Document Type

Article

Publication Date

8-2024

Abstract

The protection of religious freedom under federal law waxes and wanes, depending on two unpredictable factors: judicial activism and congressional action. A review of dozens of cases involving alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), including two recent cases heard by the Supreme Court and the Fourth Circuit, reveals for the first time that many litigants and judges have ignored the congressional injunction to limit the reach of RLUIPA to two (and only two) forms of land-use regulation: zoning and landmarking. Plaintiffs have instead used RLUIPA to challenge water and sewer, septic, fire prevention, building, water pollution, environmental review, and other local and state regulations, as well as the use of eminent domain—all in the name of religious freedom. Central to the resolution of these disputes is the definition of the word “zoning.” Rather than ignoring the issue or taking a holistic approach to the meaning of zoning (and thereby submitting all forms of land use regulation to the most exacting scrutiny should they place a substantial burden on the free exercise of religion or otherwise fall under the proscriptions of the Act), courts and counsel need to consult the rich body of case law that describes the discrete substance and structure of American zoning. Adhering to the meaning of zoning as derived from the diverse laboratory of state courts meets the expectation of the bill’s champions in Congress, addresses the problem situations identified by experts who testified on the proposed legislation, and prevents the possibility of using RLUIPA as a strategy for neutralizing effective state and local environmental controls in a time when sustainability, safe structures, and the protection of water supplies rank high on the list of public health and safety needs. If, as a result of the findings in this Article, there should be a strong desire to expand the reach of the Act by amending the definitional section of RLUIPA, there is little likelihood that the near-unanimous support for RLUIPA and its predecessor Religious Freedom Restoration Act (RFRA) would be replicated. A contemporary effort to widen the reach of RLUIPA would very likely fall victim to lawmakers’ (and their constituents’) concerns that certain religious minorities (especially Muslims) are no longer worthy of special legislative protection, that many religious groups and individual believers have been using federal and state statutes designed to protect against religious discrimination as a means for discriminating on the basis of gender and sexual orientation, and that the environmental harms posed by lax enforcement of building codes, clean water, and other regulations outweigh the benefits of expanding RLUIPA’s protections.

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