Turf battles: houses of worship v. zoning laws

Since the nation’s founding, houses of worship have been viewed as a cornerstone – literally – of the prototypical American community. The church steeple was considered as much a part of the town square as the schoolhouse or corner pharmacy. But in recent years, an increasing number of congregations that sought to build or expand their facilities have faced repeated challenges from local officials and residents who now, for various reasons, often do not want houses of worship in their neighborhoods.

Plans to build or expand mosques sparked controversy across the country in 2010, and news coverage has often focused on these disputes and cast them as symptomatic of a wider friction between Muslims and other Americans. But zoning issues are dogging efforts by all religious groups to build houses of worship.

These tensions flare even a decade after Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), a law that sought to balance two fundamentally American concepts that are often in conflict: the right to religious freedom and the authority of local governments. The law states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a non-religious assembly or institution.”

Congress approved RLUIPA (the cumbersome acronym is pronounced ar-LOO-pah) in 2000 as a means of protecting worship and other religious land uses from discrimination and burdensome zoning restrictions. The law also is meant to protect the religious freedom of people institutionalized in prisons, mental health facilities and state-run nursing homes.

But it is in the construction or expansion of houses of worship – long considered an anchor of town squares across the United States – that RLUIPA and its effects are felt most widely.

Background

RLUIPA was passed in 2000 as a successor to the Religious Freedom Restoration Act, the 1993 law that the Supreme Court declared unconstitutional in a landmark 1997 decision, City of Boerne v. Flores. The court said Congress had exceeded its federal authority by setting mandates on a broad range of local and state policies.

Congress sought to avoid this problem with RLUIPA by tying the law to Congress’ fiscal authority over prisons and confining its religious protection to land use issues. But experts say the law remains vulnerable on federalism and church-state questions. Opponents argue its religious protection discriminates against secular organizations.

Still, experts say the act could be vulnerable on issues of federalism – that is, the rights of states versus those of the central government – and on church-state questions. Opponents argue that providing accommodation for houses of worship on the basis of religion discriminates against secular institutions.

Experts say RLUIPA conflicts are unique because they reach across the religious spectrum. New immigrant groups eager to expand can face the same opposition as established faiths ready to reach from cities to suburbs. Often bias is not behind the opposition, experts say, but quality of life concerns over traffic and large buildings that remain vacant through the rest of the week. Some municipal officials – and many taxpaying voters – also object to the tax exemptions that religious congregations receive, and they try to develop congregational parcels into taxable commercial or residential property.

Important cases

A February 2005 unanimous opinion by the 7th U.S. Circuit Court of Appeals in the Wisconsin case of Sts. Constantine and Helen Green Orthodox Church v. City of New Berlin was a major litmus test for RLUIPA. The court ruled that the city substantially burdened the church’s right to the free exercise of religion by refusing to let the congregation use its own land to build a new church.

On May 31, 2005, in the case of Cutter v. Wilkinson, the Supreme Court ruled unanimously to uphold RLUIPA’s protection of prisoners’ right to practice their religion. The court ruled that the prison must accommodate inmates’ religious beliefs – in this case, Satanists and Wiccans. Although the court was dealing largely with the “institutionalized persons” portion of the act, its ruling could undermine or bolster RLUIPA’s language on land use issues.

On June 23, 2005, the Supreme Court ruled 5-4 in Kelo v. the City of New London (Conn.), that governments have broad rights to take private property for purposes that are seen to benefit the city as a whole. The decision surprised some by more broadly defining “public use” as “public purpose” – such as, in this case, private development that is expected to foster economic development that will benefit the city. The ruling allowed New London to proceed with replacing a failing neighborhood with offices, a conference hotel, new residences and a public “river walk.” Some observers said this could encourage local governments to evict houses of worship in order to find a taxpaying owner.

The Justice Department, in a September 2010 report issued on the law’s 10th anniversary, asserts the number of RLUIPA investigations involving Jewish, Muslim and Buddhist groups is 13 times these denominations’ representation in the general population. Half of the investigations involving Christian groups also involve racial and ethnic minorities.

Nonetheless, the U.S. Supreme Court in January 2011 declined to weigh in on a 7-year-old RLUIPA conflict involving the Rocky Mountain Christian Church in Boulder. The inaction lets the congregation expand but also allows confusion to linger over the law, says Patricia Salkin, an expert on land use law at the Albany Law School in New York.

“There are a bunch of issues with respect to RLUIPA where the circuit courts are in conflict,” Salkin told the Boulder Daily Camera. “Anytime you have the circuit courts in conflict it’s ripe for the Supreme Court to take a look at it if they choose.”

In early 2011, the law was at the center of emotional disputes involving the construction and expansion of mosques in New York, Tennessee, California and elsewhere. But in the 10 years since the law was enacted other disputes have reached across the religious spectrum, involving for instance a Christian church in Boulder, Colo.; an Orthodox Jewish school in Mamaroneck, N.Y.; and a Vietnamese Buddhist congregation in Garden Grove, Calif. Often the disputes involve quality of life concerns raised by residents wary of the traffic and noise generated by large places of worship.

Why it matters

These disputes involve crucial matters of both constitutional principle and communal practice.

The constitutional arguments concern such central issues as the separation of church and state, the Establishment Clause and the boundaries of government accommodation of religion.

But the cases also have a major impact on the practice of faith in America. With more than 300,000 congregations across the country, many communities already have experienced zoning conflicts, and almost every community could eventually be affected by the RLUIPA decisions. The flashpoints run from building permits for new houses of worship to the use of church bells in landmark steeples to parking privileges on days of worship. Inner-city congregations are affected, but the greatest impact may be in outlying areas due to the explosive growth of suburban houses of worship, particularly megachurches and religious “campuses” that often resemble malls as much as sanctuaries.

The issue also presents a notable paradox: Even as Americans increasingly say they want society to reflect religious values, they are apparently much less enthusiastic about hosting religious congregations in their neighborhoods.

The current Supreme Court cases are also novel in that they have brought together traditional foes from the left and right – such as the American Civil Liberties Union and the American Center for Law and Justice – who have argued on behalf of the RLUIPA.

Questions for reporters

  • How does the religious makeup of your community affect property conflicts over houses of worship? Is it a homogeneous community with religious newcomers? Or a diverse community struggling to accommodate each other’s needs?
  • Why did a dispute wind up in court, or in a public argument? Were any means of conflict resolution used to try to defuse the problem? What would the religious teachings of the congregation involved say about such disputes?
  • What are the larger trends sparking the controversy? Is it a matter of a congregation adding multimedia halls or athletic facilities in order to accommodate young people and families? Or is it an older church trying to preserve its traditions, perhaps by including a cell phone antenna in its bell tower to help defray renovation costs?
  • In what ways does a congregation add to a community? Does it allow other groups to use its facilities? Does it offer services that draw attendees every day of the week? Or is it just a Sabbath-day type of congregation?
  • How do reactions to a property dispute break down politically? Is there a “Red State-Blue State” party divide? Or does the opposition – or support – cross party lines? Is all politics – and religion – local?

Resources

Articles

National sources

  • Ross K. Baker

    Ross Baker is a political science professor at Rutgers University and the author of Strangers on a Hill: Congress and the Court, which examines RLUIPA’s evolution.

  • Dan Dalton

    Dan Dalton is chair of the American Bar Association’s Religious Land Use committee. Corporations, religious entities and individuals around the nation call on him to assist with complex zoning matters, banking issues, business transactions and commercial litigation. He is a frequent author, lecturer and litigator on behalf of religious entities concerned with religious land use matters and is called upon to advise corporations when involved with significant litigation matters.

  • Marci A. Hamilton

    Marci A. Hamilton is the Robert A. Fox Leadership Program Professor of Practice at the University of Pennsylvania. She is also the founder, CEO and academic director for Child USA, a nonprofit think tank aimed at ending child abuse. Hamilton, who began her career as a lawyer, is an expert on child sex abuse statutes, as well as law and religion. She is author of God vs. the Gavel: The Perils of Extreme Religious Liberty.

  • Elizabeth Merritt

    Elizabeth Merritt is deputy general counsel at the National Trust for Historic Preservation.

  • National League of Cities

    The National League of Cities is a national advocacy group representing some 19,000 cities, villages and towns across the country. Contact Gregory Minchak or Amanda Straub.

  • Thomas E. Perez

    Thomas E. Perez is assistant attorney general for the civil rights division of the Justice Department.

    Contact: 202-514-4609, 202-626-3015.
  • Eric Rassbach

    Eric Rassbach is deputy general counsel at the Becket Fund for Religious Liberty.

  • Patricia Salkin

    Patricia Salkin is an expert on land use law and is dean of Touro College Jacob D. Fuchsberg Law Center in Central Islip, N.Y.

  • Gene Schaerr

    Attorney Gene Schaerr helped draft RLUIPA, testified on its behalf before Congress and has been heavily involved in defending it.

  • Herb Silverman

    Herb Silverman is president emeritus of the Secular Coalition for America. He speaks and writes frequently on topics dealing with freethought and atheism.

    The coalition has a position paper opposing RLUIPA.

    Contact: 202-299-1091.
  • Erik Stanley

    Erik Stanley is senior legal counsel for the Alliance Defense Fund.

    Contact: 480-444-0020.
  • Roman P. Storzer

    Roman P. Storzer is a leading RLUIPA attorney in Washington, D.C., who has represented dozens of religious groups on land use cases and is one of the country’s most experienced litigators in this field.

  • Robert Tuttle

    Robert Tuttle is a professor of law and religion at George Washington University and the former co-director of the Legal Tracking Project of the Roundtable on Religion and Social Welfare Policy, which researched government funding of faith-based social service programs. He co-authored, along with Ira C. Lupu, Secular Government, Religious People.

Regional sources

In the Northeast

  • Dana Berliner

    Dana Berliner is an attorney at the Institute for Justice, a libertarian-oriented law firm near Washington, D.C.

  • Angela Carmella

    Angela Carmella is a law professor at Seton Hall University in Newark, N.J., and has written widely on property rights issues and zoning issues from the perspective of religious congregations. She was an editor of Christian Perspectives on Legal Thought.

  • Nathan J. Diament

    Nathan J. Diament is director of the Institute for Public Affairs, Union of Orthodox Jewish Congregations of America, in New York.

  • Charles Haynes

    Charles C. Haynes is the founding director of the Religious Freedom Center at the Freedom Forum Institute. He writes and speaks extensively on religious freedom and faith in public life, specializing in church-state conflict related to public schools.

     

  • David Hollenbach

    David Hollenbach is a professor of theology at Boston College as well as the University Chair in Human Rights and International Justice and director of the Center for Human Rights and International Justice. He has written widely on issues related to Christian ethics, religious freedom, church-state relations and the role of religion in promoting the common good. He is the author of The Global Face of Public Faith: Politics, Human Rights and Christian Ethics.

  • Ira C. Lupu

    Ira “Chip” Lupu is F. Elwood and Eleanor Davis Professor of Law at the George Washington University Law School and a church-state expert who writes frequently about the faith-based initiative. In a January 2009 Q-and-A with the Pew Forum on Religion & Public Life, Lupu said that the trend has been toward greater church-state partnerships.

  • Jay Sekulow

    Jay Sekulow is chief counsel at the American Center for Law and Justice in Washington, D.C., a leading pro-life religious legal advocacy group that frequently litigates on behalf of religious groups.

  • Scott L. Thumma

    Scott L. Thumma is a sociology of religion professor at Hartford Seminary in Connecticut, where he also directs the Hartford Institute for Religion Research. He studies megachurches, nondenominational Christianity and congregational trends.

    He has given interviews on RLUIPA.

In the South

  • Bryan K. Fair

    Bryan K. Fair is a professor at the University of Alabama School of Law, where his specialties include the First Amendment.

  • Douglas Laycock

    Douglas Laycock is a professor of law and religious studies at the University of Virginia and an authority on religious liberty. He’s currently working on a book about religious freedom, free speech and the establishment clause.

  • Liberty Institute

    The Liberty Institute is a legal firm based in Plano, Texas, that advocates for the rights of religious groups in land use and other cases.

  • Thomas R. McCoy

    Thomas R. McCoy is a professor of law emeritus at Vanderbilt University in Nashville, Tenn. He retired from the university in 2008 but continues to speak frequently on First Amendment issues and advises the Freedom Forum’s First Amendment Center.

  • Melissa Rogers

    Melissa Rogers is a nonresident senior fellow in governance studies for Brookings, where she specializes in the First Amendment’s religion clauses and religion and faith-related political issues. She previously served as special assistant to President Barack Obama and executive director of the White House Office of Faith-based and Neighborhood Partnerships. She was a leader in the coalition that urged Congress to pass the Religious Land Use and Institutionalized Persons Act. Arrange an interview through Michaela Broyles.

  • Richard Schragger

    Richard Schragger is a law professor at the University of Virginia and an expert in land use issues.

  • Mathew D. Staver

    Mathew D. Staver is founder and chairman of the Liberty Counsel, a civil liberties education and legal defense organization in Orlando, Fla., that focuses on freedom of speech and religious freedom.

  • John W. Whitehead

    John W. Whitehead is president and founder of the Rutherford Institute, a nonprofit organization in Charlottesville, Va., that works to advance religious freedom through litigation, education and advocacy. Although the institute has a Christian doctrinal statement, its services are not limited to Christians.

In the Midwest

  • Thomas C. Berg

    Thomas C. Berg is a law professor at the University of St. Thomas in Minneapolis. He is a leading expert on church-state issues and has written on religious land use questions. He supports the rights of religious organizations to choose members based on religion and sexual conduct. He has also written about religious speech in the workplace.

  • David Goldberger

    David Goldberger is a law professor emeritus at Ohio State University and was an attorney in a Supreme Court case involving RLUIPA.

  • Scott C. Idleman

    Scott C. Idleman is a law professor at Marquette University in Milwaukee. He specializes in church-state issues, including religious freedom and land use questions.

  • Daniel Lauber

    Daniel Lauber of River Forest, Ill., is a past president of the American Planning Association and has given interviews on RLUIPA.

  • Richard B. Saphire

    Richard B. Saphire is a professor of constitutional law at the University of Dayton in Ohio with expertise in church-state issues, including land use questions.

    Contact: 937-229-2820.
  • Alan C. Weinstein

    Alan C. Weinstein is a professor of law and urban studies at Cleveland State University in Ohio.

In the West

  • Alan E. Brownstein

    Alan E. Brownstein is a professor of constitutional law at the University of California, Davis. He is a nationally known expert on religious freedom issues and has written widely about religious land use issues and states’ rights.

  • Jesse H. Choper

    Jesse H. Choper is emeritus professor of public law at the University of California, Berkeley. He is an expert on church-state issues and U.S. Supreme Court decisions regarding religion. He is the author of Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. He was a law clerk for Chief Justice Earl Warren.

  • Brad Dacus

    Brad Dacus is president of the Pacific Justice Institute of Sacramento, Calif. The institute is a religious liberty advocacy organization that has litigated on behalf of churches such as the Independent Baptist Church of Sacramento in land use cases.

  • Frederick Gedicks

    Frederick Gedicks is an expert on law and religion who teaches at Brigham Young University’s J. Reuben Clark Law School. His current research focuses on how the Supreme Court’s 2014 ruling in Burwell v. Hobby Lobby Stores Inc. affected religious accommodation statutes.

  • Anthony Gill

    Anthony Gill, professor of political science at the University of Washington in Seattle, researches church-state relations from a microeconomic perspective. He teaches a course on religion, politics and economics. His books include Rendering Unto Caesar: The Catholic Church and the State in Latin America. Gill conducts research on community efforts to restrict the property rights of religious groups. He wrote a paper on the subject for the Association of Religion Data Archives.

  • Shelley Ross Saxer

    Shelley Ross Saxer is a law professor at Pepperdine University in Malibu, Calif. She has written widely on land use issues, including a 1995 Kentucky Law Journal article, “When Religion Becomes a Nuisance: Balancing Land Use and Religious Freedom.”

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