If you’re a person of faith, the Religious Land Use and Institutionalized Persons Act is something you should know about. This law has been instrumental in protecting religious freedom. But the government’s failure to clarify certain aspects of this law have led to misinterpretation (whether intentional or not) by many municipalities. This is affecting the ability of many congregations to worship freely in their communities. To amend these issues, the land use aspects of RLUIPA (which became law back in 2000), need to be reviewed.
RLUIPA, as it acronymically known, has secured important liberties, created enormous efficiencies and avoided unnecessary conflicts for thousands of religious assemblies, schools, colleges, hospitals, and municipalities throughout the U.S. by clarifying the protection of the Free Exercise Clause when zoning and land use regulation conflicted. Thousands, probably millions of people have benefited from this law. RLUIPA articulates three primary aspects:
- Religious organizations may not be zoned more restrictively than similar non-religious groups;
- Every municipality must allow religious groups as a freely permitted use somewhere and may not “unreasonably” exclude them;
- A zoning law may not “substantially burden” a religious organization’s ministry.
But RLUIPA like any groundbreaking legislation has flaws revealed through court interpretations and changing patterns of church land use.
As attorneys whose practice concentrated on civil liberties and religious land use even before RLUIPA became law, we see a number of areas where review, debate and possibly amendment of RLUIPA will benefit both worshippers and regulators:
- “One size fits all” misconception. Religious assemblies come in all flavors ranging from a church of 15 Bahais that worship in a house to mega congregations in large buildings on many acres. However, most zoning codes totally ignore size as a zoning factor! Obvious difficulties for religious groups and poor regulations from a governmental vantage result from this lack of distinction.
- “Not in my backyard” Syndrome. Many zoning codes are exclusionary beyond necessary land use regulations because
- “Let’s push the tax exempt uses to other towns”
- “Let’s discourage the black and brown people from expanding in our town”
- “We have enough churches and don’t need Muslims, Pentecostals or Orthodox Jews”
Although we know such prejudices exist, they are rarely provable. A lowering of zoning barriers will help religious people by extending areas where they can locate and municipalities by reducing incentives to discriminate.
- Sharpening definitions of “substantial burden.” Courts have developed a number of factors to consider in what makes a burden “substantial” such as
- Time needed to find property
- Available alternatives
- Ministries affected
- Municipal help or hindrance
These and other factors can be considered by Congress and perhaps incorporated definitionally. Conflicting court decisions can be resolved and new concepts enacted to provide when a municipal interest is sufficiently important to override a substantial zoning burden on a religious institution.
- Sharpening definition of “non-religious assemblies and institutions.” In RLUIPA such uses are the equal treatment comparators for “religious assemblies and institutions.” However, the courts are inconsistent on whether those uses are funeral homes, community centers, restaurants, banquet facilities, etc.
Congress could make land use easier for zoning officials, religious groups and courts by specifying comparative uses.
YOU CAN HELP
- Have your church adopt this simple resolution, send it to us (firstname.lastname@example.org) and your representatives.
- Pass this resolution on to every pastor, elder or religious leader you know asking them to follow your lead.
- If we can accumulate a critical mass of resolution, many representatives will scramble to introduce legislation. The original RLUIPA passed with overwhelming bipartisan support. More info can be found here.