The issue of defining the term “religious institution” and determining whether an entity is a religious institution under RLUIPA is a question not frequently raised but important to consider in the context of a religious land use dispute.
Defining a Religious Institution
Congress did not define the term “religious institution” or “religious assembly,” within RLUIPA and very few courts have actually performed a legal analysis as to whether a particular entity qualifies as a “religious assembly or institution” for purposes of RLUIPA. Nevertheless, the available case law and related guidance that address this topic seem to indicate the issue of whether an entity is a religious institution under RLUIPA is a question of fact. In two separate RLUIPA land uses cases, the Eleventh Circuit and Third Circuit both looked to the dictionary definitions of the terms “assembly” and “institution” to deduce their ordinary meanings. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230-31 (11th Cir. 2004); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 284 n.29 (3d Cir. 2007). Certainly, whether a religious entity meets the dictionary definition of an “assembly” or “institution” is a question of fact that will largely depend upon the specific factual circumstances surrounding that particular entity.
The Department of Justice has weighed in on this issue in its most recent guide on RLUIPA numerous by discribing the following as “religious assemblies or institutions” under RLUIPA, including:
It is cleat that it is a question of fact whether a particular entity qualifies as one of the above-noted religious assemblies or institutions. A jury would surely need to look at the specific factual circumstances surrounding that entity to determine if it falls within one of those listed “religious assemblies or institutions.”
Standards to Determine a Religious Assembly under RLUIPA
No court has announced a specific fact inquiry or standard that should be used to determine if a particular entity is a “religious assembly or institution” under the land use provisions of RLUIPA. It is clear, however, that a court should apply a fact-intensive inquiry to determine whether an entity qualifies as a “religious institution” under RLUIPA. A potential option for a test or standard comes from federal case law addressing religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. As a general rule under Title VII, employees cannot be terminated based on their religious beliefs. However, an exemption to this rule exists when the employer is “a religious corporation, association, educational institution, or society.” See 42 U.S.C. § 2000e-1(a)
In a case addressing this religious employer exemption, the Ninth Circuit noted that, like RLUIPA, “[t]ypically, the question of whether an organization is religious for purposes of section 2000e-1 warrants little analysis. In most cases, the organization seeking the exemption is “clearly” religious, and the result is straightforward.” Spencer v. World Vision, Inc., 619 F.3d 1109, 1112 (9th Cir. 2010). This is very similar to the point Plaintiff made above with regard to the lack of analysis into the definition of “religious institution” under RLUIPA. The Ninth Circuit also noted when the inquiry into whether an entity is religious is less obvious, the court should look at “whether the general picture of [an] institution is primarily religious or secular.” Id. (citing EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 n.14 (9th Cir. 1988)). The court also stated “each case must turn on its own facts. All significant religious and secular characteristics must be weighed to determine whether the corporation’s purpose and character are primarily religious.” Townley, 859 F.2d at 618.
In a similar decision, the Third Circuit delineated nine factors a court should consider when determining whether an entity qualified as a “religious organization” under Title VII. LeBoon v. Lancaster Jewish Comm. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007). These nine factors are: (1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists. Id.
The court emphasized that “not all factors will be relevant in all cases, and the weight given each factor may vary from case to case.” Id. at 227. The court also noted the Title VII exemption should not be denied to institutions simply because they might engage in some secular activities, might not adhere to the strictest tenets of their faith, or might not hire only coreligionists. Id. at 229-30.
The nine-factor LeBoon test that is used to determine whether an entity qualifies as a “religious organization” under Title VII could also be used to determine whether an entity qualifies as a “religious assembly or institution” under RLUIPA. As the Ninth Circuit and Third Circuit both stated, the analysis performed under this test involves weighing the specific facts in each case, not all nine of which will be applicable in every case. Townley, 859 F.2d at 618; LeBoon, 503 F.3d at 226-27. This is in line with the argument that the issue of whether an entity is a religious institution under RLUIPA is a question of fact.
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