The Circus That Is RLUIPA: How the Land-Use Law that Favors Religious Landowners Is Introducing Chaos into the Local Land Use Process

In local property disputes, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has ushered in the era of the three-ring circus. What is missing in all three rings is integrity.

The First Sideshow: A Fraternity Deems Itself "Apostles of Peace and Unity"

In the first ring, we have the Apostles of Peace and Unity in the Georgetown area of Washington, DC. Now, one might imagine, from their name, that this is a group of monks, but one would be wrong. Actually, it is a group of nine male Georgetown University students who all want to live in the same 2.4-million-dollar house (purchased by one of their fathers). They are not terribly popular with neighbors for their fraternity-like activities.

The group is in violation of the zoning code, and they have been so informed by zoning authorities: No more than six unrelated individuals may live together in one home in that area. However, they do not want to break up the party. So they concocted the ingenious idea of filing as a religious organization. Why? There are two reasons.

First, in DC, religious entities have an exemption from the six-unrelated-person limit. If a group is religious, there may be fifteen unrelated individuals within their home. Thus, now that the fraternity claims it is a religion, if its claim were to succeed, its members could not only stay in their house, but even invite six more friends to share in their "religious" observances. Of course, its claim to be a religion is preposterous, but now that they have made their filing, just about anything can happen.

Second, it's not only DC law, but federal law too, that makes it advantageous for the fraternity to claim to be a religious group. RLUIPA hands them a federal legal right to challenge the zoning determination. Those with common sense might think that what is so clearly a hoax, surely cannot benefit from this expansive federal law, which I have analyzed in previous columns such as this one. But not so fast: When it comes to religion, common sense departed the United States during the Clinton era. RLUIPA was drafted by a coalition of religious organizations, and accepted wholesale by the members of Congress responsible for its passage. (It was passed by "unanimous consent," the outrageous congressional procedure that permits the passage of a bill even though only a handful of members are present, and even though most members might not even know there is going to be a vote.) Despite the lack of any meaningful debate over the impact of the bill, President Clinton enthusiastically signed it in 2000.

RLUIPA licenses religious landowners to trump zoning laws, even when the religious practice that is "substantially burdened" is not central to the religion at issue. In other words, any precept that is even remotely related to some religious belief of some kind can trigger RLUIPA protection. If these young men want to hold onto their "right" to live together in a pricey Georgetown home, it would not take a genius to trace their fraternal friendship, and even alcohol-based conviviality, to various historical religious practices. Heck, they could even say they are monks of some sort, but the sort that like to party, enjoy the company of women, and have no compunction about lying to get around zoning regulations. It really does not matter what beliefs they have - courts are not permitted to challenge the "truth" of their beliefs.

DC has several options. It can reconsider its religious exemption. Really, why do religious entities deserve to include in their dwellings 2.5 times the number of unrelated individuals that other groups can include? Once religious entities settle into a legal entitlement, though, just like the rest of us, they are not likely to give up their special privileges easily.

While the government may not challenge the truth of religious beliefs, it may challenge the sincerity of the claimant. Sincerity challenges are part and parcel of standard free exercise doctrine, so there is plenty of precedent for such a challenge. Thus, DC can legitimately argue that this newly formed "religion" is nothing more than a pretext intended to circumvent valid zoning rules - which seems, factually, to be precisely the truth here. If the religion is indeed proven to be a pretext, then the constitutional right to the free exercise of religion is not implicated, and the rule of law applies.

DC needs to stick to its guns, even as the Apostles rattle RLUIPA to preserve their "sacred" way of life. These are not the first fellows who thought of gaming the system by creating a religion. As I discuss in more detail in my book God vs. the Gavel: Religion and the Rule of Law , a group of inmates with too much time on their hands formed the CONS religion (short for the Church of the New Song). Like our Georgetown friends, they sought special privileges for weekend fun - in their case, mandatory steak and sherry every Friday. When the prison system refused their request for "religious accommodation," they sued. The first court to hear the case, quite rightly, called them the frauds they were. The second time they appeared in court, though, they were able to string together enough bad Religion Clause law to persuade federal judges that they were, in fact, a religion. Now they have a permanent con game going within the legal system, one that can be re-started anytime that prison authorities deny their demands.

The difference here, of course, is that these young men are not convicted criminals, and need to think beyond this current game. One can only hope that in the near future, their parents or their professors administer a strong dose of integrity. One report said that some of the parents thought their boys were being creative, but surely some of them are ashamed of their sons' disrespect for both law and religion.

The Second Ring: Religious Landowners' Organizations Intimidate Zoning Officials

In the second ring of our RLUIPA circus, we have towns and cities being terrorized by overzealous organizations representing religious landowners. Even before litigation is filed, such organizations are making grandiose claims about their "win record" and their proven ability to drain city resources through RLUIPA's attorneys' fees provisions.

Local officials and governments, though, need to take a deep breath before they permit themselves to be cowed by such tactics. Recently, in Tiburon, CA, the Becket Fund sent just such a letter, intended to intimidate the Town Council into permitting a local, established synagogue to put on an ambitious addition in a tightly-plotted residential neighborhood.

Towns and cities need to read such letters carefully. For example, the letter threatens attorneys fees, implying they could be ruinous, by offering the following case citation, among others: Congregation Kol Ami v. Abington Township (six figures). Here is the reality of that case: It involved plans for a large-scale synagogue in a very quiet cul-de-sac. It carried on for years, and involved four full hearings, before two different district court judges and a panel of the U.S. Court of Appeals for the Third Circuit. The synagogue found a better location with a synagogue already on it, in a neighboring community and made a profit on the sale of the land; the neighbors were able to retain their neighborhood. In the end, the "six figure" attorney fee award amounted to all of $170,000.00. Six figures to be sure, but enough to wholly abandon the land use code? Unlikely.

It gets worse, though, because the Becket Fund has created some real ugliness between the synagogue and its long-time neighbors. In the context of a situation in which the synagogue, the neighbors, and the Town Council had been amicably working out traffic issues for years, the Becket Fund charged that there was anti-Semitism in the denial of the synagogue's original, expansive proposal. Their website, trying to prove discrimination, went on to claim that this was the only synagogue in Marin County, which is patently untrue.

The Becket Fund's position in its first missive was that the synagogue should not have to budge one inch from its "Alternative 7," a somewhat-scaled-down version of its first proposal. The neighbors contacted me, and I, in turn, wrote a letter saying that the Town Council should not be buffaloed into doing what is wrong for the community. Alternative 7 was a baseline, but more restrictions to reduce the impact of the new uses on the neighbors were legitimate, even under RLUIPA.

The Town Council then produced a middle ground (as it should have), which placed additional and quite reasonable restrictions on the Alternative 7 proposal. From where I sat, as I had told the neighbors from the beginning, this was the likeliest outcome, given the various factors at play. It was a typical land-use compromise: No one received everything they wanted, but no one left the table feeling as though their concerns had been left out of the equation.

But here is how the Becket Fund reported the new proposal:

As reported in the Marin Independent Journal, the town of Tiburon heeded warnings of potential litigation and offered a compromise to Congregation Kol Shofar regarding their proposed expansion. Citing concerns over traffic and noise, the town's proposal "would cut back building expansion, reduce activities, curb noise and establish a parking system involving permits and a traffic monitoring program."

Derek Gaubatz, Director of Litigation for the Becket Fund for Religious Liberty, applauds the ruling, saying "Make no mistake, this was a huge victory for the congregation and the First Amendment in Tiburon."

This sort of public relations hyperbole, combined with the Becket Fund's predilection to count settlements (which always include a disavowal of liability by the defendants) as "victories," makes this second ring of our circus a hazard for all towns, cities, and their communities.

Lucky for Tiburon, its mayor and Town Council grasped the larger picture. According to one news report, the Mayor saw the need to heal the breach between the neighbors and the synagogue engendered by the Becket Fund, whose "approach," he said, "was unnecessarily hostile and opened a wound that will take a long time to heal." In the final analysis, common sense prevailed, with Councilmember Gram reportedly stating, "There has never been any expression of anti-Semitism, no demand for Kol Shofar to relocate. Kol Shofar is a vital, important member of our community. We recognize we probably can't make both sides happy. Kol Shofar needs to remodel. The neighbors have a right to expect they will be protected from unreasonable impacts of the expansion." Exactly.

The Third Ring: Attempts to Invoke RLUIPA to Protect Non-Religious Land Uses

In the third ring, we have novel beliefs being asserted in land use litigation. The few times that the Supreme Court has actually applied strict scrutiny to neutral, generally applicable laws in the Free Exercise context, such as in the case of Sherbert v. Verner, it has limited the free exercise right to "central" beliefs. Tangential beliefs, accordingly, have never been held to trigger the strictest of scrutiny under the First Amendment's Religion Clauses. However, as mentioned above, RLUIPA goes in the opposite direction, by tying strict scrutiny to a no-centrality mandate. The result is that religious entities are claiming that virtually any activity is religious, merely because it is done by them. Catering halls are religious; day-care centers are religious, and so on.

Religious entities are also coming up with novel variations on their own religious traditions, which just happen to support their claims for expansion. For example, there seems to be a rise in the number of clergy (from a variety of denominations) that believe in holding only one service a week, even on holidays. Thus, they need a building that will hold all of their members simultaneously.

The non-centrality requirement makes it difficult, if not impossible, for local communities to challenge such claims, even when they seem more opportunistic than authentic. Integrity plays a role here as well. RLUIPA is an invitation to exaggerate or fudge actual building needs, but religious leaders - regardless of the legal advice they receive - need to consult their own consciences before unleashing their lawyers.

So who do we blame for this three-ring circus, which is destroying relationships and neighborhoods? Congress. You cannot blame the religious entities, because they are simply taking what Congress gave them. But you can certainly take Congress to task for never considering the needs of residential neighbors abutting religious land users with ambitious expansion plans or nonreligious landowners with lively imaginations.