A Primer on RLUIPA

Gary Mortara, pastor at the Faith Fellowship Church in San Leandro, CA, wanted to move his congregation into a bigger building (PDF). The plans he submitted to the city, though, called for use of a building located in an area of town that was zoned for a job promotion initiative and did not permit religious assembly, so Mortara’s plans were rejected.

Gary Mortara's image, courtesy of his own church

Done deal, right? Not so fast.

This is where the Religious Land Use and Institutionalized Persons Act comes in. The act, otherwise known as RLUIPA (perhaps the least-helpful acronym ever), requires that, if the government imposes a substantial burden on a landowner’s sincerely-held religious beliefs, then the government must show that it is acting in furtherance of a compelling state interest, and that it has pursued that interest in the least restrictive way possible.

While this seems like a pretty big boon to house-of-worship owners everywhere, RLUIPA actually replaced an earlier statute that allowed local governments even less authority to enact laws that burdened religious activity (that earlier statute was declared unconstitutional).

RLUIPA poses, in my opinion, a handful of interesting questions, both legal and political (only two of which I’m mentioning here).

First: why was Congress so emphatic about getting this law on the books? The Supreme Court had already noted: “It is difficult to maintain that [laws that impact religion] are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.” In other words: Religion doesn’t really have anything to worry about here.

The easy answer is that it’s all politics. This is a very religious country, and voting for laws that help religion helps one’s career. (To be honest, I think that in this case the easy answer is the right answer.)

But for the sake of argument, I wonder if that’s too simple, which leads me to…

Second: What is the proper balance between the Establishment Clause and the Free Exercise Clause? Most of us reading this website are somewhat partial to the Establishment Clause (I know I am), so it’s easy for me to say, “Balance? What balance? This isn’t the 18th century, so let’s just focus on keeping religion out of the government and call it a day.” But the freedom to worship is inextricably linked to the freedom NOT to worship. It is also deeply connected to freedom of speech. Not only can we say what we want, but we can believe what we want, too. So perhaps it’s important to ensure that local governments aren’t phasing out unpopular religious groups through questionable “zoning regulations.” All I know is that atheists are fighting an uphill battle, and it’s one we’ll never win without the First Amendment.

So how do we walk the line between using the Establishment Clause to our advantage, without forgetting that the Free Exercise Clause isn’t going anywhere?

And what will become of Pastor Mortara? The Supreme Court declined to hear his case, and the 9th Circuit has held that summary judgment in favor of the city was improper. This means that, unless a settlement is reached, Mr. Mortara’s case is going to trial. Stay tuned.

About katherine

Born in Texas, Katherine is now a lawyer in the northwestern United States.

  • Ducky

    Holy shit, that’s the best picture he has?!? My creeper alarm is going haywire! Also, why oh why does religion need more protection than it already has? Are these guys truely afraid that they’ll have to play by the same rules and standards as the rest of us feebs?

  • http://twitter.com/Skepgineer skepgineer

    zoning laws are crap, whether they’re applied to religion or whatever.  Let people build what they want on their own land, modulo pollution/noise.

  • Trace

    Be a Man?

  • Abram Larson

    “I want jobs, jobs, jobs, whatever it takes to put people to work,” 
    says John Faria, a former mayor and Chamber of Commerce 
    president who opposed Mr. Mortara’s project. “And churches 
    don’t put people to work.”

    This should be the deciding factor. that part of town is specifically zoned to be used for  business who create jobs. If Faith Fellowship Church could show how many jobs would be created by allowing them to purchase the building, they wouldn’t even have a problem. However, they won’t create any jobs, so they are seeking a special exemption from the zoning laws. I’d say they would deserve it if the new location happened to be pretty close to the old location since lots of people go to church close to their home. However, looking at the pdf, the new location is not close to the old one. 

    In this particular case, it purely is the religious seeking special privileges based solely on religion.

  • David

    I live in the area, and have been following this.  You’re missing the really fun twist.  The church wanted to move to an industrial zoned region, bought a property there ($4M, IIRC), *then* applied for a zoning exemption.  The city said “no, we like tax revenue”, so the church sold the property (in a down market) at a loss.  Now they’re suing the city for the loss.

  • Anonymous

    So they are rich enough to buy a 4 million dollar property, but then to cheap to pay taxes on their business? Or is it about the city rather wanting the money from another business there instead?

  • Anonymous

    As long as the zoning laws apply to all religions equally without favouritism , there is no issue.   If at a later date they do issue a waiver to another religious entity under the same circumstances there may be a case.  Freedom of Religion doesn’t mean freedom from laws and community standards.

  • Rich Wilson

    Just a general comment that I’m really glad Hemant found a lawyer to guest blog.  There are a lot of us “IANAL”s on here.

  • Trace

    “….I’m really glad Hemant found a lawyer to guest blog.”

    Me too.

    Hi to our new guest bloggers that have been posting as of late!

  • Secular Planet

    I wrote a law review article on the circuit split on RLUIPA’s equal-terms provision. After having to read it in my head a thousand times while writing the 36-page document, I agree the acronym is almost worthless. Ar-loo-EE-puh.

  • Anonymous

    So, my understanding of this is that the pastor wanted to purchase land that was already intended for another purpose, and now he’s going to the courts because he believes the government is putting an unjust burden on him as a landowner? 

    Doesn’t he not own the land though? How is it placing an unjust burden on him if they’re simply telling him, no, you can’t buy this land, it’s going to be used for something else?

  • gwen

    Hey David! I live in San Leandro too! I somehow missed this brouhaha!

  • Anonymous

    Yeah right! Without “crappy” zoning laws we’d be living in Mexico City, New Delhi, Sao Paolo, Bejing or any of hundreds of urban sprawls built with your neo-libertarian ideology. Shit, when will you simpletons realize that government is one of the greatest accomplishments of our species. It serves to organize, defend (in most cases), arbitrate, provide, and yes, to gather for the common good.  

  • Anonymous

    This is a very simple-minded, know-nothing attitude. It’s not just about pollution and noise – there are many other factors to consider, such as blocking views or blocking out the sun, changes in traffic flow, extra demand for utilities, etc. to name just a few.  Libertarians seem to think we’re still living in the 18th century but the reality is that we live in a very complex and highly interconnected society and there have to be rules to help people get along. The libertarian “every man is an island” dogma only works in fantasy land.

  • Bo Tait

    “Be A Man!” is scheduled to have  a follow up in 2012 titled “Do the right thing!”

  • Katherine

    Hello, and thanks for the welcome!

  • http://www.facebook.com/people/Anthony-Okafor/1759887752 Anthony Okafor

    Short Answer: YES

  • Biacoreguy2008

    Hey you two, I live in the area as well! Anyone down for a skeptic meet up sometime? I still have very few non-religious friends at this point (de-converted about 3 years ago). Oh and I did meet another great guy at TAM in July that is also looking to get plugged into the community around the Bay Area. If you’re interested, hit me up for my email address. Take care!


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