If you only pay attention to the hot-button cases that make the nightly news, you may think the Supreme Court is deeply divided in most of its cases. This is simply not true. The Supreme Court issues far more unanimous decisions than 5-to-4 decisions.
One area where the Supreme Court justices appear to agree is in their interpretation of key provisions of the Religious Land Use & Institutionalized Persons Act (“RLUIPA”). Last week, a nearly unanimous Supreme Court ruled in favor of an inmate who wanted to have his pastor pray over and lay hands on him during his execution. In an 8-1 decision written by Chief Justice Roberts, the Supreme Court reiterated that RLUIPA provides “greater protection for religious exercise than is available under the First Amendment.”1 The Court also stressed that once a religious claimant shows that the government regulation imposes a substantial burden on a specific religious exercise, the government must justify the burden with more than just conjecture and speculation. RLUIPA requires a case-by-case analysis and does not allow the government to rely on “broadly formulated interests.”
While the Supreme Court has now decided two major institutionalized persons cases under RLUIPA, the Supreme Court has yet to decide a land use case. Without the Supreme Court’s direction, the federal circuit courts of appeal have split over how to interpret RLUIPA’s land use provisions. The circuits are divided over how to apply the “Equal Terms” provision which says that “[n]o 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.” There is also disagreement over what constitutes a “substantial” burden on religious exercise in the land use context. Unfortunately, until the Supreme Court takes a RLUIPA land use case to resolve these disagreements, the strength of RLUIPA’s land use provisions will vary based on where the religious institution or assembly is located.
In 2018 case, Sixth Circuit Judge Amul Thapar strongly encouraged the Supreme Court to take a land use case. Judge Thapar wrote in a dissenting opinion that the “fault lies not with Congress, but with the courts, which have added requirements into RLUIPA that prevent many religious groups from seeking the shelter that Congress sought to provide.”2 Judge Thapar criticized the courts for not adhering to the statute’s express instruction to “construe the statute in favor of a broad protection of religious exercise, to the maximum extent permitted.” Judge Thapar ended with this parting comment: “There comes a time with every law when the Supreme Court must revisit what the circuits are doing. That time has come.”3
While we wait for the Supreme Court to revisit what the circuits are doing, it will continue to be critically important for religious institutions to work with attorneys who are familiar with the way in which RLUIPA is interpreted by the various circuits. The attorneys at Dalton & Tomich have litigated religious land use cases across the country and are familiar with the divergent circuit court tests. If your religious institution is struggling because of zoning and land use regulations, please give us call.
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.
In 2015, Hope Rising Community Church experienced extreme opposition, the kind that would force it to close its doors and leave behind the families and youth it was so passionate about reaching. As the lead pastor I felt helpless, inferior and as if I had no […]Read More
Dalton & Tomich’s assistance in our RLUIPA matter has paved the way for our church to continue serving the community and for new churches in the area to thrive in the future. Thank you from the bottom of our hearts for your stand for religious […]Read More
The Urban Church will be forever grateful to Dalton & Tomich plc for navigating it through a difficult land use issue. Let them give you honest and caring advice because that’s exactly what they’ll do.Read More
Dalton & Tomich, PLC defended a complicated case at a church we insure. Not only is the firm professional, they understand how church business runs and work well within church leadership.Read More
Dalton & Tomich, PLC helped us immensely in the areas of litigation and negotiation! Their professionalism and understanding of church policy helped our church be victorious in a modern day religious land use battle. RLUIPA Religious Land Use Case: Lighthouse Community Church of GodRead More
Dalton & Tomich, PLC serves as General Counsel for the 144 churches within the Church of God in Michigan. The firm provides the legal expertise we need in dealing with the issues that arise during the course of fulfilling our ministry.Read More
I met Dan Dalton during a dark time for our church. He was recommended as the leading RLUIPA attorney in the nation. He demonstrated wisdom, expertise, a gentle nature, a calming inter-relational skill, genuineness, and a humble demeanor, while at the same time, being sharp, […]Read More
Mr. Dalton’s expertise and experience helped us through a very difficult legal journey, ultimately achieving a favorable outcome. His personal interest in helping our church went “above and beyond” just the call of duty. His understanding of both legal and spiritual matters seems to uniquely […]Read More