ZONING LAWS AND THE EXERCISE OF RELIGION
The federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides that the government may not implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates two things: that imposition of the burden on that person, assembly, or institution is both in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that interest.
In applying the standards of the Act, courts have held that various activities, whether or not central to an individual’s belief system, are a “religious exercise” within the meaning of the RLUIPA. If individuals are forced to modify the religious exercise, courts have tended to find that the governmental regulation has created a substantial burden within the meaning of the Act. Nevertheless, where an individual is still left with the ability to choose another method that will not seriously affect the religious practice, or the action taken only tangentially impacts the religious exercise, courts have held that there is no substantial burden.
In deciding whether or not to uphold the governmental regulation, courts have analyzed the interest the governmental unit had in creating the regulation to see if it is a compelling one. For example, significant health and safety considerations may be found to be compelling public interests. Even a finding of a compelling interest does not end the analysis. The regulation employed must be the least restrictive means to meet that interest, as required by the Act.
The governmental entity may change its regulations to alleviate the burden on religious exercise and thereby avoid the prohibitory effects of the Act. For example, the government may escape the prohibitions by retaining most of its land use policies or practices, but adding exemptions for applications that substantially burden the exercise of religion. In addition, the RLUIPA will not apply in the first place if the governmental unit acted pursuant to some authority other than a law on zoning or the designation of landmarks.
In the Courts
A recent case demonstrates that it is not enough to invoke the protections of the RLUIPA that a proposed land use is connected in some way with a church or religious group. A church brought an action under the RLUIPA challenging a municipality’s refusal to permit it to operate a day‑care facility with a component of religious instruction in a low‑density residential neighborhood.
According to the federal court that decided the case, the RLUIPA does not require the religious activity that was substantially burdened by the land use regulation at issue to be “fundamental” to a religion. Still, the church’s claim failed because the jury found that the church did not prove that it was engaged in a “sincere exercise of religion” in seeking a variance to operate the day‑care center.
The church’s case was hurt by its bishop’s admissions, in a letter responding to the church pastor’s request for help, that the day‑care center appeared to be more of a traditional commercial venture and less of a religious function.