiLaura v. Ann Arbor Charter
Township, 30 Fed.Appx. 501 (6th Cir. 2002). (Variance request)
Vineyard Christian Fellowship of Evanston, Inc., v. City of
Evanston, 250 F. Supp. 2d 961 (N. Dist. Ill. 2003) (Zoning
amendment request); Shepherd Montessori Center Milan v. Ann
Arbor Charter Township, 259 Mich. App. 315 (2003) (variance
request).
d.
Discrimination and Exclusion Provisions
i.
Treat religious and non-religious on equal terms
ii.
No discrimination on the basis of religion or religious
denomination
iii.
Can’t completely exclude religious assemblies from a
jurisdiction
iv.
Can’t unreasonably limit religious assemblies,
institutions or structures within a jurisdiction.
Requirements satisfied: San Jose Christian College v. Morgan
Hill 360 F.3d 1024 (9th Cir. 2004)(no evidence that religiously
affiliated college would be precluded from using sites in the city
other than the one it was refused rezoning on, and no evidence
that City would have treated request for rezoning by nonreligious entity differently); Civil Liberties for Urban Believers
v. City of Chicago, 342 F. 3d 752 (7th Cir. 2003) (Religious and
non-religious assembly treated the same); Ventura County
Christian High School v. City of San Buenaventura, 233
F.Supp.2d 1241 (C.D. Cal. 2002). (Church was held to same
standards as eight of ten other private applicants); Konikov v.
Orange County, 2004 WL 213179 (M.D. Fla. 2004)(Zoning
scheme does not permit any place of assembly by right in a
residential zone, whether religious or non-religious); Petra
Presbyterian Church v. Village of Northbrook, 2003 U.S. Dist.
LEXIS 15105 (N.D. Ill. August 28, 2003) (religious and nonreligious assembly treated the same; religious institutions
allowed by right or special permit in 70% of the jurisdiction);
Constantine and Helen Greek Orthodox Church, Inc. v. City of
New Berlin, U.S. Dist. Ct E.D. Wisc. #2:02-cv-00630-JPS
8
(3/26/04)(city has not totally excluded religious assemblies and
plaintiffs not unreasonably limited in ability to find property
within the city to accommodate their needs).
Requirement not satisfied: Midrash Sephardi, Inc. v. Town of
Surfside 2004 U.S. App. LEXIS 7706 (11th Cir. April 21,
2004)(equal terms provision violated where assemblies allowed
in zoning district include social clubs, lodges, and theaters but
churches are prohibited); Christ Universal Mission Church v.
City of Chicago, 2002 U.S. Dist. LEXIS 22917 (September 11,
2002) (rev’d on other grounds, 362 F.3d. 423)(Churches
excluded from district that allows community centers).
5.
Challenges to RLUIPA
a.
Grounds for Challenge
i.
Beyond Congressional Authority
a.
Commerce Clause
Constitutional: Freedom Baptist Church of
Delaware County v. Township of Middletown,
204 F.Supp.2d 857 (E.D. Pa. 2002); Christ
Universal Mission Church v. City of Chicago,
2002 U.S. Dist. LEXIS 22917 (September 11,
2002); Hale O Kaula Church v. Maui Planning
Comm’n 229 F.Supp. 2d 1056 (D. Haw. 2002);
Live Teen Inc. v. Yavapai County, 2003 U.S. Dist.
LEXIS 24363 (D. Az, March 26, 2003);
Westchester Day School v. Village of
Mamaronek, 250 F. Supp. 2d 230 (SDNY 2003);
Murphy v. Zoning Com’n of Town of New
Milford, 289 F. Supp. 2d 87 (D. Conn. 2003);
Castle Hills First Baptist Church v. City of Castle
Hills, 2004 WL 546792 (W.D. Tex. 2004).
Unconstitutional: Elsinore Christian Center v.
City of Lake Elsinore, 2003 U.S. Dist. LEXIS
24058, (C.D.Cal., Aug. 21, 2003).
b.
Spending Clause
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Constitutional, San Jose Christian College v.
Morgan Hill ___ F.3d ___ (9th Cir. 2004) citing
Mayweathers v. Newland, 314 F. 3d 1062 (9th Cir.
2002) cert. den. 124 S. Ct. 66 (2003).
c.
Enforcement Clause
Constitutional: Midrash Sephardi, Inc. v. Town of
Surfside 2004 U.S. App. LEXIS 7706 (11th Cir.
April 21, 2004). Freedom Baptist Church of
Delaware County v. Township of Middletown,
204 F.Supp.2d 857 (E.D. Pa. 2002); Christ
Universal Mission Church v. City of Chicago,
2002 U.S. Dist. LEXIS 22917 (September 11,
2002); Murphy v. Zoning Comm’n of the Town of
New Milford, 289 F. Supp 2d 87 (D. Conn. Sept.
30, 2003); United States of America v. Maui
County, 2003 U.S. Dist. LEXIS 23735 (D. Haw.
2003); Live Teen Inc. v. Yavapai County, 2003
U.S. Dist. LEXIS 24363 (D. Az, March 26,
2003); Westchester Day School v. Village of
Mamaronek, 250 F. Supp. 2d 230 (S.D.N.Y.
2003); Castle Hills First Baptist Church v. City of
Castle Hills, 2004 WL 546792 (W.D. Tex. 2004).
Unconstitutional: Elsinore Christian Center v.
City of Lake Elsinore, 2003 U.S. Dist. LEXIS
24058, (C.D.Cal., Aug. 21, 2003).
d.
Separation of Powers
Constitutional: Live Teen Inc. v. Yavapai
County, 2003 U.S. Dist. LEXIS 24363 (D. Az,
March 26, 2003); Castle Hills First Baptist
Church v. City of Castle Hills, 2004 WL 546792
(W.D. Tex. 2004).
ii.
Violates Establishment Clause
Constitutional: Midrash Sephardi, Inc. v. Town of
Surfside 2004 U.S. App. LEXIS 7706 (11th Cir.
April 21, 2004); Freedom Baptist Church of
Delaware County v. Township of Middletown,
10
204 F.Supp.2d 857 (E.D. Pa. 2002); Christ
Universal Mission Church v. City of Chicago,
2002 U.S. Dist. LEXIS 22917 (September 11,
2002); United States of America v. Maui County,
2003 U.S. Dist. LEXIS 23735 (D. Haw. 2003);
Live Teen Inc. v. Yavapai County, 2003 U.S. Dist.
LEXIS 24363 (D. Az, March 26, 2003); Murphy
v. Zoning Com’n of Town of New Milford, 289 F.
Supp. 2d 87 (D. Conn. 2003); Westchester Day
School v. Village of Mamaronek, 250 F. Supp. 2d
230 (S.D.N.Y. 2003); Castle Hills First Baptist
Church v. City of Castle Hills, 2004 WL 546792
(W.D. Tex. 2004). See Madison v. Riter, 2003
WL 22883620 (4th Cir, Dec. 8, 2003) (prisoner
case); Charles v. Verhagen 348 F.3d 601 (7th Cir.
2003)(prisoner case); Mayweathers v. Newland,
314 F.3d 1062, (9th Cir. 2002) cert. denied, 124
S. Ct. 66 (2003) (prisoner case).
Unconstitutional: Cutter v. Wilkinson 349 F. 3d
257 (6th Cir. 2003) (prisoner case).
iii.
Offends Federalism Principles
a.
10th Amendment
Constitutional: Midrash Sephardi, Inc. v. Town of
Surfside 2004 U.S. App. LEXIS 7706 (11th Cir.
April 21, 2004); United States of America v. Maui
County, 2003 U.S. Dist. LEXIS 23735 (D. Haw.
2003); Live Teen Inc. v. Yavapai County, 2003
U.S. Dist. LEXIS 24363 (D. Az, March 26,
2003); Westchester Day School v. Village of
Mamaronek, 250 F. Supp. 2d 230 (S.D.N.Y.
2003); Castle Hills First Baptist Church v. City of
Castle Hills, 2004 WL 546792 (W.D. Tex. 2004).
May 18, 2004
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