Introduction

December Holiday Guidelines

The Faith-Based Initiative

Intelligent Design

Religious Accommodation
in the Workplace


School Vouchers

The Ten Commandments Controversy

Religion in the
Public Schools


Federal Laws Against Religious Discrimination and Violence

The Right to Build a Religious Facility


The Right to Build a Religious Facility
Rights And Obligations Under The Religious Land Use and Institutionalized Persons Act (RLUIPA)
Religion In America’s Public Square: Crossing the Line?
by Abraham H. Foxman

Introduction

Congregations that wish to build religious institutions or make improvements to their existing facilities are granted several important rights under the law.   Both the leaders of religious institutions and members of town planning, zoning and other similar boards can benefit from knowing about these rights. 

What is the Religious Land Use and Institutionalized Persons Act (RLUIPA)?
  
Fundamental to the right of worship is the right to have the facilities necessary for religious worship and gathering.   Unfortunately, beyond normal zoning and land use approval processes, discriminatory roadblocks to building or improving these facilities has been an historic reality in America.   In 2000, Congress unanimously passed RLUIPA – the Religious Land Use and Institutionalized Persons Act, (RLUIPA) 42 U.S.C. §§ 2000cc, et seq  – to address this problem directly.

RLUIPA itself provides that "[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden" is the least restrictive means of advancing a compelling governmental interest.  42 U.S.C. § 2000cc(a)(1).

More simply, RLUIPA says that a government (a city or state) cannot deny a house of worship the necessary permits or variances to build unless the government first shows that it had a compelling reason to deny the permit.   To support a RLUIPA claim, a house of worship would need to demonstrate that the denial of permission to build was a “substantial burden” on the house of worship’s “religious exercise.” 

What is “religious exercise” that is protected by RLUIPA?

Religious exercise under RLUIPA is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).

Using, building, or converting real property for religious exercise purposes is considered to be religious exercise under the statute. 42 U.S.C. § 2000cc-5(7)(B).  See Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2nd cir 2007). 

RLUIPA:

Government cannot deny a House of Worship a land use permit (e.g., zoning variance)...

  • If that denial substantially burdens religious practice
  • Without first showing a compelling government interest and
  • demonstrating that it is used the least restrictive means available to it to satisfy those compelling reasons


What is a “substantial burden” on religious exercise?

Not all land use regulations that affect religious institutions are prohibited: only those that impose a “substantial burden” on the house of worship’s “religious exercise.”   See 42 U.S.C. § 2000cc(a)(1) and 42 U.S.C. § 2000cc-1(b).

Although courts have yet to articulate a consistent definition of a “substantial burden,” at the very least, a substantial burden exists when a governmental action seriously impedes religious exercise.  

At least one court has described a substantial burden as being akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.   In the land use context, that might mean refusing to grant permits for the construction of classrooms used for religious purposes, or not giving a variance to a zoning ordinance for the building of a new house of worship.    See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) and Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 349 (2nd cir 2007). 

Notably, laws that merely inconvenience the exercise of religion do not create a substantial burden. And the conditional rejection of a permit may also be acceptable, so long as there is a clear path to curing the reasons for rejection that do not substantially burden an adherent’s free exercise.


What is a “compelling reason?”

Under RLUIPA, once a religious institution has demonstrated that its religious exercise has been substantially burdened, the burden of proof shifts to the municipality to prove it acted in furtherance of a compelling governmental interest and that its actions were the least restrictive means of furthering that interest.  42 U.S.C. § 2000cc-2(b).

Compelling state interests are "interests of the highest order." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).  Thus, when RLUIPA speaks of a government needing a compelling reason to burden a religious land use, it means only the most serious of reasons, such as a danger to life, safety, and/or health. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)(“[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”); Sherbert v. Verner, 374 U.S. 398, 406 (1963). (“[I]n this highly sensitive constitutional area, ‘only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ ” 

Moreover, the government must specifically identify the harm it is seeking to avoid.   See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (2006) (“Under the more focused inquiry required by RFRA and the compelling interest test, the Government's mere invocation of the general characteristics [of the harm] . . . cannot carry the day. . . .”

In short, a government cannot deny the right of a house of worship a permit to build or improve for even very important considerations, such as use plans, traffic flow concerns, etc.  However, a government can deny a permit if it thinks the proposed religious use will imperil such very significant interests as the life and safety of its citizens.  

Examples:  On the one hand, a town might have a compelling reason to deny a permit if the planned site is located in a dangerous location, such as on unstable ground.  However, a zoning board would be unable to legally deny a zoning variance to a house of worship because it doesn't conform to the town's development plan. 

What are the “Least Restrictive Means?”

There is another important step here: even if a town shows a compelling reason to deny a particular use of land, it must also show that it has chosen the “least restrictive means” to satisfy its reasons.  This means that it must show that there is no other way to protect life, health and safety other than through the denial of the proposed land use.  

For example, a town cannot deny a use permit to a new house of worship because it believes that ambulance service will be unduly delayed due to worship-day traffic where an alternative route for the traffic or where the installation of traffic signal would eliminate the problem. 

In short, it is up to the government, not the house of worship, to show that there were no viable alternatives it could adopt to protect life and safety short of denying the permit. 

 

What else does RLUIPA protect?

There are four other key parts of RLUIPA: 

No government shall impose or implement a land use regulation

  1. in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
  1. that discriminates against any assembly or institution on the basis of religion or religious denomination.
  2. that . . . totally excludes religious assemblies from a jurisdiction.
  1. that . . . unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

 

These four provisions ensure that religious institutions are treated on equal terms with other businesses and entities before zoning or land use boards; that governments are unequivocally barred from using religious bias or bigotry in their decision making about land use, and that land use regulations may not be deisgned to exclude religious entities from  town.  See 42 U.S.C. §§ 2000cc (b)(1, (b)(2),  (b)(3)(A) and (b)(3)(B).

 

What do we do if we are confronted with a RLUIPA problem? 

RLUIPA creates a private cause of action – that means you can bring a lawsuit.   In addition, RLUIPA authorizes the Attorney General of the United States to bring suits to enforce the Act.  The Attorney General has delegated this responsibility to the United States Department of Justice’s Civil Rights Division.  Your state attorney general or fair housing office may have additional information.  

What is RFRA?

Many states have, through legislative enactments sometimes called “Religious Freedom Restoration Act” or through judicial interpretations of their state constitution, determined that their state will also protect religious freedom by requiring that any governmental substantial burden on free exercise of religion be motivated by a compelling government interest and be done in the least restrictive means possible.   Your house of worship may have even greater claims and protections under these state laws.    

 

 

 

 

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