The term “substantial burden” in RLUIPA has confused and divided lower courts since it first appeared in the Act. The legislative history of RLUIPA reveals that Congress made a deliberate choice not to define “substantial burden,” but rather allow courts to utilize that definition from this Court’s jurisprudence starting with Sherbert v. Verner, 374 U.S. 398 (1963). Religious groups – especially religious minorities or those associated with racial or ethnic minorities – have paid a heavy price for that confusion, especially in land-use permitting decisions.
The confusion surrounds the following questions. First, in general, what is a “substantial burden,” and in particular, does it include discretionary systems for deciding whether to grant zoning permits to religiously motivated land uses? Second, there is a split in authority in Michigan, and throughout the United States, as to what a “substantial burden” is, or is not. The Michigan Supreme Court held in Greater Bible Way v. City of Jackson that a land use denial did not substantially burden the church is in direct conflict with decisions from the United States Court of Appeals, including the Sixth Circuit’s recent decision in Living Water Church of God v. Charter Township of Meridian.
The Michigan Supreme Court’s decision in Greater Bible Way deepened the three-way split among the Federal Courts of Appeals and State Supreme Courts over RLUIPA’s substantial burden standard. In Greater Bible Way, Michigan’s Supreme Court has turned the words “substantial burden” into a phrase meaning a complete and total exclusion of religious activity within the city. Essentially, the Court has said that if Greater Bible Way can theoretically worship in a single location somewhere in the City of Jackson, then no substantial burden exists.
On the other hand, the Sixth Circuit’s approach in Living Water Church of God v. Meridian Township, defines a substantial burden as government action that “places substantial pressure on the claimant that violates its religious beliefs or effectively bars a church from using its property in the exercise of religious.” Under this standard, the substantial burden is something more than exclusion from a particular piece of property, but something less than exclusion from the entire jurisdiction.
The more reasonable approach was set forth by Judge Posner in Saints Constantine and Helen Greek Orthodox v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005) (Posner, J). Judge Posner focused more on the government’s treatment of the religious applicant than on any resulted coercion or on the availability of alternatives. He wrote that a substantial burden may result from the “delay, uncertainty and expense” of multiple land use applications. Constantine, 396 F.3d at 901. This standard has been adopted by the Second, Seventh and Ninth Circuits, and approved in dicta in the First and Tenth Circuits. See, Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978, 989 (9th Cir., 2006); Westchester Day School v. Village of Mamaronek, 504 F.3d 338, 351 (2nd Cir., 2007); Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33, 38 (1st Cit., 2007); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 661-663 (10th Cir., 2006).
The United States Supreme Court has been asked on five separate occasions to define the substantial burden term, but has refused to take the issue. As a result of the split of the decisions, litigants who file suit will be subject to a completely different standard than others. RLUIPA plaintiffs in Michigan will have a strong incentive to bring their claims in federal court rather than state court, although the Living Water standard is not much better than the Michigan Supreme Court’s standard. In sum, Courts throughout the nation are all over the page when it comes to the meaning and legal consequence of the term “substantial burden” within RLUIPA jurisprudence. Be careful to see what definition of “substantial burden” applies to the jurisdiction where a case arises.