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Monday, February 18, 2008

Saxer on Religious Accessory Uses

Shelley Ross Saxer (Pepperdine) has posted Faith in Action: Religious Accessory Uses and Land Use Regulation on SSRN.  Here's the abstract:

This article details the application of constitutional, land use and tax law principles to non-religious facilities and activities, within religious institutions, considered accessories or auxiliaries to the institutions' principal religious function. To qualify them as accessory uses, the religious institution must establish that these non-religious/secular uses are necessary to the religious exercise of the institution's members and guests. The article compares the tests for accessory uses applied in land use cases interpreting the Religious Land Use and Institutionalized Persons Act (RLUIPA), with the test for auxiliary uses employed by cases determining the tax exempt status of certain religious organizations. The idea of accessory uses was developed in land use law according to the principle that because the primary use (religious worship) was permitted under the zoning regulations or a variance, the secondary and incidental uses should likewise be protected. On the other hand, the integrated auxiliary principle proceeds from the idea that the religious institution should not be burdened by government regulation. Therefore, those activities and facilities meeting the definition of an integrated auxiliary likewise cannot be burdened. The article proposes that the rationale behind providing protection for accessory uses under the RLUIPA and the rationale behind offering tax relief for religious auxiliary uses are the same: that religious exercise should not be unnecessarily burdened by the government. Therefore, the article suggests a consolidated approach be created wherein an auxiliary use that qualifies for tax exempt status likewise should warrant protection under the RLUIPA as an accessory use, and vice versa. By combining the approaches for tax exemption and land use regulation, religious freedom will be more consistently secured. To avoid violating the Establishment Clause, the article warns, the government must not become so entwined with legislating or acting in the area of religious worship as to express a preference for one religion over another, or religion over irreligion. Ultimately, it is a difficult line that the state or federal government must walk: avoiding interference with religious exercise on one side and benefiting or preferring a certain religion over another on the opposite side. The article concludes that the laws governing tax exemptions can inform land use cases struggling with the issue of accessory uses and constitutional protection under RLUIPA. There are three reasons why tax laws are helpful: 1) tax courts and legislatures have struggled to answer the same basic question of what constitutes an accessory use; 2) tax laws have embraced a more cooperative approach, allowing religious institutions to define which accessory uses are reasonably devoted to church purposes (and therefore deserving of tax exemption); and 3) tax courts have increasingly recognized that the term religious use constitutes some activities, such as recreation and social gatherings, not traditionally considered religious in nature. On the other hand, land use decisions have not provided any consistent approach to identifying accessory religious uses, and some courts have required the religious institution to independently establish the religious nature of the use without the benefit of referencing the primary religious function of the organization. Finally, the article proposes that the RLUIPA be broadly construed to protect all accessory uses that contribute directly to the religious mission of the institution, regardless of whether their independent religious nature is established.

Ben Barros

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