Before Congress enacted RLUIPA in 2000, the conventional view confirmed by judicial decisions, and lawyers like me, was that religious land uses cases would be rejected. A Harvard Law School survey of reported cases decided on the merits confirmed that religious land use plaintiffs were almost uniformly unsuccessful – whether under the constitutional compelling interest test of Sherbet vs. Varner from 1980 to 1990, the constitutional rational basis test of Smith from 1990 to 1993, the statutory compelling interest test of RFRA from 1993 to 1997, or the restored Smith test from 1997 to 2000. However, district court cases decided under RFRA, the Religious Freedom Restoration Act, suggest that Congress’ codification of the Sherbet standard did have significant effects. Breaking this down into numbers, 97% of all religious land use case were rejected before RLUIPA. Since the enactment of the law in 2000, 50% of the cases result in a positive resolution for religious entities.
Since the advent of RLUIPA, religious land use plaintiffs have been more successful in the federal courts than ever before. Free exercise claimants have won substantial victories on fact patterns no more sympathetic than presented by losing plaintiffs in the pre-Smith area. The Federal District Courts have interpreted the compelling interest test set forth in section 2 (a) (1) of RLUIPA much more vigorously than they did the textually identically constitutional doctrine of Sherbet. And in areas where RLUIPA is broader than Sherbet – for instance, its equal terms provisions in section 2 (b) — courts have applied strict scrutiny as well.
Contrary to some fears, there has not been an explosion of land use cases arising under RLUIPA. If you did an electronic search, you would find over 1000 reported and unreported cases with the term “RLUIPA.” However, if you dig into them, nearly 70% of the cases involve the “institutionalized persons” part of the law and do not involve land use. The pre-RLUIPA and post-RLUIPA land use filings are pretty consistent.
So why then have Courts suddenly become more receptive to religious plaintiffs land use claims? For years, they invoked a strict constitutional test but applied it with great deference. But when Congress wrote RLUIPA into the United States Code and told Courts to apply it broadly, land use plaintiffs began to win lawsuits. RLUIPA thus appears to be an unusually striking vindication of the popular constitutional notion that changing context and ongoing dialogue among the branches of government may impact legal doctrines and outcomes without any change in the relevant text.
But what is the context responsible for RLUIPA’s effects? I think there are a few. First, a weakened 1st amendment free exercise clause by decisions of the Supreme Court. Beginning with the Burger Court in the 1980’s, the Supreme Court has withdrawn the expansion of prior Supreme Court’s interpretation of the free exercise clause, and lower Court’s have read this as a signal to limit its use in the context of religious land use cases.
Second, property rights retrenchments. Throughout the past 20 years, the law is so restricted in asserting land use claims that it is virtually impossible to get to trial and have a decision affirmed on appeal.
And third, the Kelo decision. While not a RLUIPA case, this eminent domain case – where the Court allowed the taking of private property by the state of Connecticut, who then gave it Pfizer Co. for economic redevelopment use, and the resulting negative public response – clearly affected judicial thinking.
RLUIPA recognizes that generally applicable zoning ordinances that are applied to individual parcels of land through a discretionary, case by case, assessment of the proposed use of land will be balanced carefully by the Court. As a result, under RLUIPA’s balanced approach to judicial review of land use decisions, first assessing the plaintiff’s religious land use arguments then objectively reviewing the community’s decisions, the zoning ordinance itself is subject to deferential rational basis review, while the application of the zoning ordinances to an individual parcel of property through an individualized assessment is subject to strict subject review.
RLUIPA’s approach to judicial review of land use regulation harkens back to the facial/as applied dichotomy established by the Supreme Court in its earliest zoning cases. Under this approach, facial challenges to zoning ordinances are reviewed under Euclid’s highly deferential rational basis review, while as applied challenges are more strictly scrutinized under Nectow to ensure that a zoning decision is substantially related to a legitimate governmental interest. By reviving this facial/as applied dichotomy, RLUIPA provides a framework through which to review all as applied land use decision and encourages more meaningful review of those decisions.
The success of RLUIPA suggests that when Courts have expressed a constitutional aspiration by expounding a rights protective doctrinal test that they do not fully enforce, the judicial decisions to delegate constitutional enforcement to Congress, followed by Congress’ re-delegation back to the courts to apply a constitutional enforcement to the Court, that it originally created, might spur Courts to pursue the more vigorous enforcement of background rights they had previously resisted due to concerns about the manageability of the task.
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