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Five Lessons Learned at the Department of Justice RLUIPA Roundtable

Written by Lawrence Opalewski on May 5, 2016 Category: Religious Institutions, RLUIPA

On May 2, 2016 Kate Brink and I had the honor to be invited to speak at the RLUIPA Roundtable hosted by the United States Attorney’s Office and the Department of Justice. We were grateful for the opportunity to speak with other RLUIPA practitioners and leaders from several religious and cultural communities in the Detroit area. While the event rules prohibit us from providing direct quotes from the discussion, we have compiled a list of 5 of the most important takeaways from the event.

  1. The Islamic community is disproportionately affected by religious land use discrimination. While Islamic institutions make up only a small fraction of religious institutions in the United States, a large and growing percentage of RLUIPA cases involve Islamic communities. There is clearly a need for RLUIPA practitioners to ensure we are serving the needs of the Islamic community moving forward.
  2. There is a great need to connect RLUIPA practitioners with religious institutions. Unfortunately, many religious communities are still completely unaware of the protections to which they are entitled under RLUIPA. Therefore, it is very likely that many institutions are enduring violations of their federal rights, without ability to seek redress. The federal government and RLUIPA practitioners must do a better job of reaching and educating religious leaders regarding their rights.
  3. Land use discrimination is often done by pretext. While some municipalities are still unaware of RLUIPA, others have begun to attempt to avoid liability under RLUIPA by denying religious land uses based on seemingly innocuous criteria. Instead of admitting that a community is opposed to a religious institution for unlawful reasons, municipal officials will deny land use approval based on factors such as traffic, lighting, or noise. Of course, there are times when these concerns are valid. But many other times the facts do not support these concerns, and they are revealed to be nothing more than a pretext for discrimination. Religious leaders and RLUIPA practitioners must be aware of this.
  4. In deciding substantial burden cases, judges typically look for “bad actors.” Despite a significant number of substantial burden cases having been decided in the past 16 years, there is still not a universally accepted definition of a “substantial burden” on religious exercise. This has led judges in substantial burden cases to inquire as to who the “good” and “bad” actors are in a particular case. While a good attorney can certainly navigate through this question, it does not necessarily reflect the text of RLUIPA itself. Judges and practitioners should strive to develop a better and more workable definition for “substantial burden.”
  5. There are good arguments for applying RLUIPA to restrictive covenants and eminent domain in some cases. While restrictive covenants and eminent domain actions will likely not always be “land use regulations” under RLUIPA, there are times when the facts of the case make clear that a municipality is using these things as a way to discriminate against religious land use. In these scenarios, RLUIPA is an option to protect the rights of the religious institutions.

We thoroughly enjoyed the opportunity to discuss these important issues with our esteemed colleagues. We look forward to collaborating further with the Department of Justice, the U.S. Attorney’s Office, other attorneys, and community leaders to make progress on fighting religious land use discrimination.

Dalton & Tomich, PLC is the national leader in RLUIPA and all religious land use matters. If you feel that the rights of your community are being violated, or if you simply have questions about these issues please do not hesitate to contact us. We would be happy to speak with you.

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