Tuesday, March 8, 2011

The Supreme Court and RLUIPA

Earlier in the year, the Supreme Court denied cert on yet another case involving the land use provisions of RLUIPA (Religious Land Use and Institutionalized Persons Act).  For the uninitiated, the land use portion "protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law" (this comes from the DOJ's recent report on RLUIPA). The court has denied cert before (see here and here).  The question, I think, is why?  Especially considering the clear circuit splits on the meaning of substantial burden and the "equal terms" provision.  I think there are two possible explanations.  First, the judges most concerned with expanding religious liberty could be waiting for a case with "better" or cleaner facts.  That's reasonable, but I think there's a more likely explanation; Looking at the refusal to grant cert in view of both the San Remo Hotel and Williamson County decisions suggests that the Supreme Court is pulling out of making land use decisions.  Maybe we should view the refusal to grant cert as part of the Court's federalism jurisprudence -- why do land use rules need to be consistent from state to state?   Maybe the world would be a better place if the Court had never taken Euclid or Nectow.

Steve Clowney

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The Court recently denied cert. in Boulder County v. Rocky Mountain Christian Church, a case in which a jury found RLUIPA violations but no first amendment violations. If, as implied by the result of the Boulder County case, RLUIPA goes beyond (and perhaps well beyond) the scope of traditional first amendment protections, then it is a federal law that directly interferes with the traditional local government function of zoning and land use control. In these circumstances, federalisim would indicate the cert should be granted so that the Court could pare back RLUIPA to a more traditional (and perhaps constitutional) exercise of Congressional power.

Posted by: David Hughes | Mar 9, 2011 7:03:53 AM

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