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The Federal Government's Intervention On Behalf of Religious Entities In Local Land Use Disputes:
Why It's A Terrible Idea

Thursday, Nov. 06, 2003

The Department of Justice has recently intruded into a bizarre and inappropriate new terrain. It has begun acting as a prosecutor in local land use disputes.

You may find this hard to believe, given everything that is on DOJ's plate right now. There is, of course, the war on terror. And there is the largest coordinated child sexual abuse ring in history--run by the leadership of the Catholic Church. This ring plainly falls within federal jurisdiction, pursuant to the Racketeering Influenced Corrupt Organizations Act (RICO), as I have discussed in a previous column. Yet no prosecution has been brought against it.

But forget about protecting the nation from terrorist attacks, or finding justice for thousands of children for sexual abuse by trusted adults. Instead, DOJ's concern is to protect churches from the zoning laws that apply equally to everyone.

It's hard to imagine a worse misallocation of federal resources, at a more crucial time.

The Religious Land Use and Institutionalized Persons Act: How It Works

What could DOJ's pretext for intervening in these matters possibly be? It turns out it is the Religious Land Use and Institutionalized Persons Act. Ironically, while President Clinton signed RLUIPA, the Bush DOJ is proving to be as hostile to state and local government as any Democratic administration.

RLUIPA is an incredibly stupid law, for reasons I've explained in a prior column. Unsurprisingly, Congress passed it immediately before a recess, by voice vote, so every member could avoid taking personal responsibility. RLUIPA gives landowners who are religious a special right to challenge land use laws -- while their neighbors, in the same zoned district, may not.

The freedoms of this country were built on the ability to own private property without regard to status, power, or identity. (Restrictions relating to sex and condition of servitude, of course, were removed only later.) It is those very freedoms that RLUIPA puts in jeopardy.

Land use conflicts happen frequently. Suppose, for instance, that two purchasers buy property next door to each other on the same day, in the same residential neighborhood. One is a family seeking a quiet neighborhood in which to raise children The other is a 450-member church that would like to build a special events auditorium, a gym, and a catering hall.

Now, zoning laws prohibit the church's intended uses; after all, this is a quiet residential neighborhood. But under RLUIPA, the church may well get those zoning laws changed -- with the result that the family seeking peace and quiet ends up living to a property as intensely used as, say, a mini-mart.

Why the Professed Justification For RLUIPA Is Deeply Unpersuasive

What could possibly justify giving the church the special right -- a right other property owners lack -- to get the zoning laws changed? The defenders of RLUIPA will tell you that the reason is that there is pervasive discrimination against religious groups in the land use process. But that's nonsense.

In fact, the legislative history of RLUIPA reveals precious little proof of discrimination, when religious entities had every incentive to try to bolster the law by providing just such proof. Indeed, the factual record reveals that, quite to the contrary, city governments (like Congress) cannot do enough for religious groups.

During the hearings on RLUIPA, religious groups' main gripe wasn't discrimination. It was that they couldn't make use of property in the way they wanted to, due to zoning laws. Doubtless, would-be mini-mart owners had the same complaint. The answer is to buy property elsewhere in the same town that is properly zoned. ( Such property is virtually always available.)

Plainly, application of the general zoning laws equally to a religious entity is not, in itself, religious discrimination, any more than applying those laws equally to women is, in itself, sex discrimination!

Not Only Legislative History, But Also Court Decisions, Fail to Show Discrimination

Readers may ask, What about subsequent RLUIPA court cases? Might they not reveal discrimination, even if the legislative history does not? Well, they might -- but in fact, they don't.

Indeed, to my knowledge, of the RLUIPA land use cases in the courts to date, not a single one has made a factual finding that there was discrimination. In one California case, Cottonwood Center, the court found, at the preliminary injunction stage, that there might be discrimination. But that's it. (The case settled, so no further finding was made.) In most decisions, the courts have gone out of their way to point out that there was no discrimination.

In any case, if there were discrimination -- and the evidence shows there is not -- churches could have sued under the Establishment or Free Exercise Clause; they did not need RLUIPA. If a local government discriminates against religious entities in land use, it violates the Constitution.

Because this Constitutional remedy for discrimination already existed, and because there was only minimal, if any, discrimination in the first place, there was absolutely no need for RLUIPA.

And in any event, RLUIPA is hardly a religious antidiscrimination statute. To the contrary, it goes much further, to torque all local land use decisionmaking in favor of all churches and synagogues and mosques.

RLUIPA's defenders have become fond of calling this one of the great civil rights statutes in American history -- as though it is anywhere near as righteous as the racial anti-discrimination laws that were so sorely needed. In fact, it is nothing but a special interest group deal that disserves and undermines the larger public good.

RLUIPA's Attorney's Fees Provision Creates Private Attorneys General Already

Now that we've seen why RLUIPA itself is profoundly unnecessary and unfair, it's time to explain why DOJ's intervention here is, if possible, even more profoundly unnecessary and unfair. RLUIPA purported to remedy discrimination that didn't exist. Now DOJ is purporting to level a playing field that is already tipped in favor of religious entities.

Groups like the Becket Fund and the Pacific Legal Foundation are bankrolling RLUIPA litigation. And it's not hard for them to do so, because RLUIPA provides attorney's fees to the successful religious plaintiff. By doing so, it incentivizes so-called "private attorneys general" to enforce the law.

So religious entities often find it easy to sue. Yet state and local governments -- already financially desperate -- often see no choice but to settle. And that settlement, ironically, can get attorney's fees that then go to bankroll yet more RLUIPA litigation.

If anyone needs litigation aid here, it's the zoning boards, who are only trying to do their jobs fairly, in the public good. Yet DOJ chose to intervene against them, and on behalf of the already well-funded religious plaintiffs.

DOJ's Intervention in RLUIPA Land Use Disputes Is Harmful to Other Goals

Here's how it's happening: A city government is already fighting a costly RLUIPA suit. Then it receives a letter from DOJ saying that it must also undergo an independent investigation to make sure RLUIPA is being complied with. The DOJ demands, within 30 days no less, the entire zoning code along with any resolutions, memoranda, or documents that interpret the code, a ten-year history in the city of all actions taken vis-a-vis churches, and everything the city has on the particular case. Plus anything the city might also want to include (as though its file drawers are not emptied by the previous requests.) This is bureaucracy to no good end at its worst.

Never mind that a private suit has already been filed. Never mind that compliance is what the attorney's fees provision was already supposed to ensure. Never mind that the city likely couldn't afford to defend the suit, let alone to endure the investigation.

Where does this push by the Bush Administration for religious groups stop? The federal government is funding religious mission, through the euphemisms charitable choice and faith-based funding. Now it is pressuring cities to free churches from zoning laws, as well. What's next? The federal Land Grant for Churches Law that pays for the land the churches want?

Backlash is inevitable -- and has already begun. Residential homeowners who are yoked with RLUIPA are fighting mad. Every day, more discover its unfair treatment of private property owners. And unfortunately for the administration, these people do vote.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on RLUIPA and church/state issues is available on this website. She represents cities and homeowners in constitutional challenges to RLUIPA. Her email address is

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