RLUIPA; Will local church play its trump card?

In 2000 Congress passed and President Clinton signed into law the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits governments from burdening the free exercise of religion unless it can prove that a compelling government interest is at stake. RLUIPA specifically protects religious groups from zoning or landmark laws that restrict religious activity.

This new federal law has given churches a powerful weapon:

* In June, a Cheyenne, Wyoming, jury was the first to hear a RLUIPA case. A Methodist church filed suit claiming the city violated its rights by not letting it build a daycare center. The jury ruled that the church hadn't proved that providing childcare is a "sincere exercise of religion." The church has appealed to the 10th U.S. Circuit Court of Appeals.

* In Salem, Oregon, the city council denied the Court Street Christian Church's request for an 8,100-square foot expansion, citing concern that allowing an exception to the neighborhood zoning would set a precedent that could erode historic areas.

The church filed a lawsuit claiming religious discrimination based on RLUIPA. The case awaits resolution.

* In Plano, Texas, the WillowCreek Fellowship filed suit in July against the city after the church received notification from the city that it might not be granted occupancy of its nearly-finished building if it did not renovate two walls. The church said it was unable to fund such renovations and was being discriminated against. The two parties hope resolve the issue through mediation.

* On June 23, California federal judge Stephen Wilson struck down part of the RLUIPA in ruling against Elsinore Christian Center, which was seeking to purchase a downtown building being used as a grocery store. The church wanted to use the building for additional parking and a meeting room. The Lake Elsinore planning commission refused the permit, citing the need for a grocery store in the area and the loss of tax revenue among its reasons. Wilson, in his ruling, said RLUIPA exceeded congressional power under a section of the Constitution's 14th Amendment. He described the law as a "blunderbuss of a remedy." The case is being appealed.

* In March 2002, the Greenwood Village (Colorado) City Council rejected a proposal to expand onto adjacent land by the Greenwood Community Church. The city council reversed its decision after the church sued citing the RLUIPA.

These are examples of the more than 50 land-use/religious discrimination conflicts citing the RLUIPA simmering in courts across the nation today. A Boise courtroom may be next if Cathedral of the Rockies decides to use the RLUIPA to move forward with its plans to demolish six historic houses on Fort Street between 11th and 12th and replace them with a 139-unit apartment complex and 456-space parking garage.

Boise Planning and Zoning denied the church's original plan earlier this year. The church plans to present a new proposal in the upcoming months.

In July, Boise City Council pulled the church's demolition permits for the six houses, but then reinstated the permits on August 26.

At an August 12 public hearing on the revocation of the permits, the church made reference to the RLUIPA. In addition, an August 11 letter from attorney Frederic Shoemaker to the Council reads in part, "If the City Council chooses to follow...Mr. Jones' interpretation of City Code Title 4 would have the City discriminate against the First United Methodist Church in an unfair and unheralded manner. The United States Congress has deemed land use discrimination against religious organizations so intolerable that, in 2000, it passed the Religious Land Use and Institutionalized Persons Act...RLUIPA protects religious organizations from land use discrimination by declaring such policies unconstitutional." (Note: the Council did not review this letter because it arrived after the time for new evidence had passed.)

The RLUIPA has an interesting history that began over a decade ago in Oregon when two Native Americans, whose religion required them to use the hallucinogenic drug peyote, were fired from their jobs for controlled substance abuse and denied unemployment compensation. The workers appealed, claiming religious discrimination. The case ultimately went to the U.S. Supreme Court which ruled that the Oregon law was reasonable since its main purpose was to ban a harmful substance, not restrict free exercise of religion.

Many conservative leaders viewed this ruling as an attack on religion and they began to lobby Congress for a statute to nullify the Supreme Court decision. Congress met this demand with the passage of the "Religious Freedom Restoration Act" (RFRA) in 1993, which said state or city laws or ordinances could not restrict a religious institution or impede an individual practicing his or her religion. This act was struck down following a situation in Boerne, Texas, in which a Catholic church wanted to demolish a historic building to enlarge its facilities. The city's zoning board said the town's historic preservation ordinance prevented demolition. The church argued exemption based on the RFRA. The case eventually went to the high court which struck down the act saying the RFRA exceeded Congress' constitutional authority.

Following this defeat, the religious lobby did not wait long to introduce the RLUIPA in 2000, which passed by unanimous consent.

Opponents say the act gives religious groups more rights than homeowners. Proponents say the act was needed because governments have imposed too many barriers to church projects, infringing on religious freedom.

Article copyright Bar Bar Inc.

Illustration (A cross)