Monday, October 16, 2006

RLUIPA Blogging Finale

It has been a pleasure and a privilege for me to guest blog on ProprtyProf about teaching RLUIPA in Property Class. My thanks to Ben and all of you for this opportunity.

I have a few final thoughts.

1) It is probably worth mentioning that RLUIPA protects not only religious land use, but also religious liberty in prisons. Here is the text of RLUIPA Sec. 3:

(a) GENERAL RULE- No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997), even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) SCOPE OF APPLICATION- This section applies in any case in which--
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

I don't teach this provision, but I let students know it exists.

2) It is easy to draft an RLUIPA exam question, because there are always new cases being litigated from which you can borrow facts. is a great resource for new cases and issues. For example, my major essay question last year concerned a real case in which the Property Owner's Association threatened to enforce a single family use covenant against a family that was homeschooling their four children at their home in a subdivision. The family's decision to homeschool was based upon religious obligation, the parent's duty to "educate their children in the light of God's truth." The homeschool family was joined once a week by several other homeschool families for group lessons and activities.The covenant required single family use only and prohibited use "for commercial, business, church or school purposes." The POA backed down when Home School Legal Defense lawyers sent a First Amendment SWAT team to defend the family, but the controversy raised some really nice issues about covenants running with the land. By the way, can you spot the RLUIPA issue lurking in the facts? [Hint--is the law of covenants running with the land a "land use regulation" covered by RLUIPA? Remember, RLUIPA requires a broad construction to maximize religious liberty.]

3) Please don't hesitate if you wish to contact me about teaching RLUIPA or other First Amendment issues in Property. I find that issues like these make for a delightful, palate-cleansing sherbert in between main courses such as estates, recording, & landlord/tenant.

Cheers, Rick Duncan (University of Nebraska College of Law)(email:

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would an Unincorporated church,(who refuses to apply for any State or federal recognition,incorporation or official non-profit designation), lose any of it's ability to be protected by RLUIPA? any comments?

Posted by: joseph marras sr | Jan 7, 2007 7:18:01 PM

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