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.
The running legal battles in these “zoning wars” led Congress in 2000 to pass the Religious Land Use and Institutionalized Persons Act (RLUIPA), which is designed in large part to protect houses of worship from discrimination. 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.”
Since then, many RLUIPA cases have been decided in court, and several challenges have worked their way up through the judicial system.
Now a series of recent court rulings on RLUIPA, including two by the U.S. Supreme Court, could tilt the balance and reshape the geography of America’s congregational life.
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. (Read the decision).
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. (Read a ReligionLink issue on the decision.)
In addition, legal experts say 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 may be the next 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. Challenges are expected.
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?
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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.
With RLUIPA, Congress sought to avoid those pitfalls by tying the law’s enforcement power to Congress’ fiscal authority on prisons and by confining the religious accommodation aspects solely to land-use issues.
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 the land use battles over houses of worship are unusual in that they affect denominations across the spectrum. New immigrant groups seeking to build their own temples or churches or mosques can face strong local opposition. But established faiths that are moving from cities to suburbs can elicit opposition to their building plans, too. Bias is not necessarily behind it, observers say. Opposition can often come from members of a congregation’s own religion.
Quality-of-life issues often come into play, as residents say they do not like the weekend influx of traffic to local houses of worship, or the fact that the buildings are often unoccupied much of 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.
• The Beckett Fund for Religious Liberty has a primer on land use issues as well as an informational RLUIPA web site that provides a list of relevant cases, background, law review articles and other material.
• Read the transcript of a March 17, 2005, Pew Forum expert panel discussion on RLUIPA, titled “To What Extent Can Congress Regulate Religious Freedom at the State Level?”
• Read a Pew Forum legal backgrounder on RLUIPA.
• See a list of attorneys and groups that either represent the principals in Cutter v. Wilkinson or that have filed amicus briefs.
• The First Amendment Center’s outline of the Cutter case includes hotlinks to briefs filed and the parties involved.
• Read a June 23, 2005, New York Times story about the U.S. Supreme Court’s decision in Kelo v. City of New London (Conn.)
• Read a Feb. 16, 2005, Christian Science Monitor story focusing on the eminent domain issues in the Kelo v. the City of New London case.
• A position paper from the Claremont Institute for the Study of Statesmanship and Political Philosophy, titled “Faith-Based, Not Bureaucracy Bound: How Religious Institutions Can Fight Government Regulations” is a popular outline of the issues among conservative supporters of RLUIPA and the rights of religious congregations.
• Read a May 2, 2005, New York Times story, “Praying for a Bigger Church. Suing, Too.”
• Read a June 26, 2005, New York Times story about legal battles that pit property rights against religious rights.
National sources
• Roman P. Storzer is a Washington lawyer who has represented dozens of religious groups on land use cases and is one of the country’s most experienced litigators in this field. Contact 202-857-9766, storzer@churchrights.com.
• The National League of Cities has argued on behalf of New London in the Kelo case. The league opposes RLUIPA as burdensome to municipalities. Contact Veronique Pluviose-Fenton, principal legislative counsel, 202-626-3029, Pluviose-Fenton@nlcmutual.com, or the director of media relations, Sherry Appel, at 202-626-3003, appel@nlc.org.
• Dana Berliner is an attorney at the Washington-based Institute for Justice, a libertarian-oriented law firm representing property owners in the Kelo case. Contact 202-955-1300, dberliner@ij.org.
• Ken Masugi is director of the Claremont Institute’s Center for Local Government in Claremont, Calif., and is author of the paper “Faith-Based, Not Bureaucracy Bound: How Religious Institutions Can Fight Government Regulations.” Contact 909-621-6825, kmasugi@claremont.org.
• The Rev. Barry Lynn is head of Americans United for Separation of Church and State, which filed an amicus brief on behalf of the RLUIPA. Contact 202-466-3234, americansunited@au.org.
• Brad Dacus is president of the Pacific Justice Institute of Sacramento, Calif. The institute is a religious liberty advocacy group that has litigated on behalf of churches, such as the Independent Baptist Church of Sacramento, in land use cases. Contact 916-857-6900, braddacus@pacificjustice.org.
• Derek Gaubatz is senior legal counsel at the Becket Fund for Religious Liberty, an interfaith law firm that aggressively litigates cases involving federal or state religious constitutional issues. He has devoted much of his career to supporting religious freedom. He has authored several briefs that Becket has submitted in cases where religious liberty, particularly RLUIPA, is challenged, and he wrote a forthcoming law review article on the act. Contact 202-955-0095, dgaubatz@becketfund.org.
• Gregory S. Baylor directs the Christian Legal Society‘s Center for Law and Religious Freedom and serves as chief litigation counsel for Religious Liberty Advocates. The legal society, which is based in Annandale, Va., filed an amicus brief in the Cutter case. Contact 703-642-1070, gbaylor@clsnet.org.
• John W. Whitehead is president and founder of the Rutherford Institute, a Christian defense organization based in Charlottesville, Va., that filed an amicus brief in the Cutter case. Contact through Nisha Mohammed, 434-978-3888, nisha@rutherford.org.
• Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law at the George Washington University Law School and an expert on church-state issues. He took part in the March 2005 Pew Forum panel. Contact 202-994-7053, iclupu@law.gwu.edu.
• Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. Hamilton represented the city of Boerne, Texas, in a successful challenge to the Religious Freedom Restoration Act, the predecessor to the RLUIPA. In amicus briefs she represents organizations opposed to RLUIPA. Contact 212-790-0215 or 215-353-8984, or hamilton02@aol.com.
• Douglas Laycock is a law professor at the University of Texas at Austin. Laycock is a nationally known expert on church-state issues, and he filed an amicus brief in support of the RLUIPA on behalf of the National Association of Evangelicals and the Union of Orthodox Jewish Congregations of America. Contact 512-232-1341, dlaycock@mail.law.utexas.edu.
• The Rev. Richard Cizik is vice president for governmental affairs of the National Association of Evangelicals. The association has filed an amicus brief supporting RLUIPA in the Cutter case. Contact 202-789-1011, rcizik@aol.com.
• Michael Lieberman, Washington counsel for the Anti-Defamation League, says that this case and the recent history of many disparate groups working together for religious liberty have made a number of unlikely allies, allowing people to become friends across partisan lines. The ADL has a long history of working for religious freedom. Contact 202-261-4607, mlieberman@adl.org.
• Marc D. Stern is co-director of the Commission on Law and Social Action of the American Jewish Congress. In the late 1990s the AJC organized the Coalition for the Free Exercise of Religion, which supported the Religious Freedom Restoration Act, predecessor law to RLUIPA. Contact 212-879-4500, communications@ajcongress.org.
• Eliot Mincberg is legal director of People for the American Way. Mincberg co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise of Religion. Contact 202-467-4999.
• Attorney Gene Schaerr helped draft RLUIPA, testified on its behalf before Congress and has been heavily involved in defending it. He co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise of Religion, the driving force behind the law in Congress. Contact 202-736-8141, schaerr@sidley.com.
• David Fathi is senior staff counsel at the ACLU National Prison Project, based in Washington, D.C., which litigates to enforce the Constitution for those in prison. He has been deeply involved in supporting RLUIPA. The ACLU filed an amicus brief with Americans United. Elizabeth Alexander is project director. Contact 202-393-4930, dfathi@npp-aclu.org.
Regional sources
• David Wayne Machacek is a visiting assistant professor of public policy at Trinity College in Hartford, Conn. He specializes in church-state relations and is the co-author of Religion on Trial: How Supreme Court Trends Threaten Freedom of Conscience in America (Altamira Press, 2004). Contact 860-297-4233, david.machacek@trincoll.edu.
• David Hollenbach is a professor in the theology department at Boston College. He has written widely on issues related to religious freedom, church-state relations and the role of religion in promoting the common good. Contact 617-552-8855, Hollenbach@bc.edu.
• Steven Byrne is the town attorney for New Milford, Conn., which is involved in a neighborhood dispute involving worship services at a home, with neighbors complaining of parking problems. The case, Murphy v. Zoning Commission of the Town of New Milford, is before the 2nd U.S. Circuit Court of Appeals. See a case description at the Becket Fund site. Reach Byrne through the town zoning office, 860-355-6095.
• The American Center for Law and Justice in Washington is a leading religious legal advocacy group that frequently litigates on behalf of Christian groups on land use issues. Jay Sekulow heads the ACLJ. Contact through Gene Kapp, 757-226-2489, kappcom@mindspring.com.
• Nathan J. Diament is director of the Institute for Public Affairs, Union of Orthodox Jewish Congregations of America, in New York. He defended RLUIPA at a March 17, 2005, Pew Forum panel. Contact 212-613-8123, ipa@ou.org.
• 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. Contact 973-642-8843, carmelan@shu.edu.
• Melissa Rogers is a visiting professor of religion and public policy at Wake Forest University in Winston-Salem, N.C. Rogers was a leader in the coalition that urged Congress to pass RLUIPA. She is an expert on church-state issues, having previously been founding executive director of the Pew Forum on Religion and Public Life and general counsel of the Baptist Joint Committee on Public Affairs. Contact 336-758-5121 or 202-904-4936, rogersm@wfu.edu.
• Mathew D. Staver is president and general counsel of Liberty Counsel, a civil liberties education and legal defense organization specializing in freedom of speech and religious freedom and based in Orlando, Fla. Contact 407-875-2100, liberty@lc.org.
• Richard Schragger is an associate professor of law at the University of Virginia School of Law and an expert in land use issues who took part in the March 2005 Pew Forum panel on the RLUIPA. Contact 434-924-3641, schragger@virginia.edu.
• Miami attorney Steven Ginsburg represented Surfside, Fla., in a dispute between the town and Midrash Sephardi, a small Orthodox Jewish congregation, over its use of a meeting space in a commercial area. The 11th U.S. Circuit Court of Appeals ruled in 2004 that Surfside’s zoning ordinance, which excluded houses of worship from areas where private clubs and lodges were allowed, violated RLUIPA’s “equal terms” provision. Read an April 23, 2004, article in the Miami Daily Business Review posted at Law.com. Contact Ginsburg, 305-860-7067, SDG@adorno.com.
• Paul Joseph Weber is in the political science department at the University of Louisville in Kentucky. He is an expert in church-state relations and judicial politics. Contact 502-852-3305, paulweber@louisville.edu.
• Jeffrey L. Ballon is rabbi of Temple B’nai Sholom in Huntsville, Ala. In 2003, the temple and the city ended a protracted dispute over the temple’s efforts to demolish adjacent houses it owned in order to expand. The temple had filed suit, charging violations of RLUIPA and Alabama’s Religious Freedom Amendment. The city, in settling, included language stipulating that it does not concede that RLUIPA and the freedom amendment are “valid laws.” Contact Ballon, 256-536-4771, hsvtbs@aol.com.
• Peter Joffrion is the city attorney of Huntsville and can discuss the case from the city’s view. Contact 256-427-5026, Peter.Joffrion@hsvcity.com.
• 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, richard.saphire@notes.udayton.edu.
• 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. Contact 651-962-4918, tcberg@stthomas.edu.
• 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. Contact 414-288-5362, scott.idleman@marquette.edu.
• Alan C. Weinstein, professor of law and urban studies at Cleveland State University in Ohio, can discuss a “torrent” of land-use cases adjudicated under RLUIPA. Contact 216-687-3758.
• The Liberty Legal Institute is a legal firm based in Plano, Texas, that advocates for the rights of religious groups in land use and other cases. Contact Joan Padgett for references to institute attorneys, 972-423-3131, libertylegal@libertylegal.org.
• Alan E. Sears is president of and legal counsel for the Alliance Defense Fund, a Christian legal organization that defends religious freedom. The organization is based in Scottsdale, Ariz. Contact 1-800-835-5233, asears@alliancedefensefund.org or info@telladf.org.
• Frederick Mark Gedicks teaches constitutional law at Brigham Young University’s J. Reuben Clark Law School in Provo and has written about religious freedom and the Establishment Clause. He has taught a symposium about land use controls and RLUIPA. Contact 801-422-4533, gedicksf@lawgate.byu.edu.
• Shelley Ross Saxer is a law professor at Pepperdine University Law School 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.” Contact 310-456-4611, Shelley.Saxer@pepperdine.edu.
• 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. Contact 530-752-2586, aebrownstein@ucdavis.edu.
• Jesse H. Choper is 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 has appeared on CBS Evening News, PBS News Hour and Nightline. Contact 510-642-0339, choperj@law.berkeley.edu.
