Friday, October 3, 2014
George Smith (Catholic) & Philip Donoho (Georgetown) have posted RLUIPA: Re-Aligning Burdens of Proof, Clarifying Freedoms, and Re-Defining Responsibilities (NYU J. of Legis. and Public Policy) on SSRN. Here's the abstract:
Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical approach to resolving this dilemma in applying RLUIPA is the strongest objective template for determining when the Fair Terms of RLUIPA have been violated by zoning authorities.
In order to introduce a needed quantum of certainty in judicial decision making, this Article concludes that one of two options should be pursued: resolving cases under the rubric of conformity with objective criteria — thereby vindicating the prerogative of local zoning authorities while protecting sectarian land users from the limitless discretion of a provincial bureaucracy; or, alternatively, rationalizing the procedures of a RLUIPA action in such a manner that recognizes a land user’s statutory claim under this legislation establishes a prima facie case. Under this second option, such a case could be rebutted upon the showing by a locality that its actions were reasonable under the common law doctrine of nuisance. A surrebuttal to this assertion could be made by a showing by the plaintiff that there was a discriminatory intent exhibited by the governmental authority in its actions to restrict the religious use of land. Each of these two evidentiary approaches represent a fair reading of RLUIPA — and, each would serve to lift the veil of ambiguity covering the capacious issue of religious land use under present law.