Wednesday, December 6, 2006

Christian Science Monitor article "Some US cities grapple with an unusual problem: too many churches"

This CSM article about RLUIPA begins:

It's rush hour in southeast Orlando - Sunday rush hour, that is.

About a dozen churches are within a few miles of one another, and more are under construction. Neighbors venturing out for bagels and other errands find themselves stuck in traffic, heads bowed not in faith but frustration. Some complain that the traffic persists all week, as religious, youth, sports, and other activities draw crowds after work and school.

"It's ridiculous," says Pat DeLanger, an accountant who was about to climb into her car on a recent Sunday with her teen-age daughter after a service at St. Isaac Jogues Catholic Church. She lives less than a mile away, but expects her Sunday morning drive to stretch to 30 minutes once construction on another church across the street is complete. "We live right there. We probably could walk faster."

While communities traditionally zone against houses of ill-repute, not houses of worship, frustrations have grown since 2000, when then-President Clinton signed the Religious Land Use and Institutionalized Persons Act. The law doesn't exempt churches from zoning regulations, per se. But when religious groups say the rules would create "a substantial burden," officials must show a compelling reason for the limits. Sometimes, the results leave neighborhoods feeling helpless in the face of ecclesiastical development.

Thanks to my colleague, Anthony Schutz, for the pointer.

Rick Duncan

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Thanks, Rick. I took a quick look at the rest of the article. What's new for me is the observation that in a number of communities zoning decisions to exclude churches are apparently motivated by a desire to keep the property on the property tax rolls. Clearly that consideration has no legitimacy under RLUIPA. Apart from the act, is such "fiscal zoning" justifiable? Could a local government deny a special use permit for a secular non-profit organization, if the sole reason for denial is that the organization would be entitled to a property tax exemption if they acquired and used the property?

Posted by: Jim Smith | Dec 6, 2006 1:43:21 PM

Good question about secular non-profits, Jim. RLUIPA, of course, only protects religious land users from substantial burdens and unequal treatment. So secular non-profits don't have an RLUIPA claim. This is one of the criticisms of RLUIPA (and, in some circles, of free exercise under the First Amendment): why should religious entities get more protection than secular entities?

Well, sometimes religion is treated more favorably (as when it receives a religious exercise exemption from a burden imposed by law) and sometimes religion is treated less favorably (e.g. a public school can officially endorse a secular non-profit and its mission, and government can directly subsidize a secular non-profit, but public schools can not officially endorse a religious organization, nor can govt directly subsidize a religious organization). Religion is treated as special under the law, and both government burdens on and government benefits to religious organizations are treated specially under the law.

Laws regulating religious land use strike at the heart of religious liberty--at the liberty of religious organizations to teach their faith, to worship God, and to serve God by serving those in need. Worship, teaching, and ministry all take place on the premises of real property, and the ability of govt to forbid religious land use is often the ability to forbid worship, teaching, and ministry from having a presence in certain communities.

Posted by: Rick Duncan | Dec 6, 2006 2:28:15 PM

It is true that Congress consciously favored religious entities over non-religious entities when it enacted RFRA and RLUIPA, but it is worth noting that this concern for the protection of religious freedom was itself discriminatory in its effect as between particular religions. Congress took care in enacting these statutes that it did not overturn Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1985), in which the Supreme Court had found that government imposed no "substantial" burden on the practice of an Indian tribe's religion when it authorized development activities on National Forest lands that "would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples." Justice O'Connor's majority opinion was highly protective of the Government's "right to use what is, after all, ITS land," without however addressing the possibility that the tribes' loss of the land had perhaps been less than voluntary.

Posted by: Carl C. Christensen | Dec 9, 2006 2:24:01 PM

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