Albany Government Law Review

The First Amendment plainly reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), establishing a general rule that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person . . . .” To RLUIPA’s supporters, the act is an important step toward protecting America’s “robust history of religious tolerance” and the promise of the First Amendment’s religious freedom clause; RLUIPA simply levels the playing field between religious and secular land users. To others, RLUIPA unjustly favors religious institutions over the valid interests of neighboring, secular, land users. Those who take this view often question both the need for and constitutionality of RLUIPA

There is nothing more local than land, and state and local communities have been entitled to significant autonomy in crafting their land use priorities. This principle of deference has been stated repeatedly in Supreme Court decisions across a large swath of settled doctrine addressing takings, telecommunications, environmental law, and fair housing. In the absence of intentional discrimination, constitutionally mandated deference to local governments reaching land use determinations has been applied in cases involving any and all landowners, religious or otherwise. Without taking heed of this constitutional doctrine, in 1993 and 2000, members of Congress chose to impose federal control over local land use to benefit one category of land owners. With the Religious Freedom Restoration Act of 1993, which applied to every law in the country, and the Religious Land Use and Institutionalized Persons Act of 2000, which targeted state and local land use laws, Congress negated the constitutional rule of federal deference to local land use law and created a privileged class of landowners and developers – those that are religious. It did so by giving them the extraordinary benefit of strict scrutiny against neutral, generally applicable local and state land use laws whenever the land use applicant is religious.