The Legal Intelligencer
(by Krista-Ann Staley and Anna Jewart)
This year marks the 20th anniversary of the Religious Land Use and Institutionalized persons Act of 2000 (RLUIPA), 42 U.S.C. Sections 2000cc et seq, a federal statute that protects the rights of individuals and institutions to use land for religious purposes, in addition to protecting the rights of persons confined to institutions to exercise their faiths. Coincidentally, the anniversary comes at a time when the COVID-19 pandemic and related restrictions have severely limited our ability to gather safely, causing many churches, synagogues, temples, mosques and other places of worship to close or limit attendance. This context provides a unique opportunity to review two decades of RLUIPA’s application.
One key component of RLUIPA is the protection of the ability to gather and congregate without government intrusion. While earlier legislation, such as the Church Arson Prevention Act, 18 U.S.C.A. Section 247, protected places of worship against arson, vandalism, or other violent interference, RLUIPA protects the ability to establish or build those places of worship. To do so, it specifically addresses local land use regulations, including the application of zoning regulations and permitting practices.
Congress enacted RLUIPA in the late 1990s, following nine hearings over three years. Those hearings examined religious discrimination in land use decisions. They revealed what Congress described as “massive evidence” of widespread discrimination by state and local officials in cases involving individuals and institutions seeking to use land for religious purposes. This discrimination most often impacted minority faiths and newer, smaller or unfamiliar denominations, and could be coupled with racial and ethnic discrimination. RLUIPA, drafted with bipartisan support, unanimously passed both houses of Congress and was signed into law by President Bill Clinton in 2000. The Civil Rights Division of the Department of Justice, tasked with enforcing RLUIPA, reports the statute has had a “dramatic impact on protecting individuals and institutions seeking to exercise their religions through construction, expansion, and use of property” since its enactment. See “Twentieth Anniversary of the Religious Land Use and Institutionalized Persons Act” (Sept. 22, 2020).
In general, RLUIPA provides that a land use regulation cannot substantially burden religious exercise, unless the government can show the regulation furthers a compelling government interest and is the least restrictive means of furthering that interest, 42 U.S.C.A. Section 2000cc(a). Subsection (b) then provides for four specific protections as follows:
- Equal terms
No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
- Nondiscrimination
No government shall impose or implement a land use regulation that discriminates against an assembly or institution on the basis of religion or religious denomination
- Exclusion and limits
No government shall impose or implement a land use regulation that:
- Totally excludes religious assemblies from a jurisdiction; or
- Unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
RLUIPA’s land use provisions specifically address discrimination in state and municipal land use decisions. It enables aggrieved persons to bring suit under both the land use and institutionalized person provisions. In addition, the attorney general is authorized to bring suit to enforce RLUIPA, and the Department of Justice may bring suit for declaratory or injunctive relief, but not monetary damages. See 42 U.S.C.A. Section 2000cc-2. This leads to the typically rare occurrence of cases in which the U.S. government sues local municipalities over what is traditionally a local prerogative, zoning.
As is well-detailed in the 20th anniversary report, extensive litigation under the land use provisions of RLUIPA has not resulted in any U.S. Supreme Court decisions. However, the federal courts of appeal and district courts have ruled on numerous RLUIPA issues. The majority of RLUIPA litigation has focused on the substantial burden and equal terms provisions found in subsections (a) and (b)(1), above. The courts are of general agreement that the question of what constitutes a “substantial burden” should be determined by a totality-of-the-circumstances test, examining whether the government’s actions substantially inhibit religious exercise, rather than merely inconveniencing it. This assessment considers factors such as the actual need of the congregation for the proposed site, whether the government action imposed delay, uncertainty or expense and whether the government acted arbitrarily. See 20th Anniversary Report at 8, citing Brief of the United States as Amicus Curiae, Thai Meditation Association of Alabama v. City of Mobile, No. 19-12418 (11th Cir. Filed Oct. 23, 2019) at 17.
Although there is no national consensus regarding the interpretation of the “equal terms” provision contained in subsection (b)(1), a plaintiff asserting a claim under this provision in the U.S. Court of Appeals for the Third Circuit must show “it is a religious assembly or institution, subject to a land use regulation, which regulation treats the religious assembly on less than equal terms with a nonreligious assembly or institution that causes no lesser harm to the interests the regulation seeks to advance.” See United States v. Bensalem Township, 220 F.Supp. 3d 615, 621 (E.D. Pa. 2016).
The nondiscrimination and exclusion provisions have not been the targets of frequent litigation, however federal courts in Pennsylvania have addressed them. In Bensalem Township, cited above, the court noted that the nondiscrimination provision is rooted in First Amendment establishment clause jurisprudence, and intended to prevent governmental bodies from treating groups differently on the basis of their religious denomination. This includes disparate treatment in the implementation of zoning regulations. For example, a RLUIPA nondiscrimination claim can be based on allegations that a plaintiff religious group faced a more rigorous approval process to obtain a conditional use than a secular group.
Pennsylvania jurisprudence suggests that the “total exclusion” provision is difficult to prove. In Adhi Parasakthi Charitable, Medical, Educational, and Cultural Society of North America v. Township of West Pikeland, 721 F.Supp.2d 361 (E.D. Pa. 2010), the court held a zoning ordinance requiring conditional use approval for a Hindu temple did not rise to the level of a total exclusion as “religious use was not entirely zoned out” of the township.
Furthermore, in Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), the Third Circuit held that, unlike the substantial burden section contained in 42 U.S.C.A. 2000cc(a), the equal terms, nondiscrimination, and exclusion provisions contained in 2000cc(b) do not provide for strict scrutiny analysis of offending land use regulations. Rather, they operate under a strict liability standard, making any discriminatory regulations automatically invalid. As analyzed in Adhi, under this section, if the discrimination occurred, the government does not have the opportunity to justify the conduct by showing a compelling interest.
It is critical to note that RLUIPA’s land use provisions do not prohibit local governments from regulating religious uses. RLUIPA requires local governments to draft and apply local regulations so that they do not place substantial burdens on religious uses, absent a compelling government interest, and do not exclude, unreasonably limit, discriminate against, or treat on less than equal terms any religious use, regardless of government interest. Municipalities would be well-advised to enact and apply local regulations based on neutral terms, such as the number of seats available at a place of assembly or anticipated parking demands. In addition, municipal governments must be cognizant of what constitutes a religious use. It should also be noted that Pennsylvania’s Religious Freedom Protection Act, (RFPA) requires that a law or regulation in the commonwealth, that has an effect on the exercise of religion has to establish that the agency did not substantially burden a persons’ free exercise of religion. See 71 P.S. Sections 2401-2407; Ridley Park United Methodist Church v. Zoning Hearing Board of Ridley Park Borough, 920 A.2d 953 (Pa. Cmwlth. 2007).
Krista-Ann M. Staley is a shareholder in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst Calland Clements & Zomnir. In these capacities, Staley focuses her practice on representation of diverse private and public sector clients on land use and other local regulatory matters. Contact her at kstaley@babstcalland.com.
Anna S. Jewart is an associate in the firm’s public sector services group and focuses her practice on zoning, subdivision, land development, and general municipal matters. Contact her at ajewart@babstcalland.com.
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Reprinted with permission from the December 17, 2020 edition of The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.