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

[Comments are held for approval, so there will be some delay in posting]