Religious Land Use Research Articles

Religious Exercise in Prison - A Guide for Prison Officials

The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits any prison receiving federal funds from substantially burdening the religious exercise of its prisoners unless the burden survives strict scrutiny. This paper will discuss specific accommodations that a prisoner might request and propose solutions that will preserve the inmate’s right to free exercise of religion while still maintaining prison security. Specific accommodations discussed will be: dress and grooming accommodations, dietary accommodations, and ceremonial accommodations. This paper can serve as a guide to prison officials when they are faced with an accommodation request.

Park51 as a Case Study: Testing the Religious Land Use and Institutionalized Persons Act

Park51 as a Case Study: Testing the Religious Land Use and Institutionalized Persons Act

Rocky Mountain Christian Church v. Boulder County

Abstract On May 17, the Tenth Circuit affirmed a district court judge’s decision that the evidence presented at trial was sufficient to find that Boulder County violated the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (RLUIPA) when it denied a special use permit to the Rocky Mountain Christian Church (RMCC). The church wished to expand its facility to accommodate a growing congregation. The catch was that the church is located in the county’s agricultural zone, which the community, through its comprehensive plan and implementing regulations, desires to protect from urban-scale development. .

Hands Off the Scales: Rebalancing Religious Liberty and the Rule of Law

Abstract In the 10 years since President Clinton signed the Religious Land Use and Institutionalized Persons Act (RLUIPA) into law, the resulting litigation and consternation has not diminished. The impacts of this federal law have been addressed in previous commentaries, including RLUIPA: Two Sides to the Story (Daniel P. Dalton, Graham S. Billingsley, FAICP, and Dwight H. Merriam, FAICP (April 2007)); How to Avoid a “Holy War”—Dealing with Potential RLUIPA Claims (Alan C. Weinstein (March 2008)); Religious Land Uses, Zoning, and the Courts in 2008(Daniel P. Dalton (July 2009)); and in the RLUIPA Reader—Religious Land Uses, Zoning, and the Courts, edited by Michael S. Giaimo and Lora A. Lucero, AICP (ABA/APA 2009). The author of this commentary offers a potential solution to ongoing RLUIPA problems, recommending model language for state legislatures to consider. Modifications to the various state Religious Freedom Restoration Acts might rebalance public-private interests and reduce litigation.

A Non-Fatal Collision: Interpreting RLUIPA Where Religious Land Uses and Community Interests Meet

This paper grapples with the question how best to interpret the Religious Land Use and Institutionalized Persons Act, which creates a prophylactic remedy in favor of religious land users burdened by local land use regulations. Where the burden on religious exercise is substantial, RLUIPA subjects the regulation to strict scrutiny review. Several scholars object to RLUIPA on the grounds that it violates principles of federalism and equality between religious and non-religious landowners. Other scholars make the case for an expansive RLUIPA on the ground that the First Amendment privileges religious exercise over other types of land use. This article first attempts to narrow the debate about RLUIPA. It suggests that scholars are arguing about what this article calls the RLUIPA interest gap, the space between religious discrimination hidden behind facially-neutral land use regulations, on one hand, and regulations that are narrowly tailored to compelling state interests, on the other. After reviewing the federal courts’ constructions of RLUIPA’s key terms, this article concludes that the RLUIPA interest gap is narrower than most scholars suppose. Focusing on the RLUIPA interest gap and the implications of that gap for communities grappling with the implications of regulating religious land use should clarify what is and what is not at stake in the debate over RLUIPA’s scope. This article affirms the claim of Natural Law philosophers and religious scholars that religion is a basic human good, which deserves the protection of law. However, it denies that the fundamental value of religion is a reason to give religious land users an exemption from land use regulation that non-religious land users do not enjoy.Next, this article challenges the common assumption that RLUIPA’s strict scrutiny review is necessarily fatal. It attempts to identify some compelling state interests on the basis of which local governing authorities may burden religious land uses. The thesis of this latter part of the argument is that interests in direct protection of basic (underived, ultimate) human goods are compelling, for purposes of strict scrutiny analysis. If this thesis is correct, courts and scholars can more productively focus on the second prong of the strict scrutiny standard: narrow tailoring. A close connection between a community’s compelling interest and the land use decision chosen to protect that interest is a strong indication that the local government has not engaged in religious discrimination.

Religious Land Uses, Zoning, and the Courts in 2008

The Religious Land Use and Institutionalized Persons Act ("RLUIPA") has generated considerable litigation around the country since its passage in 2000. Abstracts of many RLUIPA decisions can be found online at www.planning.org/pel as well as on our daily RSS feed. Most often, the decision rests on whether or not a land use regulation or its implementation substantially burdens an applicant's religious exercise. This month's commentary explains the various definitions of "substantial burden" that have evolved in the courts and reviews some of the most significant RLUIPA decisions from 2008.

Jailhouse Islamophobia: Anti-Muslim Discrimination in American Prisons

The post 9/11 surge in America’s Muslim prison population has stirred deep-seated fears, including the specter that American prisons will become a breeding system for “radicalized Islam.” With these fears have come restraints on Muslim religious expression. Mistreatment of Muslim prisoners violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which Congress passed in part to protect prisoners from religious discrimination. Despite RLUIPA, prisoners still face the same challenge that preceded the legislation. Ironically, while Congress directed courts to apply strict scrutiny to these cases, the courts continue to reject most claims. One reason is that many courts are applying a diluted form of the legal standard. Indeed, the “war on terror” has justified increasing deference to prison administration to the detriment of incarcerated Muslims and religious freedom.

How to Avoid a "Holy War"—Dealing With Potential RLUIPA Claims

Abstract The Religious Land Use and Institutionalized Persons Act (RLUIPA) is in the news and in the courts. On January 15, the headline read "Mamaroneck village to pay $4.75M to yeshiva." The settlement agreement brings to an end a five-year dispute between the Westchester Day School and the village. The village spent more than $900,000 in legal fees fighting the Orthodox Jewish school's expansion project. How might this RLUIPA battle have been avoided? This month's commentary addresses that question—not specifically the Mamaroneck battle but in general: What should a local government attorney know about RLUIPA to (hopefully) avoid a RLUIPA claim? This commentary will be part of a new book about RLUIPA to be published later this year by the American Bar Association, with cosponsorship by the American Planning Association.

The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts. Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom. Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack. Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

Avoiding a RLUIPA Claim

This chapter discusses how local government can seek to avoid a claim being brought against it under the Religious Land Use & Institutionalized Persons Act (RLUIPA). Thus, the focus is not on what steps a local government should take when a RLUIPA claim is brought - or threatened to be brought - against it, but focuses instead on what steps local governments should take to seek to avoid a RLUIPA claim in the first place. After reviewing both the changing context of religious observance in the United States, and RLUIPA decisions to date, the chapter concludes that we are clearly in the midst of a dynamic environment socially, politically, and legally as regards the role of religion in our society and RLUIPA reflects this in the context of potential conflicts between churches and land use regulation. In this environment, local governments face a difficult task in seeking to avoid RLUIPA potential claims and evaluating their likelihood of prevailing if challenged. Local officials can, however, take several steps to lessen the likelihood of a potential claim, including: a comprehensive review of the treatment of religious institutions in its land use codes, both substantively and procedurally; training officials and employees to be sensitive to religious differences; and recognizing that land use applications from and enforcement of regulations against religious institutions must be handled with special care.

Losing My Religion: Eminent Domain, Open Space, and the RLUIPA

Is a local government's power of eminent domain limited by the Religious Land Use and Institutionalized Persons Act (RLUIPA)? Courts in three different jurisdictions have held that the statutory coverage of RLUIPA is clear and unambiguous: eminent domain and zoning are two distinct concepts, and therefore, municipalities conferred with the power of eminent domain do not violate the RLUIPA if the takings are for a public use. Faith Temple Church v. Town of Brighton, 405 F.Supp.2d 250 (W.D.N.Y. 2005); St. John's United Church of Christ v. City of Chicago, 401 F.Supp.2d 887 (N.D.Ill. 2005), 2007 U.S. App. LEXIS 21914 (7th Cir. 2007); City and County of Honolulu v. Sherman, 129 P.3d 542, 547 (Haw. 2006). A new case now pending before the United States District Court of the District of New Jersey, Albanian Associated Fund v. Township of Wayne (Case No.: 2:06-cv-3217), promises to have wider implications than previously decided cases. In a motion for summary judgment, the Albanian court has suggested that eminent domain is outside the scope of RLUIPA, but a taking pursuant to an open space plan is subject to the land use provisions of RLUIPA. This case is also complicated by the recent New Jersey Appellate Court and the New Jersey Supreme Court decisions in Mount Laurel Township v. Mipro Homes, LLC., 878 A.2d 38 (2005), 910 A.2d 617 (2006), which held that a municipality has the authority to exercise eminent domain for open space preservation, regardless of its true motives. Land use law practitioners and scholars are encouraged to pay close attention to this case as it develops.

RLUIPA, Distress, and Damages

Do prisoners have a right without a remedy? 3 The Religious Land Use and Institutionalized Persons Act of 2000 4 (RLUIPA or “the Act”) provides that “[n]o government shall impose a substantial burden on the religious exercise of a person” confined in a prison. 5 The Act further provides that a prisoner bringing a cause of action under RLUIPA may “obtain appropriate relief.” 6 But the Prison Litigation Reform Act of 1995 7 (PLRA) bars claims for damages for mental and emotional distress without physical injury. Because violations of the right to freely exercise one’s religion seldom cause physical injury, it is not clear whether or when prisoners suing under RLUIPA may recover compensatory damages when their statutory rights are violated. This Comment examines the apparent conflict between RLUIPA and PLRA. The issue addressed here is the result of three developments. First, in 1990 the Supreme Court decided Employment Division v Smith, 8 which made it more difficult for individuals (including prisoners) to establish a violation of First Amendment rights in the particu-

God vs. the gavel: religion and the rule of law

Part I. Why the Law Must Govern Religious Entities: 1. The problem 2. Children 3. Marriage 4. Religious land use and residential neighborhoods 5. Schools 6. The prisons and the military 7. Discrimination Part II. The History and Doctrine behind the Rule that Subjects Religious Entities to Duly Enacted Laws: 8. Boerne v. Flores: the case that fully restored the rule of law for religious entities 9. The decline of the special treatment of religious entities and the rise of the no-harm rule 10. The path to the public good.

Civil Liberties for Urban Believers v. City of Chicago: A Defining Case for the Substantial Burden Test under the Religious Land Use and Institutionalized Persons Act Note

Civil Liberties for Urban Believers v. City of Chicago: A Defining Case for the Substantial Burden Test under the Religious Land Use and Institutionalized Persons Act Note

RLUIPA is Constitutional

Although courts have overwhelmingly upheld The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) as constitutional, challenges to the law continue, based mainly on exaggerations and distortions about the law's purpose and effect.

Where Does APA Stand on RLUIPA?

As the two preceding commentaries demonstrate, there are strong differences of opinion about the constitutionality of the Religious Land Use and Institutionalized Persons Act—which will, no doubt, be resolved by the U.S. Supreme Court in the future. The American Planning Association has consistently opposed RLUIPA as well as its predecessor (the Religious Freedom Restoration Act). This has not only been a legislative priority for the organization, going back to the mid-1990s, but is now an adopted policy position that involves the work of APA's Amicus Curiae Committee.

RLUIPA is Unfair, Unwise, and Unconstitutional

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is unconstitutional as well as unfair and should be struck down by the courts. This commentary will discuss the constitutional principles that invalidate RLUIPA, which covers both land use and prison regulations. The focus of this commentary will be on its land use side.

The Constitutionality of the Religious Land Use and Institutionalized Persons Act under the Establishment Clause

1. Ghashiyah v. Wis. Deft ofCorr., No. 01-C-10, 2003 U.S. Dist. LEXIS 3739 (E.D. Wis. Mar. 4, 2003); Madison v. Riter, No. 7:01 CV00596, 2003 U.S. Dist. LEXIS 1094 (W.D. Va. Jan. 23, 2003). Prior to publication of this article, the Seventh Circuit vacated and re manded Ghashiyah, No. 01-C-10, slip op. at 1-2 (7th Cir. Jan. 15, 2004), and the United States Courts of Appeals for the Fourth Circuit reversed Madison, 355 F.3d 310 (4fh Cir. 2003). See also infra note 75 and accompanying text. However, in a recent holding, the Sixth Circuit expressly adopted Ghashiyah's and Madison's central arguments. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003). Indeed, the Sixth Circuit lauded Madison and Ghashiyah as remarkably well-worded and persuasive opinions and cautioned that our own analysis can (and will) be considerably streamlined by repeated references to Madison and Ghashiyah. Ibid, at 262. Thus, Madison s and Ghashiyah's reasoning, and much of their rhetoric, lives on—in a federal appeals court opinion explicitly relying on and referring readers to those decisions. This article's references to the seminal trial court decisions, therefore, will be retained. 2. See letter from Marci A. Hamilton, Thomas H. Lee Chair of Public Law & Director, Intellectual Property Law Program, Benjamin N. Cardozo School of Law, to United States Senate, Washington, D.C., 24 July 2000, at http://www.marcihamilton.com/rlpa/rluipa_let ter.htm (arguing that RLUIPA violates, inter alia, the Establishment Clause); Ruth Colker, City of Boeme Revisited, University of Cincinatti Law Review 70 (2002): 455, 472-73 (ar guing that RLUIPA violates the Establishment Clause); Ada-Marie Walsh, Land Use and Institutionalized Persons Act of 2000: Unconstitutional and Unnecessary, Wm. and Mary Rill Rts. Journal 10 (2001); 189, 201-07 (same). But see Roman P. Storzer and Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, George Mason Law Review 9 (2001): 929, 994-1000 (arguing that RLUIPA's land use provision does not violate,

RLUIPA: Where are We Now? Where are We Heading?

Abstract Over the past three years, hardly a week has gone by without at least one news-story announcing that a church, synagogue, or religious school-I'll use the term “church” from here on as a shorthand for all houses of worship or other religious institutions—is claiming that its right to religious freedom is being infringed by local government land use regulations in violation of the Religious Land Use and Institutionalized Persons Act. RLUIPA, a federal statute signed into law in September 2000, was enacted to restore to full vigor legal protection for religious freedoms that the Act's proponents argue had been seriously diminished by prior rulings of the U.S.

Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-clever Congress Could Provoke it to do So

The spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power. We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.