The third area of religious discrimination Congress addressed when enacting RLUIPA is that of non-discrimination. Congress provided that “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc (b)(2). Similar to the “equal terms” provision, RLUIPA's non-discrimination provision adopts Equal Protection Clause jurisprudence.
The Equal Protection Clause generally subjects laws that discriminate on the basis of religion to strict scrutiny. In equal protection cases, a court may determine the local government's object from both direct and circumstantial evidence. Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment, official policy, or decision in question, and the legislative, administrative, or quasi-judicial history, including contemporaneous statements made by members of the decision making body.
During legislative hearings, Congress found that churches and other places of religious assembly are often disadvantaged by zoning requirements that are not imposed on otherwise identical or similarly-situated secular assemblies or institutions. Thus, zoning provisions that discriminate against religious assemblies-for no discernible reason other than their religious nature-impermissibly discriminate against religious exercise, and are seldom, if ever, permissible ways to achieve any legitimate governmental interest. Congress set forth this rule in RLUIPA § 2(b)(2).
In sum, the question in religious land use cases, for purposes of the non-discrimination provision, is whether the local zoning rule permits non-religious uses within a zoning designation can fairly be characterized as “assemblies or institutions,” and if so whether those permitted religious assemblies or institutions, as compared to the rejected religious assemblies or institutions, cause “no lesser harm to the interests the regulation seeks to advance.” If it does, a non-discrimination issue may arise.
Regards, Dan
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Comments
Comments
admin
February 23, 2010
Hi Tom.
Take a look at Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 537 (1993) (applying strict scrutiny to public welfare ordinances containing “individualized government assessment[s]” that substantially burden religious exercise). RLUIPA’s definition of free exercise does not change what constitutes the free exercise of religion, or, more significantly, what constitutes a substantial burden on the exercise of religion - rather, it codifies Equal Protection Clause jurisprudence. Lukumi, 508 U.S. at 540 (“In determining if the object of the law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases.”); see also Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 705 (1994) (“Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice.”); and Kiryas Joel, 512 U.S. at 715 (O’Connor, J., concurring) (”[T]he Religion Clauses - the Free Exercise Clause, the Establishment Clause, the Religion Test Clause, Art. VI, cl.3, and the Equal Protection Clause as applied to religion - all speak with one voice on this point: Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or duties or benefits.”). Generally speaking, the Equal Protection Clause subjects laws that discriminate on the basis of religion to strict scrutiny, Oyler v. Boles, 368 U.S. 448, 456 (1962). Thus, zoning provisions that discriminate against religious assemblies for no discernible reason other than their religious nature-impermissibly discriminate against religious exercise, and are seldom, if ever, permissible ways to achieve any legitimate governmental interest. Love Church v. Evanston, 671 F. Supp. 515, 521 (N.D. Ill. 1987) vacated on other grounds, 896 F.2d 1082 (7th Cir. 1990). RLUIPA’s non discrimination clause at § 2(b)(2) codifies this proscription. Does that make sense?
Dan
Comments
Tom Fabbri
February 23, 2010
Much clearer. Thanks.
TF
Tom Fabbri
February 22, 2010
“The Equal Protection Clause generally subjects laws that discriminate on the basis of religion to strict scrutiny”
I was under the oppression that courts reserved the strict scrutiny analysis for intentional discrimination against suspect classes (race, national origin, or alienage). I thought the test used for Equal Protection challenges with regards to religious discrimination would be a rational basis with “bite” analysis similar to that used in Romer v Evans, therefore putting the burden on the plaintiff to prove animus towards the group or an irrational ends in the government action?
Best,
TF