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RLUIPA at 10 years: Yes, the Law is Needed

Written by Daniel P. Dalton on October 10, 2010 Category: Religious Institutions, RLUIPA

Last week, in conjunction with the celebration of the tenth anniversary of the passage of the RLUIPA, the Department of Justice prepared a timely report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act and frequently asked questions with an answer guide specifically for local governments who address religious use issues. The question raised by many detractors is whether the law matters.RLUIPA does matter.

A recent illustration of events demonstrates the need for the law. At issue is a proposal by DuPage County, Illinois and the Village of Willowbrook, Illinois to amend their zoning ordinances to delete religious uses within residential districts. The facial effect of the proposal is to limit religious uses to less than one percent of the land in the Village. As applied, the effect is the total elimination of religious uses from the Village as no land is available to meet the proposed restriction. DuPage County, Illinois held hearings to eliminate all religious uses in the unincorporated areas of the County. The result of both DuPage County and the Village of Willowbrook would be to eliminate new uses and severely restrict existing religious uses. Why the proposals? Despite both governing bodies expressing that neither proposal is based on religion, the facts show that the reason why the proposals are moving forward is that the Muslim community in DuPage County, Illinois wish to build mosques.

Any analysis of how the Federal and State religious land use laws begins, in large part, with understanding the worship requirements of those affected by the Ordinance. This is particularly true with the lack of understanding concerning the worship requirements of Muslims. With respect to many American Muslims, the mosque is the hub of religious life. In addition to being a place for prayer and worship, mosques also offer weekend religious schools for children, sports activities, social and educational gatherings for adults and meeting places for picnics and other fun and wholesome activities. Within the Council, there are mosques that provide pre-marital and marital counseling, parenting workshops and other social services for the community. The Council sponsors programs in cooperation with other mosques and Muslim institutions, to help educate the community and train mosque leaders in the importance of expanding mosque services and in the nuts and bolts of how to go about doing it.

As observed through the policy statement issued by the Department of Justice in, the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., is a civil rights law that protects individuals and religious institutions from discriminatory and unduly burdensome land use regulations. After hearings in which Congress found that religious assemblies and institutions were disproportionately affected, and in fact often were actively discriminated against, in local land use decisions, Congress passed RLUIPA unanimously in 2000. In considering RLUIPA, Congress found that zoning authorities were frequently placing excessive or unreasonable burdens on the ability of congregations and individuals to exercise their faith with little to no justification and in violation of the Constitution. Congress further found that religious institutions often faced both subtle and overt discrimination in zoning, particularly minority, newer, smaller, or unfamiliar religious groups and denominations.

Congress also found that, as a whole, religious institutions were treated worse than comparable secular institutions by zoning codes and zoning authorities. Congress further found that zoning authorities frequently were placing excessive burdens on the ability of congregations and individuals to exercise their faiths without sufficient justification, in violation of the Constitution. As RLUIPA’s Senate sponsors, Senator Hatch and the late Senator Kennedy, said in their joint statement issued upon the bill’s passage:

Zoning codes frequently exclude churches in places where they permit theaters, meetings halls, and other places where large groups of people assemble for secular purposes. . . . Churches have been denied the right to meet in rented storefronts, in abandoned schools, in converted funeral homes, theaters, and skating rinks—in all sorts of buildings that were permitted when they generated traffic for secular purposes.

In the ten years since its passage, RLUIPA has been applied in a wide variety of contexts and has been the subject of substantial litigation in the courts. It is a complex statute, with five separate provisions that protect religious exercise in different but sometimes overlapping ways. They are:

  • Protection against substantial burdens on religious exercise: Section 2(a) of RLUIPA prohibits the implementation of any land use regulation that imposes a “substantial burden” on the religious exercise of a person or institution except where justified by a “compelling governmental interest” that the government pursues in the least restrictive way possible.
  • Protection against unequal treatment for religious assemblies and institutions: Section 2(b)(1) of RLUIPA provides that religious assemblies and institutions must be treated at least as well as nonreligious assemblies and institutions.
  • Protection against religious or denominational discrimination: Section 2(b)(2) of RLUIPA prohibits discrimination “against any assembly or institution on the basis of religion or religious denomination.”
  • Protection against total exclusion of religious assemblies: Section 2(b)(3)(A) of RLUIPA provides that governments must not totally exclude religious assemblies from a jurisdiction.
  • Protection against unreasonable limitation of religious assemblies: Section 2(b)(3)(B) of RLUIPA provides that government must not unreasonably limit “religious assemblies, institutions, or structures within a jurisdiction.”

RLUIPA matters. Both the Village of Willowbrook and DuPage County are studying the proposals in light of the concerns raised on behalf of my client. Application of RLUIPA will hopefully lead them both to do the right thing and eliminate the proposals and allow religious uses to flourish in Illinois.

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.