Tuesday, July 1, 2014

Hobby Lobby’s “passing strange” interpretation of RLUIPA: an unlikely, but potentially dramatic, impact on land use law?

Receiving almost no coverage—scratch that, absolutely no coverage—in yesterday’s Hobby Lobby decision was that an important part of the case turns on the relationship between the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court's opinion could, perhaps inadvertently, substantially affect not only the availability of contraception under the Affordable Care Act, but also religious land use claims by corporations.

The potential effect of Hobby Lobby on land use claims is ironic because the majority explicitly avoided discussing that RLUIPA covers land use, and yet, Hobby Lobby may turn out to be a major land use case.  Whenever referencing RLUIPA, Alito's majority opinion only mentioned institutionalized persons (see excerpts below).  What is the import of that?  I am still trying to figure that out, but I thought I would raise the issue here.

Below, I have excerpted several key parts of the Hobby Lobby case addressing RLUIPA from:  Alito’s majority opinion; Ginsberg’s dissent, in which she calls the majority’s interpretation of RLUIPA that sidesteps land use altogether “passing strange” (see Dissent Footnote 12 below); and also an excerpt from the National League of Cities’ amicus brief, cited by Ginsberg in dissent, which highlights some of the issues that we may well see soon in the land use world resulting from Hobby Lobby.  I welcome comments because, as I say, I am still working through the import of this decision, and whether the types of issues the National League of Cities outlines below may, in fact, come to pass.

 From Alito’s majority opinion:

As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532.

Following our decision in City of Boerne, Congresspassed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited categoryof governmental actions. See Cutter v. Wilkinson, 544 U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition ofthe “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition made reference to the First Amendment. See §2000bb–2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation fromFirst Amendment case law, Congress deleted the referenceto the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”§2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by theterms of this chapter and the Constitution.” §2000cc– 3(g). FN 5

FN 5.  The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase“exercise of religion,” as it appears in RLUIPA, must be interpretedbroadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion”under RFRA must be given the same broad meaning that applies underRLUIPA.

Slip Op. at 6-7.

* * *

Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the FirstAmendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principaldissent can explain why Congress did this if it wanted totie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protectionof religious exercise, to the maximum extent permitted bythe terms of this chapter and the Constitution.” §2000cc–3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.

Slip Op. 26.

* * * 

HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scopeof RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners toassert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that thefederal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wantedRFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?

Slip Op. 29-30.

* * * 

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used torequire creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA thatsupports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter mayrequire a government to incur expenses in its own operations to avoid imposing a substantial burden on religiousexercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

Slip Op. at 42-43.

From Ginsberg’s dissent:

Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious LandUse and Institutionalized Persons Act of 2000 (RLUIPA),42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originallyenacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.”§2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, asystem of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect acomplete separation from First Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centralityof a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the classof entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdensa religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is nodoubt that RLUIPA’s drafters, in changing the definitionof ‘exercise of religion,’ wanted to broaden the scope of thekinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us withno helpful definition of ‘exercise of religion.’”); Henderson v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The[RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’”).10

FN 10  RLUIPA, the Court notes, includes a provision directing that “[t]hischapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of[the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of constructiongoverning the statute in its entirety.

Dissent Slip Op. 10-11.

* * *

FN 12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute toRLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.

Dissent Slip Op. 13-14.

From National League of Cities, National Association of Counties, International City/County Management Association, U.S. Conference of Mayors, and International Municipal Lawyers Association's amicus brief:

B. Permitting For-Profit Corporations To Qualify As “Person[s]” Under RLUIPA Would Expand The Statute, Destabilize Markets, And Unnecessarily Burden Local Planning Departments.

Interpreting RLUIPA to protect for-profit, secular corporations would dramatically expand the statute's reach. For-profit corporations could avail themselves of RLUIPA's broad definition of religious exercise to characterize secular commercial activity as religious in nature. They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely result would be a dramatic increase in the number of for-profit corporations claiming to engage in “religious exercise,” with a concomitant increased burden on local governments administering land use regulations.

RLUIPA's broad definition of religious exercise already encompasses the use of property by non-profit religious organizations for activities such as movie *27 nights, community events, the hosting of private catered functions, and the operation of overnight retreat centers and housing facilities. See Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 282 (5th Cir. 2012) (church challenged zoning ordinance that prevented it from obtaining larger space to “host certain community outreach events” like “Bible School” and movie nights); Third Church of Christ, Scientist v. City of New York, 626 F.3d 667, 668 (2d Cir. 2010) (use of church facilities for private, catered functions); Bikur Cholim, Inc. v. Vill. of Suffern, 664 F. Supp. 2d 267, 271 (S.D.N.Y. 2009) (operation of facility providing overnight accommodations to families of hospital patients).

If for-profit corporations may characterize their “pursuit of profit” as related to their “exercise of religion,” then there would be no end to the types of “religious exercise” for which corporations could seek protection under RLUIPA. Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, Pet'rs' Br. at 26 (internal quotations and citation omitted). Indeed, the Tenth Circuit's opinion, if applied to RLUIPA, would open the door to precisely such possibilities. Sebelius Pet'rs' App. 39a. A facility hosting for-profit community events could be protected under RLUIPA if the relevant entity claimed to be performing a religious obligation by so gathering the public. Mintz v. Roman Catholic Bishop of Springfield, 424 F. Supp. 2d 309, 319 (D. Mass. 2006) (involving a parish meeting center). A for-profit amusement park could invoke RLUIPA if it claimed a religious obligation to provide wholesome entertainment to children. Cf. Grace United Methodist Church, 451 F.3d at 656 (applying RLUIPA to non-profit religious group operating a day-care center); Westchester Day Sch., 504 F.3d at 347-48 (applying RLUIPA to a religious *28 private day school). Or a for-profit hotel and convention center could avoid generally applicable zoning requirements by claiming its services to be religiously motivated. Cf. World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 533-34 (7th Cir. 2009) (applying RLUIPA to non-profit religious group operating community center and single-room-occupancy facilities). While courts reviewing these claims could determine whether these assertions of religious belief were sincere, they could do little else to question whether these activities were religious in nature. See Thomas, 450 U.S. at 715-16.

For-profit corporations would have strong incentives to claim “religious exercise” to gain a commercial advantage over competitors, if they could qualify as “person[s]” under RLUIPA. A corporation building a factory could evade local land use regulations - and build its factory more quickly and more cheaply - by asserting that the factory related to the corporation's “exercise of religion.” This corporation would have a significant advantage over all of its competitors that remained subject to local land use requirements. At an extreme, this unequal playing field could disrupt commercial markets and hinder competition by non-religious corporations, which would be at a disadvantage in the initial stages of acquiring property and getting products or services to market. At a minimum, the consequence would be a vastly greater number of entities seeking to invoke RLUIPA to avoid land use restrictions, and the concomitant diminution of local government power to control land uses.

The result would also be a dramatically increased burden on local planning commissions, boards of appeal, and similar entities tasked with enforcing land use regulations and addressing requests for variance. *29 Allowing for-profit corporations to invoke RLUIPA would likely lead to a sharp increase in cases in which the government must make land use decisions with the possibility of RLUIPA litigation looming in the background. As an amicus brief filed with the Tenth Circuit makes clear, arguments about statutory religious protections do not surface for the first time in court, but may arise during the administrative process that precedes the government decision. Br. of Sen. Orrin G. Hatch et al. as Amici Curiae Supporting Plaintiffs-Appellants at 4-5, Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (No. 12-6294) (criticizing the federal Department of Health and Human Services for failing to address RFRA during administrative process).

Protected entities already invoke RLUIPA when seeking conditional use permits or other individualized assessments at the local administrative level. See, e.g., Trinity Assembly of God of Baltimore City, Inc., 941 A.2d at 562; Timberline Baptist Church v. Washington County, 154 P.3d 759, 760 (Or. App. 2007). Indeed, some courts have required local commissions to first determine RLUIPA's applicability to a particular action before a claimant can seek judicial relief. See, e.g., Lyster v. Woodford County Bd. of Adjustment Members, No. 2005-CA-001336-MR, 2007 WL 542719, at *4 (Ky. App. Feb. 23, 2007) (remanding to County Board of Adjustment to “consider the provisions of RLUIPA when making its determination of whether to issue a conditional use permit”); Trinity Assembly of God of Baltimore City, Inc., 941 A.2d at 561 (same). Allowing for-profit corporations to invoke RLUIPA would add to the plethora of issues that local planning commissions must already address in making zoning exceptions or granting use permits. See, e.g., *30 Cal. Gov. Code § 65906 (providing that variances may be granted “because of special circumstances applicable to the property, including size, shape, topography, location or surroundings”); see also O'Hagen v. Bd. of Zoning Adjustment, 96 Cal. Rptr. 484, 488 (Cal. Ct. App. 1971) (setting forth showing that applicant seeking use permit must make).

And expansion of RLUIPA would entangle local boards and commissions in particularly thorny matters, as they would be required to determine the sincerity of a claimant's religious belief and weigh the magnitude of any harm to the claimant's religious exercise - determinations that may be challenging and arguably inappropriate for commissions to make. See Sebelius Pet'rs' App. 124a-130a (Briscoe, C.J., concurring in part and dissenting in part); Korte v. Sebelius, 735 F.3d 654, 703-05 (7th Cir. 2013) (Rovner, J., dissenting); cf. Smith, 494 U.S. at 889 n.5 (remarking that “it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice”). Limiting RLUIPA's definition of “person” to individuals, religious assemblies, and other non-profit religious institutions both minimizes RLUIPA's sheer impact on local government agencies and relieves these agencies from having to make thorny inquiries into claimants' religious motivations.

The negative practical effects of reading RLUIPA to include for-profit corporations within its definition of covered entities counsel strongly in favor of a more narrow reading of “person” in RLUIPA. See Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2041 (2012). Congress clearly intended RLUIPA to operate narrowly and to benefit a limited set of potential claimants: individuals and religious assemblies and *31 institutions. See generally 146 CONG. Rec. E1567 (daily ed. Sept. 22, 2000) (statement of Rep. Hyde). The creation of skewed market incentives, expansion of protected activity, and interference with the administration of local land use ordinances cannot be squared with Congress's intent. RLUIPA should thus be read as applying only to individuals and non-profit religious organizations.


RLUIPA uses the term “person” to include individuals, religious assemblies, churches, and similar non-profit religious institutions, but to exclude for-profit corporations. In light of RLUIPA's extraordinarily close relationship to RFRA, RFRA's parallel definition should be construed in the same way.

Sebelius v. Hobby Lobby Stores, Inc., 2014 WL 333899 (U.S.), 26-31 (U.S.,2014). 

What should we make of Hobby Lobby as a land use case?  Will Hobby Lobby lead to "a sharp increase in cases in which the government must make land use decisions with the possibility of RLUIPA litigation looming in the background" as the National League of Cities' amicus argued?  Or will Hobby Lobby have as much effect on land use law as Alito gave over to discussing it in his opinion (zilch, in other words)?

Stephen R. Miller


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Useful post - thanks. Exactly the question I am mulling over this weekend. No definitive answers yet, but I am concerned about the potential impact of this decision as it may be argued in the future to apply to local governments.

Posted by: Susan Trevarthen | Jul 6, 2014 5:20:00 PM