Laycock and Goodrich on RLUIPA

Douglas Laycock (Virginia) and Luke Goodrich (Becket Fund for Religious Liberty) have posted RLUIPA: Necessary, Modest, and Under-Enforced (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

Creating a physical place of worship is a core First Amendment activity, but churches are often unpopular in the zoning context, and zoning law entails vast discretion. To address the First Amendment and zoning issues that result, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). This article addresses the most common criticisms of RLUIPA: that there is no problem for RLUIPA to solve, and that RLUIPA gives churches carte blanche to burden their neighbors.

Twelve years of experience under RLUIPA show that neither criticism has merit. Churches continue to face hostility in the zoning context; RLUIPA is necessary. And while RLULIPA has protected many churches in the face of zoning resistance, churches lose when they overreach; judicial enforcement has been modest.

RLUIPA is actually somewhat underenforced, particularly with respect to its two most important provisions, “substantial burden” and “equal terms.” With respect to equal terms, we offer a clear textual resolution to the interpretive issues that have divided the courts. It is not the proposed land uses that must be equal, but the “terms” of regulation. Cities can exclude whatever assemblies they want without violating the equal terms provision, so long as they exclude religious and secular assemblies in the same terms.

Steve Clowney