I had the opportunity to talk with attorneys in Arizona about Religious Land Use and Zoning at the annual meeting of the Arizona Bar Association and was asked to address the question of why do we need RLUIPA when we have the Free Exercise and Establishment Clauses in the First Amendment.
The reason is clear. While the First Amendment Religion Clauses represent both a legal guarantee of religious liberty and a political commitment to religious liberty, they have not, in practice worked as they have should. Case after case demonstrates that a counter-tradition runs through American history with respect to religious liberty as we have not always lived up to our ideals. For example,
Prior to RLUIPA, not even mainstream churches could count on sympathetic regulation from local communities. Cornerstone Bible Church in Hastings, Minnesota was zoned out of town and left without a place to worship. The district court upheld exclusionary zoning, equating the zoning rights of churches with the zoning rights of pornographic movie theaters. Similar restrictive zoning laws are often enforced with indifference to religious needs and sometimes without right hostility to the presence of churches. Zoning laws have been invoked to prevent new activities in existing churches and synagogues, faith such as Islam and Buddhism, and to prevent churches and synagogues from being built at all in new suburban communities.
Most major American religions teach some duty to feed the hungry, clothe the naked, and a shelter the homeless; but when a church or synagogue tries to act and such teachings, it is likely to get a complaint from the neighbors and a citation from the zoning board. In the zoning cases, the problem is not that the church has a doctrinal tenant or moral teaching that directly conflicts with the policy of the lot. Rather, the problem is simply that the live restricts the churches ability to carry out its mission. Religious exercise is not free when churches cannot locate a new communities, or when existing churches cannot define their own mission.
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Congress adheres to the view that religious liberty is a substantive liberty and that no substantial burden should be placed on a religious practice without a compelling interest. Land-use regulation often targets churches, because churches tend to build distinctive properties. One study, for example, shows that in the city of New York, churches are landmarked at a rate forty-two times higher than secular properties. With or without targeting, land-use regulation has an enormous disparate impact on churches. It is administered through highly discretionary and individualized processes that leave ample room for deliberate, but hidden, discrimination.
In some cities, churches find that local governmental officials administer zoning regulation in such a way that it is nearly impossible to start a new church without consent of surrounding owners, and that this consent is so often withheld that finding a site for a new church is often impossible. Religious groups have reported that new suburbs on the fringe of urban growth often exclude churches, even from mainstream denominations. While denominations that account for only nine percent of the population account for about half the reported church zoning cases; these denominations plus unaffiliated churches account for less than a quarter of the population but more than two-thirds of reported church zoning cases. Adherents to the Jewish religion, for example, account for about two percent of the population but twenty percent of the reported church zoning cases.
The zoning process disproportionately excludes small and unfamiliar faiths. This discrimination is often unprovable in any individual case, but when large numbers of cases are examined, the pattern is clear. The process of administering zoning laws and designating landmarks are highly individualized. That is reason we need RLUIPA.
Thank you to my new friends in the State Bar of Arizona for inviting me to its annual meeting and for the opportunity to walk through the statute, the case law and real life examples of RLUIPA land use cases. If you would like my power point presentation, or have additional questions regarding RLUIPA, please feel free to contact me.
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.
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