Is RLUIPA constitutional?

By Daniel P. Dalton
March 30, 2010

Ten years after Congress passed the Religious Land Use and Institutionalized Persons Act, local governments still argue that RLUIPA is unconstitutional claiming that it gives religious entities an advantage in land use disputes over local communities.  Federal Court’s routinely reject constitutional challenges noting that religious entities are not the only group that has some zoning and land use protection under the law.  Congress has given total federal preemption in zoning for matters associated with telecommunications and cell towers, military bases and railroads. Michigan state law grants zoning preemption over local communities with respect to school districts, universities and mobile home parks. While Congress did not grant religious entities federal preemption over zoning, critics have suggested this to be true and use it as a basis to challenge the constitutionality of RLUIPA.

In Cutter v. Wilkinson, 544 U.S. 709 (2005), the Supreme Court unanimously rejected an Establishment Clause challenge to Section 3 of RLUIPA, the substantial burdens test as applied in the prison context.  The Court squarely rejected the argument that RLUIPA impermissibly advanced religion by accommodating religious exercise alone without also accommodating other constitutional rights.  Id. at 724-725.  Without exception, lower courts have rejected the same argument when asserted against RFRA, see Cutter, n2 (listing the numerous cases), and against RLUIPA Section 2(a). Id. at 715, n.2.  Further, in Gonzales v. O Centro Espirita Beneficente Uniao, -- U.S. --, 126 S.Ct. 1211, the Court echoed Cutter and again acknowledged that RLUIPA did not violate the Establishment Clause.

Consistent with those decisions and as explained below, RLUIPA section 2(a) comports with the Establishment Clause because it has the secular purpose and effect of lifting a significant government burden on the exercise of religion, and does not require any excessive entanglement between government and religion. See generally Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987) (applying three-part Lemon v. Kurtzman, 403 U.S. 602 (1971), test to evaluate constitutionality of accommodation statute).

We have briefed this issue on several occasions detailing the reasons why RLUIPA is constitutional and describing the lower Court decisions affirming its validity.  Please feel free to contact us for more information.

Regards, Dan