California's Defeat of a State RLUIPA Bill:
The Growing Backlash Against Religious Land Use and Institutionalized Persons Acts

The law that haunts legislators most is the law of unintended consequences. A prime example is the misguided federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA forces a city, in order to enforce a zoning or land use law against a religious entity, to carry the burden of persuasion that there is a compelling interest behind the law, and that the law is the least restrictive means of achieving that interest. Since these are difficult burdens to carry, the religious entity often wins in court, or at the very least has a potent legal weapon to wield against the city. And if the city loses, it is forced to pay attorneys' fees for both parties. (For more details on RLUIPA, see my prior column.)

When Congress passed RLUIPA, it did so with the intent of benefiting religious groups, by giving them the right to challenge the application of land use and zoning laws to their properties. But the members never considered that the impact of giving religious landowners special privileges would be to demote all other property owners to second-class citizens. This unintended consequence has been disastrous -- and the effect has been felt nationwide.

In cases around the country, property owners are learning the hard way about their second-class status. For example, suppose a religious group wants to come into a single-family residential neighborhood to open a large day care center, a three-story synagogue, or a megachurch -- but it cannot satisfy the land use rules. Nowadays, such groups wave RLUIPA in the air, and too often are allowed to break those rules with impunity.

But lately, a backlash against RLUIPA has been gaining steam, and it is informative for federal and state representatives alike. The federal RLUIPA may well be struck down as unconstitutional. Accordingly, lobbyists have begun to turn to the state level -- but there, they have encountered hostility.

This month, for example, the California legislature considered a state religious land use bill, Assembly Bill 600 (AB 600)-- which would have gone even further than RLUIPA in securing special privileges to religious landowners -- and encountered a furor.

AB600 listed state and local government interests that could not be considered compelling by the courts, including: increasing the amount of taxable property, aesthetics, traffic volume, a desire to encourage retail, commercial, industrial, or agricultural use of land, and prevention of urban blight.

In this way, it would have stacked the deck even more heavily against cities and neighbors of religious institutions, and in favor of religious entities. Not only would the cities have had to show a compelling interest, but many of the interests they might otherwise have asserted, would have been off-limits. That would have been even more unfair than the current situation. For instance, for those homeowners who paid top dollar to move into an aesthetically pleasing neighborhood with little traffic, AB600 would have immediately devalued their homes by guaranteeing that those qualities could not be taken into account when a religious landowner suggested an expansive project in the neighborhood.

Fortunately, however, homeowner and neighborhood associations from all over California, and from as far away as Texas, wrote angry letters opposed to AB600. Their experience under RLUIPA had educated them to its intolerable discrimination against private property owners. And the members of the Assembly Committee on Local Government heard their concerns, and did not hesitate to kill the discriminatory bill in committee.

The moral of the California AB600 story is that every landowner in the country needs to monitor its state legislature to ensure that religious groups do not succeed in a similar mission. State, as well as federal, legislators need to be put on notice that fairness among landowners is one of the most highly prized of American values.

The RLUIPA formulation, whether federal or state, mocks the constitutional requirement of equality under the law. Two neighbors--one religious, the other a family--who buy plots of land on the same day, in the same zoned area, are treated unequally under the law. The religious landowner gets first-class treatment, while the neighbor is a second-class citizen who must accommodate his property, his dream, even his family to the religious landowner's desires.

For example, a landowner who cannot put an addition on his own modest home may nevertheless find that his next-door neighbor -- a religious organization -- is permitted to build a huge complex that dwarfs his home. As a result, the landowner's peace and quiet is permanently disrupted -- yet he himself must still abide by zoning laws whose purpose has been undermined.

Regulations as to lot size, building size, height, parking, traffic--you name the topic, and there is a religious group that has or will use RLUIPA to try to override that category of zoning regulation to serve its own interests. As a result, private property owners who have invested their life savings in family homes are being told that this federal law has ranked their dreams behind a group's religious mission.

No wonder RLUIPA is fast becoming one of the most hated laws in America. It is high time to repeal this deeply unfair law.

Not only does RLUIPA allow religious groups to break zoning and other land use laws, it also allows them to bypass the usual rules of American litigation.

In this country, the rule is virtually always that each party pays its own legal fees. But not under RLUIPA. Its attorneys' fees provision ensures that if a church wins, all attorney's fees for both sides are paid by the city. But the reverse is not true: If the city wins, it still must pay its own fees.

This one-sided provision has created bad incentives for attorneys and the litigants they represent. Enterprising attorneys and interest groups have figured out that the attorney's fees provision alone can often intimidate a city into settling. Indeed, when I spoke on a panel last year regarding RLUIPA, I heard from an RLUIPA lawyer that the very purpose of the law was to enable religious groups and their attorneys to be able to threaten cities and towns to knuckle under to a church's demands!

Under RLUIPA, when the litigation clock is ticking, it may end up being the city -- and its taxpayers -- who end up footing the entire bill. That puts the city between a rock and a hard place: it must either divert precious resources (beyond its insurance coverage for litigation) to defend a major federal lawsuit, or compromise its land use laws to the detriment of neighbors and the entire community. At the same time, the church has every incentive to litigate, because the litigation is cost-free.

In this era of cash-strapped city budgets, too often cities feel that they have no choice. Fearing the attorneys' fees provision, they reluctantly cave in to the demands of a religious group that insists it must have this piece of land, and do whatever it chooses with it -- regardless of the local and state law, the needs of the neighbors, or the dreams of the community's master plan.

In practice, RLUIPA has another, very disturbing effect as well: It drives wedges between people in a community, and encourages name-calling.

Ninety percent of Americans profess some religious belief -- meaning that a religious institution's neighbors are overwhelmingly likely to be religious themselves. The neighbors' objection to the church, synagogue, or mosque, then, is not a religious objection. It's an objection about the project's effects -- traffic, noise, and so on.

But that hasn't stopped those who seek to benefit from RLUIPA from crying "religious discrimination," and accusing their neighbors of being anti-religion, in order to further their own mission. I represent various cities and homeowners in RLUIPA litigation, and have seen this kind of dynamic occur over and over.

For instance, in one case, an Orthodox Jewish group handed out inflammatory press releases to neighbors who opposed its building project, calling them "anti-Semites" and "bigots." In fact, nothing could be further from the truth; these are good people who are dedicated to preserving the residential quality of their neighborhood. As with every other victim of RLUIPA I've met, they oppose the intensity of the use, and could care less what beliefs the property owner believes.

Unfortunately, RLUIPA cases incite this kind of name-calling. By proclaiming that religious groups' land use goals are superior to those of all others, the law invites the perverse logic that suggests that those who simply support equal application of the zoning laws are somehow anti-religion.

Yet as I've discussed in an earlier column, the idea that a plague of religious discrimination inspired RLUIPA, or motivates RLUIPA cases, is entirely unsubstantiated. As of this writing, there still is not yet a single RLUIPA case where there has been a finding of discrimination, despite the hundreds of disputes.

In truth, RLUIPA is not an antidiscrimination law. It has a provision that forbids discrimination, but that is redundant of state and federal constitutional protections. Its main provisions are more akin to an affirmative action program for religious landowners. What the religious groups in fact find objectionable is the cost and time that must be invested to increase the use of a property or to bring a large building project into a community. They believe, quite sincerely, that their religious missions should not be burdened by these secular demands -- even though these are simply the same burdens that our society places on every landowner, in the service of the common good.

RLUIPA is unconstitutional, as I have argued in another column, but it may take awhile for the Supreme Court to so hold -- for it will not have a land use case before it for some time. No Court of Appeals has yet ruled on RLUIPA's constitutionality in the land use context, so we are not even close to the split in appellate authority that would justify Court review.

Meanwhile, what can concerned landowners do? They can contact their representatives, both federal and state, and they can contact the press. When they do, they can tell their stories and suggest that RLUIPA be repealed -- and, on the state level, that it never be enacted.

If Congress were made to understand RLUIPA's true impact--on equality between constituents, on community peace, and on city budgets--it might actually consider repealing this wrongheaded law and restoring equal treatment to all property owners.