On July 27, 2000, both the Senate and the House passed the Religious Land Use and Institutionalized Persons Act of 2000, and President Clinton signed the measure into law on September 22. This law, often known as RLUIPA (pronounced ar-LOOP-uh), provides protection for a right that is foundational in our country: the right to worship. As its name indicates, RLUIPA addresses two areas that currently are the sources of the most numerous and pervasive problems under the free exercise clause of the Constitution.
In a series of Congressional hearings beginning in 1997, it became clear that local zoning authorities often use their power in ways that seriously burden and sometimes discriminate against religious bodies. In Los Angeles, for example, a city council unanimously rejected an Orthodox Jewish congregation’s request for a special-use permit to meet for prayer in a neighborhood home, thus making the neighborhood effectively off-limits for Orthodox Jews. The Congregation Etz Chaim, an Orthodox Jewish congregation in Los Angeles, was meeting in a rented house, in Hancock Park, a residential zone. The rabbi of the congregation, Chaim Baruch Rubin, testified that 10 to 15 men would typically visit the house for daily meetings, and 40 or 50 people (many elderly and disabled) would attend on the Sabbath or holidays to engage in quiet prayer and study. Because their religion does not permit them to use any mechanized modes of transportation on the Sabbath and other religious holidays, Orthodox Jews must walk to services.
When neighbors complained about the arrangement in terms of its alleged effect on property values, the congregation requested a special-use permit from the Los Angeles City Council to remain in the residential zone. The council unanimously rejected the congregation’s request for a special-use permit. The same council, however, allowed others to assemble in Hancock Park, including schools, group book clubs, recreational users, and embassy social groups. Indeed, Rabbi Rubin testified that 84,000 cars traveled through this part of the neighborhood daily, and yet the council deemed a prayer meeting of a few who traveled by foot as harmful to the neighborhood.
Rabbi Rubin concluded his testimony by stating, “What do I tell my congregants? What do I tell an 84-year-old survivor of Auschwitz, a man who used to risk his life in the concentration camp whenever possible to gather together a minyan to pray.”1
In the Chicago area, His Word Ministries to All Nations, like many other congregations, also received a hostile reception from local zoning powers. Twenty-two of the 29 zoning codes in the northern suburbs of Chicago effectively exclude churches except on special-use permit, meaning that zoning authorities hold almost wholly discretionary power over whether a house of worship may locate in these areas. His Word became interested in buying property after it outgrew its space in the basement of a home. When it sought a special-use permit in 1992, an alderman delayed the request three times, resulting in months of delay in the purchase of the building. After the third postponement of the hearing, the alderman had the church’s property rezoned as a manufacturing district, a zone that does not permit churches at all. The church was forced to withdraw its application for special use after paying filing, attorney, and appraiser fees, and wasting an entire year seeking the special-use permit.2
Houses of worship also have faced other problems, such as municipalities’ efforts to shut down church-run homeless feeding programs. In 1997 the city of Richmond passed an ordinance that required places of worship wishing to feed more than 30 hungry and homeless people to apply for a conditional-use permit at a cost of $1,000, plus $100 per acre of affected property. The ordinance regulated only places of worship (not other institutions) and only eating by persons who are hungry and homeless (not banquets and parties). The ordinance also limited to seven days and to the period between October 1 and April 1 the times when places of worship may feed the hungry and homeless. The city had complete discretion over the granting of a conditional-use permit based on its assessment of a number of subjective factors. The Rev. Patrick Wilson of Richmond, Virginia, noted in his testimony: A $1,000 fee is beyond the means of most churches, which operate with memberships of less than 100 persons and is therefore prohibitive. Imagine that, a statutorily imposed fee for the exercise of a basic and fundamental tenet of the Christian faith! Health and safety issues can and are addressed in odious ways.3
Not only is there anecdotal evidence of this free exercise problem. A study has revealed that there is a pattern of disparate treatment of minority faiths in zoning cases. The study’s pattern suggests that discrimination often lurks behind the application of so-called “generally applicable, neutral” laws such as zoning ordinances.4
RLUIPA addresses these problems by providing critical protection for churches and other religious assemblies from restrictive land use regulation that all too often thwarts the practice of faith. It generally ensures that zoning boards can’t burden religious practice in a substantial way without a compelling reason for doing so. It also prohibits various forms of discrimination against religious institutions in land use matters. To be more specific, RLUIPA ensures that the government may not treat religious assemblies and institutions on less than equal terms with a nonreligious assembly, discriminate against any institution on the basis of religion, totally exclude religious assemblies from a jurisdiction, or unreasonably limit such uses within a jurisdiction.
So the next time a zoning board gives a church the runaround when it is simply trying to buy a piece of property or get a variance to use property for religious purposes, the church can do more than simply beg and plead. Now it has a way to force the government to the bargaining table, and then to court if necessary. RLUIPA’s passage means that, if neighborhoods permit home book clubs, they should not stand in the way of home Bible studies. It means that cities can’t suddenly decide that increased traffic justifies barring churches from meeting in rented storefronts, schools, and theaters when those same places generate plenty of traffic for secular purposes. And RLUIPA will mean that the next time the powers-that-be decide that there just isn’t room for a new house of worship because there are already enough churches in town, their judgment won’t go unchecked.
It is important to note, however, that RLUIPA does not provide a religious assembly with immunity from zoning regulation, as its legislative history specifically notes. The compelling interest test, for example, is not a blank check for religion. If the religious claimant cannot demonstrate that the regulation places a substantial burden on sincere religious exercise, then the claim fails without further consideration. If the claimant is successful in demonstrating a substantial burden, the government will still prevail if it can show that the burden is the unavoidable result of its pursuit of a compelling governmental objective.
RLUIPA also provides a remedy for institutionalized persons who are inappropriately denied the right to practice their faith, including those in state residential facilities (such as homes for the disabled and chronically ill) and correctional facilities. Congressional testimony included descriptions of instances in which a Catholic priest was forced to do battle over bringing a small amount of sacramental wine into prisons, and a case in which prison officials not only refused to purchase matzo (the unleavened bread Jews are required to eat on Passover), but refused to accept even donated matzo from a Jewish organization.
RLUIPA states that the government may not impose a substantial burden on the religious exercise of an institutionalized person unless that burden is justified by a compelling interest that is furthered by the least restrictive means. It is clear that this standard is applied in a special way in prisons. This provision does not require prison officials to grant religious requests that would undermine prison discipline, order, and security. The standard set forth in RLUIPA has been employed by the Federal Bureau of Prisons for many years without negative impact on prison discipline, order, and security. Moreover, RLUIPA states on its face that it does not amend or repeal the Prison Litigation Reform Act of 1995. Thus, the courts will continue to be able to reject frivolous lawsuits with ease.
Also, it should be emphasized that in its framing of RLUIPA, Congress was quite mindful of the Supreme Court’s interpretation of the constitutional power of the federal legislative branch. Legislators ensured that RLUIPA’s use of interstate commerce, spending, and Fourteenth Amendment powers closely complied with recent precedent in these areas. Although constitutional challenges will be brought, they should be rejected.
A remarkable coalition helped to ensure that RLUIPA became law. This coalition included groups as different as the American Civil Liberties Union and the Christian Legal Society, Americans United for Separation of Church and State and the Family Research Council, People for the American Way and the National Association for Evangelicals. While these groups disagree on many issues, they agree that the fundamental right of individuals and institutions to the free exercise of religion should be protected—as RLUIPA does.
For those who care about the free exercise of religion, RLUIPA represents an important accomplishment. It does not, however, mean that there is no further work to be done to ensure that the free exercise rights of all Americans are respected. Unfortunately, in a 1990 decision, the Supreme Court dramatically and abruptly reduced the constitutional protection given to the free exercise of religion across the board. So more work is needed to address other free exercise problems. Indeed, it is the fondest hope of free exercise advocates that the Supreme Court will soon reverse its 1990 judgment and once again provide free exercise with the heightened constitutional protection our first freedom deserves. Until that day, RLUIPA and other measures will stand in the breach.
Melissa Rogers is executive director of the Pew Forum on Religion and Public Life, base in Washington D.C.
Footnotes
1 Testimony of Rabbi Chaim Baruch Rubin before the House Subcommittee on the Constitution, Feb. 26, 1998.
2 Testimony of John Mauck before the House Subcommittee on the Constitution, Mar. 26, 1998; affidavit of Virginia Kantor in Civil Liberties for Urban Believers v. City of Chicago (N.D. Ill. 1994); testimony of Douglas Laycock before the House Subcommittee on the Constitution, July 14, 1998.
3 Testimony of Rev. Patrick J. Wilson III before the House Subcommittee on the Constitution, February 26, 1998; preliminary and jurisdictional statement in Trinity Baptist Church v. City of Richmond (E.D. Va. filed Aug. 20, 1997).
4 Testimony of Von Keetch before the House Subcommittee on the Constitution.
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