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Talking about RLUIPA to the Arizona Bar Association: Why do we need RLUIPA when we have the Free Exercise and Establishment Clauses in the First Amendment?

Written by Daniel P. Dalton on June 28, 2019 Category: Religious Institutions, RLUIPA, RLUIPA Case Observations and Insights, RLUIPA Cases

I had the opportunity to talk with attorneys in Arizona about Religious Land Use and Zoning at the annual meeting of the Arizona Bar Association and was asked to address the question of why do we need RLUIPA when we have the Free Exercise and Establishment Clauses in the First Amendment.

The reason is clear. While the First Amendment Religion Clauses represent both a legal guarantee of religious liberty and a political commitment to religious liberty, they have not, in practice worked as they have should. Case after case demonstrates that a counter-tradition runs through American history with respect to religious liberty as we have not always lived up to our ideals. For example,

  • The New England theocracy expelled dissenters, executed Quaker missionaries who returned, and, most infamously, perpetrated the Salem witch trials.
  • Colonial Virginia imprisoned Baptist ministers for preaching without a license.
  • American slaveowners totally suppressed African religion among the slaves, in what one historian has called “the African spiritual holocaust.”
  • Hostility to Catholics produced anti-Catholic political movements, mob violence, and church burnings in the nineteenth century. Catholic children were beaten for refusing to read the Protestant Bible in public schools
  • In the 1920s, the Ku Klux Klan and other Nativist groups pushed through a law in Oregon requiring all children to attend public schools; the effect would have been to close the Catholic schools.
  • The Mormons fled from New York, to Ohio, to Missouri, to Illinois, to Utah.
  • From the late 1930s to the early 1950s, towns all over America tried to stop the Jehovah’s Witnesses from proselytizing. These towns enacted a remarkable variety of ordinances, most of which were eventually struck down.
  • More recently, the Boston Landmarks Commission argued that it could tell Jesuits where to put the altar in their chapel in Boston, because there was no doctrinal tenet that said the altar had to be in one place or another.
  • Mother Teresa’s shelter for the homeless New York was shut down without any litigation because, after Smith, Mother Teresa clearly didn’t have a defense. The shelter was shut down because it didn’t have an elevator and it was on the second floor, and the authorities said there was no access for the handicapped homeless.
  • The Salvation Army was ordered to close its mission to homeless alcoholics because it did not and could not pay its beneficiaries the minimum wage for their service.

Prior to RLUIPA, not even mainstream churches could count on sympathetic regulation from local communities. Cornerstone Bible Church in Hastings, Minnesota was zoned out of town and left without a place to worship. The district court upheld exclusionary zoning, equating the zoning rights of churches with the zoning rights of pornographic movie theaters. Similar  restrictive zoning laws are often enforced with indifference to religious needs and sometimes without right hostility to the presence of churches. Zoning laws have been invoked to prevent new activities in existing churches and synagogues, faith such as Islam and Buddhism, and to prevent churches and synagogues from being built at all in new suburban communities.

Most major American religions teach some duty to feed the hungry, clothe the naked, and a shelter the homeless; but when a church or synagogue tries to act and such teachings, it is likely to get a complaint from the neighbors and a citation from the zoning board. In the zoning cases, the problem is not that the church has a doctrinal tenant or moral teaching that directly conflicts with the policy of the lot. Rather, the problem is simply that the live restricts the churches ability to carry out its mission. Religious exercise is not free when churches cannot locate a new communities, or when existing churches cannot define their own mission.

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Congress adheres to the view that religious liberty is a substantive liberty and that no substantial burden should be placed on a religious practice without a compelling interest. Land-use regulation often targets churches, because churches tend to build distinctive properties. One study, for example, shows that in the city of New York, churches are landmarked at a rate forty-two times higher than secular properties. With or without targeting, land-use regulation has an enormous disparate impact on churches. It is administered through highly discretionary and individualized processes that leave ample room for deliberate, but hidden, discrimination.

In some cities, churches find that local governmental officials administer zoning regulation in such a way that it is nearly impossible to start a new church without consent of surrounding owners, and that this consent is so often withheld that finding a site for a new church is often impossible.  Religious groups have reported that new suburbs on the fringe of urban growth often exclude churches, even from mainstream denominations. While denominations that account for only nine percent of the population account for about half the reported church zoning cases; these denominations plus unaffiliated churches account for less than a quarter of the population but more than two-thirds of reported church zoning cases.  Adherents to the Jewish religion, for example, account for about two percent of the population but twenty percent of the reported church zoning cases.

The zoning process disproportionately excludes small and unfamiliar faiths. This discrimination is often unprovable in any individual case, but when large numbers of cases are examined, the pattern is clear.  The process of administering zoning laws and designating landmarks are highly individualized. That is reason we need RLUIPA.

Thank you to my new friends in the State Bar of Arizona for inviting me to its annual meeting and for the opportunity to walk through the statute, the case law and real life examples of RLUIPA land use cases. If you would like my power point presentation, or have additional questions regarding RLUIPA, please feel free to contact me.

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