PropertyProf Blog

Christmas, Wingless Angels, and Fair Housing Laws

I know law profs are supposed to deny that there is a "war on Christmas," so let's just call this a little skirmish over Christmas. Liberty Counsel just put out a press release that tells the following story:

Senior Housing Facility Orders Wings Cut from Angel on Christmas Tree
Housing Facility Faces Possible Lawsuit for Religious Discrimination

Orlando, FL – Seniors living in an Orlando area retirement home are facing blatant religious discrimination because of censorship of Christmas in their homes. Liberty Counsel is intervening to defend the religious freedom of residents.

The management at an Orlando area retirement home, Orlando Cloisters, issued a directive to strip the common areas of any religious symbols or words in Christmas displays. At the management’s direction, an employee at Orlando Cloisters cut the wings off the angel on the Christmas tree. Angels were also removed from a display by the elevator. The management issued a directive to the residents explaining that “Christmas trees, Santa Claus, wreaths, Hanukah Menorahs and ‘Seasons Greetings’ are all acceptable, as these items are not considered religious symbols.” Menorahs are indeed, religious symbols.

The Federal Fair Housing Act protects people against discrimination in housing, including religious discrimination. The retirement homes cannot legally censor out the Christian aspects of the Christmas holiday.

Anita Staver, President of Liberty Counsel, commented, “I am astounded that the management would show disregard for the residents’ religious beliefs by cutting the wings off an angel on their Christmas tree! The management of Orlando Cloisters has sent a clear message that Christians are not welcome. I have great compassion for the elderly and cannot stand to see any of them deprived of the joy of Christmas.”

Staver continued: “We will call upon the federal government to issue Christmas guidelines designed to prevent religious discrimination that often occurs in senior living facilities. If Christmas is censored from these precious ones, we all lose a piece of our religious freedom.”

I must admit I don't know about the application of the Fair Housing Act in private retirement homes. For example, if residents are allowed to decorate common areas with secular holiday decorations and even Menorahs, but not with angels, it sure looks like religious discrimination and viewpoint discrimination of religious expression. But does this kind of religious discrimination violate the Fair Housing Act? I don't know.

However, if Liberty Counsel's facts are accurate, this seems like a very Scrooge-like (if not "war" like) move on the part of the home's management.

Update

Just a brief personal comment on issues like this. I believe that in a religiously pluralistic society such as ours (and such as would be typical in a retirement home in Orlando), the best way to handle holiday decorations/celebrations is pluralistically. As much as we make fun of the Supreme Court's "just add a few plastic elves & reindeer" test for Christmas displays on government land, it is a reasonable compromise when a retirement home (or a department store) decides how to celebrate the holidays. The best way to include everyone is to include everyone. The retirement home should welcome residents who wish to share wreaths, elves, Santas, Kwanza decorations, Menorahs, angels (with wings unclipped), and even a baby Jesus. Department stores should wish us Happy Hannakah, Merry Christmas, Jolly Kwanza and Happy Holidays! When someone asks me about the war on Christmas in department stores, I reply: "I do my generic 'holiday' shopping at stores that wish me a Happy Holiday, and I do my Christmas shopping at stores that wish me a Merry Christmas."

As far as government displays are concerned, I agree with Ben that government should not endorse a particular religion, but I think there is nothing wrong with government recognizing, by means of a holiday display, that part of the community is celebrating a religious holiday. The average person just doesn't understand why it is okay for a public school to celebrate "gay pride" month, but not Christmas. Nothing in the text or history of the Establishment Clause supplies an answer to this question. Best wishes to you all.

Rick Duncan

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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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Prof. Hamilton Doesn't Like RLUIPA, Methinks

The Circus That Is RLUIPA: How the Land-Use Law that Favors Religious Landowners Is Introducing Chaos into the Local Land Use Process

Rick Duncan

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"'Apostles' Ordered to Abide by Zoning Laws"

Here are some excerpts from this interesting Washington Post article:

As much of Washington started to shut down for the Thanksgiving holiday yesterday afternoon, Brian O'Neill Jr., a Georgetown University undergrad and founder of the Apostles of Peace and Unity, sat outside the office of the city zoning administrator, angry.

His sentences were short, his tone frustrated. His faith, the college junior said, was being challenged, and he didn't like it.

....

The day before, at 6:24 p.m., O'Neill had been served an official order "to cease and desist from the illegal use of premises" -- the premises being 1617 35th Street NW, a stately house in Georgetown in an elegant neighborhood where zoning rules allow only six unrelated people to live together.

O'Neill and eight friends moved into the house in August, filing to incorporate as a nonprofit religious organization exempt from the six-person limit.

Some of the Apostles' parents thought that the filing was "ingenious," but many neighbors and others in Georgetown were outraged at what they considered a combination of blasphemy and disregard for the intent of the city's law.

Thanks to Casey Duncan at UT's Tarlton Law Library for the pointer.

Rick Duncan

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Episcopal Church, Sexuality and Property Disputes

Here is an AP story that reports:

The Episcopal task force on property disputes related to the church fight over the Bible and sexuality is monitoring dioceses it considers problems for the church.

...

Since the 2003 consecration of the first openly gay Episcopal bishop, V. Gene Robinson of New Hampshire, some traditionalist parishes have split from the U.S. denomination. Church leaders are trying to prepare for any legal fights over the properties.

[Task force leader, Bishop Stacy] Sauls says lawyers, including several diocesan chancellors and a federal judge, are helping the bishops prepare.

The task force is "maintaining contact with Episcopalians in those dioceses who wish to 'remain loyal to The Episcopal Church.'"

Hmmm. I bet there are different views among Episcopalians as to exactly which Episcopalians are "loyal" to the church, but that is an issue for another day and another blog.

Thanks to Religion Clause blog for the pointer.

Rick Duncan

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7th Circuit Rejects Religious Land Use Claim

Over at the Religion Clause blog, Howard Friedman reports:" Yesterday in Vision Church, United Methodist v. Village of Long Grove, (7th Cir., Nov. 7, 2006), the U.S. Seventh Circuit Court of Appeals rejected Free Expression, Free Exercise and RLUIPA challenges to a requirement that churches need to obtain special use permits to locate in Long Grove, Illinois." Prof. Friedman continues: "It held that the involuntary annexation of Vision Church's land was not a land use regulation covered by RLUIPA, and that size restrictions imposed on the church did not substantially burden its exercise of religion. It rejected constitutional and statutory claims of unequal treatment and Vision Church's claim that it had a vested right to build under pre-existing zoning rules."

Update: Here is another religious land use case posted today at Religion Clause:

In Men of Destiny Ministries, Inc. v. Osceola County, 2006 U.S. Dist. LEXIS 80908 (MD FL, Nov. 6, 2006), a Florida federal district court rejected claims brought under both RLUIPA and the Florida Religious Freedom Restoration Act by a Christian residential drug and alcohol rehabilitation program that was denied a conditional use permit to operate in an area near St. Cloud (FL) zoned for residential use. The court found that the county's refusal did not impose a substantial burden on the organization's exercise of its religion since it is free to run its program in other areas of the County that are zoned appropriately or to operate through out-patient counseling rather than with an in-patient facility.

Rick Duncan

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First Amendment Center Defends Religious Exemptions In Response to NY Times

Over at the First Amendment Center, Charles Haynes responds to the recent NY Times series that expressed concern about the legitimacy of religious exemptions from regulatory restrictions. Here is a key excerpt:

The village of Suffern, N.Y., treats Orthodox Jews just like everyone else — and that’s why it’s being sued by the U.S. Department of Justice for religious discrimination.

Equal treatment, it turns out, sometimes keeps the faithful from practicing their faith.

Orthodox Jews, for example, can’t drive on the Sabbath or other holy days. So a Jewish service agency in Suffern built a “Shabbos House” across from the hospital, giving believers a place to stay while visiting patients (the nearest hotel is more than three miles away).

But since the Shabbos House is in an area zoned for single-family homes, the Jewish group requested — and was denied — a zoning variance. Now both the Jewish agency and the federal government have filed suit, claiming the denial unlawfully burdens the Jewish community’s free exercise of religion.

The Suffern conflict is one of many similar disputes across the country. Last month, for example, the 6th U.S. Circuit Court of Appeals heard oral arguments in a case involving the Okemos Christian Center. The church wants to build a larger structure to hold an expanding congregation, but it can’t because of zoning restrictions in Meridian Charter Township, Mich. Although the church prevailed in a lower court, the town appealed the decision.

Cases like these are part of a growing national debate over religious exemptions to laws and regulations concerning everything from zoning to taxes. What critics (including many local officials) disparagingly call “special treatment,” religious groups describe as needed protections for religious freedom.

Although the Times editors believe that the NYT "series showed that the wall between church and state is being replaced by a platform that raises religious organizations to a higher legal plane than their secular counterparts," religious exemptions from restrictive laws actually protect the wall between church and state by ensuring that the state cannot breach the wall to impose substantial burdens on religious freedom. As Haynes puts it, the Times and other critics may call it "special treatment," but "our Framers called it religious freedom."

With Ben's kind permission, I will be serving as a kind of roving religious land use reporter for PropertyProf for the foreseeable future. I look forward to this assigment.

Rick Duncan

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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:

SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF INSTITUTIONALIZED PERSONS.
(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. RLUIPA.com 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: conlawprof@yahoo.com)

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RLUIPA and Congressional Power

I don't cover the issue of whether RLUIPA is within the constituitional power of Congress in my 1L Property class, because Constitutional Law is a required second year class at Nebraska and 1Ls are just not ready for this discussion.

However, I am quite confident that RLUIPA is constitutional for the following reasons.

The general rule, prohibiting land use regulations that substantially burden religious land use, applies only in the following situations:

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) SCOPE OF APPLICATION- This subsection applies in any case in which--
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

The Commerce power is only one of the jurisdictional hooks for RLUIPA; I believe most RLUIPA issues are within the power of Congress to regulate interstate Commerce, but, even if they are not, Congress has power under Section 5 of the 14th Amendment "to  enforce, by appropriate legislation, the provisions of this article" including the incorporated Free Exercise Clause and the Equal Protection Clause.

Under the Supreme Court's modern free exercise jurisprudence, although the Free Exercise Clause does not protect religious liberty against restrictive laws that are both neutral and generally applicable, "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). A law that discriminates against religious land users is not a neutral and generally applicable law, and neither is a law that employs "an individualized system of discretionary assessments to allocate some governmental benefit or burden." See Richard F. Duncan, Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty, 83 Neb. L.Rev. 1178 (2005). Thus, whenever zoning laws discriminate against religious land users or employ an individualized and discretionary process to allocate variances or conditional use permits, RLUIPA is merely enforcing the Free Exercise Clause when it requires strict scrutiny in these situations.

As you can see, both the "substantial burden" rule and the "equal terms" rule of RLUIPA are basically statutory codifications of the Court's free exercise rules (and thus well within the power of Congress under Section 5 of the 14th Amendment). This is much more than you probably wish to cover in Property class, but perhaps worth at least a brief discussion in an upper level Land Use course.

I am nearing the end of my religious land use guest blogging. I will probably tie up some loose ends tomorrow, and then ride off into the beautiful Nebraska sunset. But if you have questions about teaching RLUIPA in Property class, fire away and I will try to answer them. You can ask your questions by posting a comment or by emailing me at conlawprof@yahoo.com.

Rick Duncan

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More on RLUIPA's Constitutionality

As a follow up to Ben's post on RLUIPA's constitutionality:

RLUIPA.com links to these articles:

Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L. Rev. 929 (Summer 2001)

Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA's Prisoner Provisions, 28 Harv. J.L. & Pub. Pol’y 501 (2005)

Rick Duncan

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Times' Attack on Religious Liberty Criticized

The Religion Clause blog reports:

An article Wednesday by the Business & Media Institute strongly criticized the New York Times' recent series on benefits and exemptions granted by government to religious organizations. The Institute said that the series was a "pro-government, pro-regulation treatise". It argues that Diana B. Henriques, reporter on the Times series, failed to point out "the radical nature of several anti-religious sources mentioned in her series".

As I said earlier, it is not uncommon for strict separationists to view laws that protect religious libety as somehow advancing religion. The Times supports separation of church and state when government benefits are involved, but not when government burdens are involved. When government exempts religious activities from regulation--as it does under RLUIPA--it practices separation by removing government-imposed burdens from religious actors. As I explained to a colleague of mine earlier this week, a one-way Establishment Clause--one that prohibits equal funding and other benefits, but requires equal burdens and regulations--is not consistent with religious tolerance in a religiously pluralistic nation.

Rick Duncan

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RLUIPA in Property Class: Day 2

For our second session on RLUIPA, I have my students read New Life Ministries v. Township of Mt. Morris (E. Dist. Mich. 2006)(link), a case in which "a federal district court ruled that a zoning ordinance in Mt. Morris, Michigan could not be applied to prohibit New Life Ministries from holding 'religious services' in a zone where secular assemblies, such as 'private clubs, civic and fraternal organizations, lodge halls, theaters, assembly halls, and public and private educational facilities and institutions,' are allowed."  See Rluipa.com (Scroll down to "Michigan Court Finds Town Violated RLUIPA").

New Life Ministries is a short, well-written opinion on the second substantive rule of RLUIPA, section 2000cc(2)(b)(1) and the "equal terms" rule:

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.

(b) DISCRIMINATION AND EXCLUSION-
(1) EQUAL TERMS- 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 nonreligious assembly or institution.

Notice that there are four elements to an "equal terms" claim: "(1)the plaintiff must be a religious assembly or institution, (2) subject to a land use regulation, that (3) treats the religious assembly on less than equal terms, with (4) a nonreligious assembly or institution." New Life Ministries at 7.

A similar case--one that some of you may wish to use instead of New Life Ministries--is Midrash Sephardi,Inc. v. Town of Surfside, 366 F. 3d 1214 (11th Cir. 2004)(link), a case in which a small Orthodox Jewish congregation was denied a conditional use permit under a zoning scheme pursuant to which churches and synagogues are prohibited in the business district, even though private clubs, lodge halls, restaurants, dance studios, health clubs, and theaters are permitted. The Beckett Fund filed a brief in this case that included the following powerful argument:

• "Can a city permit people to assemble in a private club or lodge hall (e.g., Lions Club, Rotary, Elks Lodge) for fellowship, but prohibit the same number of people from assembling in a synagogue for religious fellowship?
• "Can a city permit people to assemble in a theatre to watch the staging of a Jewish wedding (e.g., Fiddler on the Roof), but prohibit the same number of people from assembling in a synagogue to participate in a religious Jewish wedding?
• "Can a city permit people to assemble in a cinema to watch the Ten Commandments, but prohibit the same number of people from assembling in a synagogue to hear religious teaching about and worship the God they believed authored the Ten Commandments?
• "Can a city permit people to assemble in a health club for yoga and aerobic classes to improve physical and mental health, but prohibit the same number of people from assembling in a synagogue to address their spiritual health?
• "Can a city permit people to assemble in a language school to study Hebrew, but prohibit the same number of people from assembling in a synagogue to study the Hebrew text of the Torah?
• "Can a city permit people to assemble in a music studio to sing music, but prohibit the same number of people from assembling in a synagogue to sing during a worship service?

The answer under both RLUIPA and the Constitution to all of these questions is no.

I like New Life Ministries for 1Ls because the opinion is short and to-the-point. But Midrash is another good choice.

A few years ago I had an RLUIPA question on my Property final exam, and I use the rest of the hour to go over this exam, sort of like a "practice exam." This gets us through our second RLUIPA class, and it is time to move on to more traditional Property topics.

Rick Duncan

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RLUIPA in Property Class: Day 1

I spend two hours in Property class teaching RLUIPA. Here is a "teachers manual" for RLUIPA Day One.

I start by discussing some of the background issues--why religious land users are often excluded from both commercial and residential districts, the difficulty "non-mainstream" churches have getting special use permits, the NIMBY problem faced by many religious ministries--and then we take a walk through the statute while I try to get the students to focus on particularly important provisions (including definitions).

Then we turn to the case assigned for the class--Murphy v. Zoning Com'n of Town of New Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) (link). This is a bit of an unusual case--and as I will point out later it was vacated on other grounds by the 2d Circuit--but it has nice facts and a very thoughtful discussion of the RLUIPA issues. Here is a summary of the facts provided by the RLUIPA.com web site:

Robert and Mary Murphy have lived in their home on Jefferson St. in New Milford for 28 years, and in 1994, after Robert Murphy became ill, they began hosting prayer group meetings on Sunday afternoons. The number of people attending varied, but was never less than 10 or 12. Mr. Murphy testified that the prayer meetings brought "him closer to God" and changed his life after he became ill.

Late in the summer of 2000, the New Milford zoning office began getting complaints from neighbors because of traffic concerns and parking on the street near the Murphy's home. The Zoning Enforcement Office (ZEO) was ordered to investigate, and on December 19, 2000, issued a cease and desist order charging the Murphys with violations of zoning regulations governing the single-family district.

The relevant provision of RLUIPA is Section 2000cc):

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Notice that RLUIPA permits government to "subtantially burden" the "religious exercise" of a person by means of a "land use regulation" only if governemnt can pass strict scrutiny by showing that the land use restriction is the least restrictive means of furthering a compelling state interest. In other words, once plaintiff establishes that a land use regulation has substantially burdened his religious land use, the burden shifts to the government to establish both a compelling state interest and least restrictive means. In other words, even if parking, traffic, and congestion problems qualify as a compellingly important state interest, the state must also establish that the land use restriction was the "least restrictive means" of furthering that interest. And there are often less restrictive means of dealing with traffic safety and parking problems, such as generally applicable speed limits, speed bumps, traffic lights, parking regulations, crosswalks, and the like.

Here are some of the key statutory provisions:

SEC. 4. JUDICIAL RELIEF.
....
(b) BURDEN OF PERSUASION- If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion.

(d) ATTORNEYS' FEES- Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended--
(1) by inserting `the Religious Land Use and Institutionalized Persons Act of 2000,' after `Religious Freedom Restoration Act of 1993,'; and
(2) by striking the comma that follows a comma.

SEC. 5. RULES OF CONSTRUCTION.
(e) GOVERNMENTAL DISCRETION IN ALLEVIATING BURDENS ON RELIGIOUS EXERCISE- A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

(g) BROAD CONSTRUCTION- This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.

SEC. 8. DEFINITIONS.
In this Act:
(1) CLAIMANT- The term `claimant' means a person raising a claim or defense under this Act.
(2) DEMONSTRATES- The term `demonstrates' means meets the burdens of going forward with the evidence and of persuasion.
(3) FREE EXERCISE CLAUSE- The term `Free Exercise Clause' means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion.
(4) GOVERNMENT- The term `government'--
(A) means--
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 4(b) and 5, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.
(5) LAND USE REGULATION- The term `land use regulation' means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
(6) PROGRAM OR ACTIVITY- The term `program or activity' means all of the operations of any entity as described in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(7) RELIGIOUS EXERCISE-
(A) IN GENERAL- The term `religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) RULE- The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

This is a very fun case to teach. The Murphys were hosting weekly "prayer meeting" for as many as 40 or 50 guests (and as many as 20 cars). This was not a mega-church trying to build in a single family neighborhood; it was a single family having a large social gathering once-a-week. Although there were no findings about the size and frequency of social gatherings hosted by other residents in the neighborhood, I point out that University Deans and Presidents often host alumni and faculty receptions at their homes involving similar numbers of cars and guests. And, of course, there are the ubiquitous Cub Scout/Brownie meetings not to mention Tupperware parties.

The students really get excited discussing this case, and it is a highlight of the semester.

Here is the story about what happened to Murphy on appeal (from RLUIPA.com):

The Becket Fund for Religious Liberty filed an amicus (friend of the court) brief (PDF format, 347K) that was received by the U.S. Court of Appeals for the Second Circuit on July 9, 2004. The brief supports the affirmance of U.S. Magistrate Judge Holly Fitzsimmons' decision.and defends the constitutionality of RLUIPA, a law that has been found constitutional in an overwhelming majority of cases that have reached the courts. The Second Circuit could also affirm the Murphys' win based on their First Amendment claims to Free Exercise of religion or their claim under the Connecticut Act Concerning Religious Freedom.

The United States Court of Appeals for the Second Circuit has vacated the lower court’s ruling. The lower court had held that the town of New Milford had substantially burdened the religious exercise of Robert and Mary Murphy by issuing an order requiring the Murphys to cease and desist from hosting regularly scheduled prayer meetings in their home. The Second Circuit vacated the decision without reaching the merits, holding that the Murphy’s RLUIPA and constitutional claims were not ripe for review in federal court. According to the Second Circuit, the Murphys should have first sought review of the cease and desist order by the New Milford Zoning Board of Appeals before filing their federal court action.

I hope many Property Profs decide to teach RLUIPA to 1Ls. It is an important--and a very practical--development in the law of land use.

Related posts:

Teaching RLUIPA in Property Class

Critics of RLUIPA

Rick Duncan

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As Exemptions Grow, Religion Outweighs Regulation

The October 8, 2006 New York Times has a lengthy article on religious exemptions from the Regulatory State that contains an extensive discussion of religious land use and RLUIPA. (Thanks to the Religion Clause blog for the pointer)

By the way, the title of the New York Times article is misleading. RLUIPA and other religious exemptions from restrictive laws advance religious liberty, not religion. This is a basic concept that I try to teach my First Amendment students when studying the Establishment Clause--the EC, as interpreted by the Supreme Court in the Lemon test, forbids laws that advance relgion, not laws that advance religious liberty. Notice what a difference it makes to rewrite the title to that NYT article as "As Exemptions Grow, Religious Liberty Outweighs Regulation."

Rick Duncan

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Critics of RLUIPA

Just another brief post on RLUIPA. I will have several longer posts coming next week.

I have already given you links to the RLUIPA.com web site that provides lots of supportive information and materials about RLUIPA. Now permit me to introduce you to RLUIPA's most prolific critic, Prof. Marci Hamilton. In her book, God vs. The Gavel: Religion and the Rule of Law, Prof. Hamilton devotes chapter 4 to "Religious Land Use and Residential Neighborhoods."  Here are brief excerpts that give you the flavor of Marci's disdain for RLUIPA: "RLUIPA has turned neighbor against neighbor and is one of the most religiously divisive laws ever enacted in the United States...The churches have an uncanny ability to make standard, fair practices sound inherently prejudiced." I disagree with most of her conclusions about religious liberty, but her book is well-written and very thoughtful.

Marci also has some articles that are available online including:

--STRUGGLING WITH CHURCHES AS NEIGHBORS:Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby (link)

---How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods (link)

Here is a money excerpt from the American Dream article:

Currently, homeowners trying to retain the residential character of their neighborhoods are finding RLUIPA an enemy to their dreams. Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. RLUIPA is the classic siren song, capable of persuading any religious landowner that they need not be good neighbors and that they have "rights" to choose location, size, and use at whim. That siren song has gone platinum as groups like the Becket Fund have funded federal litigation, making the religious landowners' decision to ignore the pleas of their neighbors in favor of federal court easier than ever. (Of course, Congress is largely to blame for such shenanigans because of its ill-advised decision to provide attorneys' fees for lawyers taking on RLUIPA claims.)

In one case, a church seeks to add a fourth story in a residential neighborhood zoned for two stories. In another, a private homeowner asserts the right to hold lengthy prayer meetings that exceed occupancy requirements every weekend. In a third, the church seeks a "small" addition of 30,000 square feet.

In a fourth, a synagogue seeks to convert a piece of property previously used to house a quiet convent, and then a monastery, into a lively complex offering services, education, and a catering hall for hundreds of families. In a fifth case, a quickly constructed 8000 square foot shul is overshadowing its 3000 square foot residential neighbors.

Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements.

Powerful stuff.

Rick Duncan

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Epstein on Religious Liberty and Property Rights

I am fully booked teaching today, so I only have time for a short post on religious liberty and property rights. I thought what I would do is refer you to a great op-ed on the subject by Richard Epstein. It might make a nice handout as an introduction to religious liberty issues in Property, whether under RLUIPA or even when discussing the landlord whose religion compels her to refrain from renting to unmarried cohabitants.

The Epstein piece I am referring to is a Wall Street Journal op-ed (July 27, 1994, at A15) entitled "The Welfare State's Threat to Religion."  In this essay, Epstein argues that: "An even broader look at the place of religion in the welfare state shows that many of the greatest threats to religious liberty stem from insufficient protection of individual liberty in economic affairs....The protection of private property does more than promote market efficiency; it enhances the level of human freedom in the most intimate and personal parts of our lives."

I don't have a link to this article. But if you can have your libray track it down, it would make a nice handout for a unit focusing on religious liberty and property.

Rick Duncan

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Teaching RLUIPA in Property Class

Ben has been kind enough to invite me to guest blog about my experiences teaching RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000) as part of my 1L Property course here at Nebraska. I am delighted to do so, because every year the RLUIPA unit is one of the highlights of my Property class (both for me and, so I am told, for many of my students).

RLUIPA (42 U.S.C. sects. 2000cc et seq.) (link) is surely one of the most important developments in the law of property and land use in recent years. Signed into law by President Clinton on September 22, 2000, RLUIPA is a federal civil rights law that protects religious land uses from discrimination and substantial burdens imposed by restrictive land use regulations.

RLUIPA was needed because churches, religious ministries, and other religious land users often find themselves unpopular with local residents, businesses, tax collectors, and (thus with) local government. The problems are particularly severe in the case of churches that are considered “non-mainstream” because of racial, ethnic, or sectarian factors. In a recent law review article, Roman Storzer and Anthony Picarello observed that: “Churches in the United States are facing ever-increasing pressure by municipal authorities to limit their physical presence in America’s cities and towns. According to zoning boards, mayors, and city planners across the nation, churches may belong neither on Main Street nor in residential neighborhoods. And those whom neighbors deem a ‘cult’ may not belong at all.”

After sharing the Storzer & Picarello quote with my students in a handout I distribute to the class, I ask them: “Do churches belong in residential neighborhoods? In commercial districts? If your answer is 'no,' then where do churches and religious ministries belong in a typical town or city?”

I hope the authors of Property casebooks will someday cover RLUIPA in some reasonable fashion, but until they do I use a handout that contains the following:

1) An introductory note containing some background information about RLUIPA and some comments and questions;

2) A copy of the statute;and

3) Two RLUIPA cases: Murphy v. Zoning Com’n of Town of Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) and (in this year’s handout) New Life Ministries v. Charter Township of Mt. Morris (E. D. Mich. 2006) (link)

The Beckett Fund has established a wonderful web site covering RLUIPA--RLUIPA.com (link)--which contains information about cases, pleadings, briefs, and scholarship concerning RLUIPA. In particular, this site contains helpful discussion and links concerning the two cases I assign to my students (Murphy) (New Life Ministries scroll down).

I plan to discuss these two cases (as well as some others) in future posts. For now, suffice it to say that RLUIPA brings some interesting issues concerning the public law of property and statutory interpretation into the first year Property class. It also brings a nice real world component into the course, because churches and religious ministries are ubiquitous and increasingly find themselves at odds with local land use authorities. It is also a great "table turning" issue, because it converts a government-always-wins zoning dispute into a plaintiff-often-wins civil rights/religious liberty case.

I really enjoy teaching RLUIPA in Property!

Rick Duncan

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Property and Russell Banks's Cloudsplitter

    I've been invited to guest blog for a while, an invitation which I am happy to accept.  I have been reading Cloudsplitter, Russell Banks's enormous and fascinating novel about John Brown and his sons.  Cloudsplitter has been in print for eight years but I'm sometimes slow to catch up.  Read (or re-read) it, as it offers remarkable insights into the nature of property (human slavery, of course, in this instance), the way some things lose their status as property, and the psychological process that produces extreme political violence, usually called terrorism. As to the latter point, Banks's fictional account of the process by which John Brown and his sons turned to radical violence in their moral quest to end slavery in America resonates particularly strongly in this era of global terrorism rooted in religious conviction. As to property, Cloudsplitter raises, at least to a property prof, questions about how things lose their status as property.  As we all know, property is not about the relations of people to things, but about the relations between people with respect to things.  How does (should) society restructure these relationships to "de-propertize" (if that's a word) such relationships?  We use ordinary legal processes to (mostly) increase the range of legal entitlement to intellectual property, and we rely on custom to create socially (if not legally) recognized entitlements to such things as a parking place from which one has cleared the snow, or a seat at a meeting.  These processes work in reverse, in theory, but how often do we actually eliminate property?  Extending the public trust doctrine to provide waterfront access is an example, but such extensions are limited by the takings clause.  Did Lincoln's Emancipation Proclamation constitute a taking?  Odious thought, of course.  We start out Property by asking students to figure out where property rights come from in the first instance.  Cloudsplitter caused me to wonder whether we ought to spend a little time also in the beginning asking students to figure out when and how property rights ought to disappear.   

Calvin Massey

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