When Congress passed the Religious Land Use and Institutionalized Persons Act in 2000 (RLUIPA), the legislative history indicates that the Act was clearly not meant to exempt religious organizations from local land use and zoning regulations, but was rather meant to ensure that governments did not treat religious groups in a discriminatory fashion.  A lengthy body of caselaw is developing across the country to address items that Congress left out in the statute – starting with what exactly constitutes a religious use, and what constitutes a “substantial burden” on the exercise of religion (the statutes forbids such actions absent a compelling governmental interest). 

Although many municipal officials would like to see RLUIPA declared unconstitutional, this is not likely to be the case. In 2005, the U.S. Supreme Court upheld the constitutionality of the “institutionalized persons” part of the statute (see, Cutter v. Wilkinson, 544 U.S. 709), and in a footnote indicated that they were not addressing the constitutionality of Section 2 of the Act, or the land use part.  While some view this as an invitation to bring the case to the Court, in my opinion the Court was following practice and deciding only the narrowest issue on the facts before it.   

Unfortunately, the very Act that was designed to prevent discrimination, is responsible for bringing out discriminatory public comments when religious organizations attempt to site various land uses across the country. This may be due, in part, to cavalier attempts by some religious groups to totally circumvent local comprehensive plans and zoning laws by marching behind the RLUIPA banner and claiming (incorrectly) that local land use laws do not apply to them; and/or it may be a sad state of affairs that discrimination and intolerance are rearing their ugly heads.

Religious schools, affordable housing projects, mega churches, radio towers, senior housing projects, parks, camps and daycare facilities are examples of the types of uses that religious organizations are attempting to bring under the RLUIPA umbrella.  Some have been invited in by the Courts, and others have not.  Many of these types of ancillary religious uses extend far beyond the traditional churches, mosques, synagogues and other houses of worship that many associate with the notion of religious uses.

As national advocacy organizations join with religious organizations in the enforcement of RLUIPA (see, The Beckett Fund for Religious Liberty at www.rluipa.org ), local governments are beginning to pass resolutions asking Congress to re-visit RLUIPA (see, http://www.preserveramapo.org/Preserve%20Ramapo%202007/scorecard_rluipa.htm ).  

Another interesting aspect of the RLUIPA debate centers on the traditional notions of separation of Church and State.  Aside from definitional problems and the boundaries of how far government can go in deciding what is and what is not a religion and what constitutes the exercise of religion, now the Department of Justice has aggressively joined forces in enforcement of RLUIPA.  For example, in February 2007, Attorney General Alberto Gonzalez released a report on DOJ’s First Freedom Project (see, www. firstfreedom.gov).  This follows the creation of the position of special counsel for religious discrimination and the creation of a department-wide Religious Freedom Task Force. The Attorney General also announced this year that DOJ will be conducting regional training workshops providing education materials for religious organizations, civil rights groups and community leaders. 

 Municipal officials are understandably experiencing intimidation and concern over the threat of significant legal fees (if the local government loses a RLUIPA case, it must pay not just its own legal fees, but the legal fees of the religious organization).  However, where there is sound community planning, backed by a legitimate comprehensive land use plan including laws that implement that plan, and where decisions are not made in a discriminatory fashion and where decisions do not treat religious organizations on less than equal terms with non-religious groups, local government officials should be more confident in their ability to legitimately and appropriately exercise their police powers when it comes to making individualized determinations on land use applications from religious organizations.