The National Pulse

Zoning Gets Religion

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Pop quiz–the Religious Land Use and Institutionalized Persons Act is:

a) A federal law that protects churches and other houses of worship from discrimination during the zoning process, and generally protects the free exercise of religious faiths;

b) An unconstitutional government advancement of religion and a federal intrusion into matters of local concern; or

c) Congress’ latest bid to counter a U.S. Supreme Court ruling, and bound to head back to the high court, anyway.

While attorneys and constitutional law experts differ over “a” and “b,” few doubt the certainty of answer “c.” The 2000 legislation, termed RLUIPA, appears on a collision course with the Supreme Court, which rebuffed Con- gress’ last attempt to reinvigorate the First Amendment’s free-exercise-of-religion guarantee.

“It’s pretty common for Congress to pass statutes in response to Supreme Court decisions,” says Anthony Pica­rello, general counsel and vice president of the Washing­ton, D.C.-based Becket Fund, a public interest law firm aimed at protecting religious liberty rights and upholding the statute in the face of constitutional attacks.

Picarello would give answer “a.”

“RLUIPA is a critically important law,” he says. “It informs churches of their rights under the Constitution and codifies existing precedents that protect them.” Discrimination occurs frequently in the zoning process, he adds, particularly against minority religions. “The discretion that is so common in the zoning process, especial­ly in decisions on individual-use permit applications, is a wide-open door to discrimination against religious uses. Sometimes, the neighbors just don’t want Buddhists next door.”

Answering with “b” would be Marci Hamilton, law pro­fessor at Benjamin N. Cardozo School of Law in New York City. Hamilton, who regularly represents cities in RLUIPA cases around the country, has argued the issue before the Supreme Court.

She counters that the law unconstitutionally advances religion in violation of the First Amendment and tramples fundamental notions of federalism by involving the federal government in matters of traditionally local control.

“It is clearly unconstitutional for Congress to authorize such an enormous takeover of what is naturally and traditionally a local issue,” says Hamilton. “It is fundamentally unfair to treat religious landowners better than any other landowner in the same zoning process.”

Church Presence Increasing

Land-use cases involving RLUIPA are popping up across the country, partly because of the expanding role of many churches, Hamilton says. “Church buildings no longer sit empty the vast majority of the week, but offer child and senior day care, Alcoholics Anonymous meetings, homeless shelters, food kitchens, religious education during the week, and many other services.”

Thus far, most courts seem to favor the statute. For example, in 2002 a federal district court in Pennsylvania upheld the statute from a facial attack. Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F. Supp.2d 857. Judge Stewart Dalzell rejected challenges to RLUIPA under the establishment clause, commerce clause and other grounds.

In December, a federal judge in Hawaii discarded a slew of constitutional arguments against RLUIPA, finding that the statute violates neither the establishment clause, the commerce clause, the 10th Amendment nor section 5 of the 14th Amendment. U.S. v. Maui County, Civ. No. 03-00362SPK/KSC.

While many land-use RLUIPA cases involve a church battling city leaders over a zoning variance, a California case involves a neighborhood group suing the city of Los Angeles and an Orthodox Jewish congregation. The group claims the city violated its constitutional rights by attempting to alter the residential nature of the neighborhood. League of Residential Neighborhood Advocates v. City of Los Angeles, CV 03-4890 HLH.

On Dec. 22, a federal district court dismissed the lawsuit, saying the neighborhood group could not collaterally attack an earlier settlement between the city and the con­gregation. Hamilton says the case will be appealed.

Cleveland State University law professor Alan C. Wein­stein compares the threat of RLUIPA litigation to adult business zoning cases. In each, he says, “You have a small network of really good First Amendment attorneys who know what they’re doing. [Both groups] sue municipalities for civil rights violations under section 1983 and seek attorney fees. It is an effective model of litigation against city attorneys who often are more generalists than specialized in First Amendment areas.”

The result, Weinstein says, is that many cities have become risk-averse, and “sometimes bend over too far to accommodate in ways that I don’t think are required under RLUIPA.” In many suits, the Department of Justice has intervened to defend the constitutionality of the statute. “The DOJ is entitled by statute to intervene in litigation to defend any federal statute that is subject to constitutional attack,” Picarello says, “and RLUIPA is no exception.”

Prisoner Cases on The Rise

The act is not limited to church zoning issues. As the name indicates, the law also applies to inmates. Unlike land-use cases, prisoner RLUIPA cases have advanced at a much faster pace.

Federal appeals courts have split on the law, with the 4th, 7th and 9th U.S. Circuit Courts of Appeals upholding the law. Madison v. Riter, Nos. 03-6362, 6363; Charles v. Ver­hogen, 348 F.3d 601 (7th Cir. 2003); and Mayweather v. New­land, 314 F.3d 1062 (9th Cir. 2002). In Riter the 4th Circuit ruled in December that “RLUIPA has the effect of lifting burdens on prisoners’ religious exercise, but does not impermissibly advance religion.”

However, the 6th Circuit held in Cutter v. Wilkinson, 349 F.3d 257 (2003), that the act violated the establishment clause because it had “the primary effect of advancing religion.”

The circuit split leads many to believe that the Supreme Court will hear a prisoner case before a land-use case. The issues tend to be narrower and federal courts are more accustomed to prisoner-rights claims, says Hamilton. By contrast, she says, “The land-use cases involve the entire zoning process, including decisions by the zoning board.” However, Weinstein says that the high court would be more interested in a land-use case because “over the last decade the court has undertaken a real reconsideration of the federalism issue.”

Either way, the high court is more than likely to take on Congress once again in a back-and-forth dispute dating to the court’s controversial 1990 decision in Employ­ment Division v. Smith, 494 U.S. 872. The court rejected two drug counselors who claimed their First Amendment free exercise rights were violated when they were denied unemployment compensation after they were fired from their jobs for drug usage. The two argued that they ingested peyote for religious reasons. The court held that generally applicable laws that do not target but only incidentally affect religious practices are constitutional so long as they are reasonable.

That latter requirement significantly lowered the burden of proof for local governments, which previously were held to strict scrutiny, meaning municipalities had to show a com­pelling interest in the regulation, and show that it was implemented in the least restrictive way possible.

Smith created a furor in the religious liberty community, prompting Congress to pass the Religious Freedom Restoration Act in 1993. RFRA required state and federal government officials to show that their regulations met the earlier compelling-interest test.

Congress justified RFRA under the 14th Amendment’s section 5, the enforcement clause, empowering Congress to uphold the amendment via appropriate legislation. However, in a 1997 church land-use case, City of Boerne v. Flores, 521 U.S. 507, the Supreme Court ruled 6-3 that RFRA was unconstitutional as applied to the states. The court said Congress exceeded its power under the 14th Amendment in passing RFRA and extending it to the states. Hamilton, who argued for the municipality in the case, says the court agreed that the reach of RFRA was “breathtaking.”

In turn, Congress responded to Boerne with RLUIPA, a more narrowly crafted piece of legislation applying only to land-use and prisoner rights cases.

Like its predecessor, RLUIPA received strong, bipartisan support in Congress. Unlike the failed RFRA, however, Congress based its authority for RLUIPA on the spending and commerce clauses of the Constitution, as well as the 14th Amendment. Thus, the new law applies in cases involving receipt of federal funds, interstate com­merce or situations when the government makes individualized assessments for zoning permits. What the high court will do when it debates RLUIPA is anyone’s guess.

“It’s hard to predict how the Supreme Court will judge RLUIPA,” Picarello says. “[It] was designed to comply with Boerne, not to flout it. But the court in Boerne moved the goal posts under the enforcement clause” of the 14th Amendment. “They could move the goal posts again.”

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