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The right to build, buy, or lease a place to assemble for worship is an indispensable part of religious freedom. For many faith groups, the same is true of schools for religious instruction. Religious groups simply cannot exercise their faiths without facilities adequate for their needs.
But houses of worship and religious schools often face discrimination from local zoning authorities, or face unjustifiably burdensome restrictions on their ability to use their property for worship and religious instruction. In nine hearings over the course of three years that led to the enactment in 2000 of the Religious Land Use and Institutionalized Persons Act (RLUIPA), Congress compiled what it termed "massive evidence" of widespread discrimination against religious institutions by state and local officials in land-use decisions. In particular, Congress found that minority religions are disproportionately disadvantaged in the zoning process. For example, Congress found that while Jews make up only 2% of the U.S. population, 20% of recorded cases involved synagogues. Faith groups constituting 9% of the population made up 50% of reported court cases involving zoning disputes. Congress found that even well-established religious denominations frequently faced discrimination and exclusion. Zoning codes and landmarking laws, Congress found, sometimes exclude religious assemblies in places where they permit fraternal organizations, theaters, meeting halls, and other places where large groups of people assemble for secular purposes. In other situations, Congress found that zoning codes or landmarking laws may permit religious assemblies only after highly discretionary proceedings before zoning boards or landmarking commissions, which can and often do use that authority in discriminatory ways.
To address these concerns, Congress unanimously enacted RLUIPA. RLUIPA prohibits zoning and landmarking laws that substantially burden the religious exercise of churches or other religious assemblies or institutions unless implementation of such laws is the least restrictive means of furthering a compelling governmental interest. This prohibition applies in any situation where (i) the state or local government entity imposing the substantial burden receives federal funding; (ii) the substantial burden affects, or removal of the substantial burden would affect, interstate commerce; or (iii) the substantial burden arises from the state or local government's formal or informal procedures for making individualized assessments of a property's uses.
In addition, RLUIPA prohibits zoning and landmarking laws that (1) treat churches or other religious assemblies or institutions on less than equal terms with nonreligious institutions; (2) discriminate against any assemblies or institutions on the basis of religion or religious denomination; (3) totally exclude religious assemblies from a jurisdiction; or (4) unreasonably limit religious assemblies, institutions, or structures within a jurisdiction.
In addition to creating a private cause of action, RLUIPA authorizes the Attorney General to bring suits to enforce the Act. The Attorney General has delegated this responsibility to the Civil Rights Division. Cases under the land-use provisions are handled by the Division's Housing and Civil Enforcement Section.
The Department of Justice has developed a policy Statement to assist individuals, religious assemblies and institution, and local officials, to understand their rights and obligations under RLUIPA, entitled Statement of the Department of Justice on the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Examples of recent cases:
- United States v. Village of Airmont: The United States alleges in this suit, filed on June 10, 2005, that a New York village enacted a ban on boarding schools specifically to keep Hasidic Jews, who educate their young men in boarding schools called yeshivas, from settling in the village. The case is pending. See the United States' brief in response to motion to dismiss.
- Gainesville, Florida: The Civil Rights Division opened an investigation of the City of Gainesville, Florida after the city denied a permit to Fire of God Ministries to operate a church in a building formerly used as a Moose Lodge. The city subsequently agreed to allow the church to operate on the site, and changed its zoning code to treat religious uses the same as other assembly uses. The Civil Rights Division closed its investigation in April 2008.
- Berkeley Illinois: A mosque had operated in a former school building on a 4.5 acre parcel in the Village of Berkeley, Illinois for more than 20 years. The mosque sought to build a 13,000 square foot addition to accommodate its congregation, which had grown to the point that worshipers spilled into the hallways during services, and to make exterior changes to give the building a more mosque-like appearance, including adding a minaret. The expansion project faced community opposition and repeated permit denials. The Civil Rights Division opened an investigation under RLUIPA in 2007. In March 2008, the Village agreed to allow the mosqueç´ project to move forward.
- Albanian Associated Fund v. Township of Wayne: A New Jersey Township allegedly delayed a mosqueç´ building application for more than three years, then tried to stop the building project by seizing the property under eminent domain. The mosque filed suit under RLUIPA and various state and federal claims. The Division filed a friend-of-the-court brief against the Townshipç´ motion for summary judgment. The United States' brief contends that the mosque has produced sufficient evidence to show that the Township deliberately thwarted the mosqueç´ application for a conditional use permit for discriminatory reasons through its exercise of its power of eminent domain. The court agreed.
- United States v. City of Hollywood, Florida: The Division filed suit in April 2005 against the City of Hollywood, Florida, after it denied a permit to an Orthodox Jewish synagogue located in a residential neighborhood, a permit that the suit alleged was routinely granted to other houses of worship. The suit alleged that the denial and subsequent enforcement actions taken by the city against the synagogue were a result of discrimination toward Orthodox Jews. The Division reached a consent decree with the city and the synagogue that permits the synagogue to continue to operate at the location and to expand in the neighborhood in the future and requires training for city officials. A separate agreement signed at the same time required the city to pay $2 million in damages and attorneys' fees to the synagogue.
- Village of Morton Grove, Illinois: A Muslim school in Morton Grove, Illinois, encountered community opposition to its plans to build a mosque on its property, some of which appeared to be driven by animus against Muslims. The Civil Rights Division opened a RLUIPA investigation, and, after mediation by the Department of Justice's Community Relations Service, the village reached an agreement that permitted the school to build the mosque subject to certain conditions.
- Brighton Township, Pennsylvania: Brighton Township denied a permit for an Assemblies of God church to build on a 3.25-acre lot, since the zoning code had a five-acre minimum for churches. However, the zoning code specifically stated that there was no minimum acreage requirement for adult movie theaters, cabarets, assembly halls, and fraternal organizations. The Civil Rights Division opened an investigation, and the Township amended its zoning code.
- Midrash Sephardi v. Town of Surfside: Two Orthodox Jewish Congregations were barred from meeting in space they had rented above a bank in the city's commercial district. The City's zoning code permitted private clubs, lodge halls, dance studios, music studios, and language schools in the commercial district, but excluded houses of worship. The Civil Rights Division filed a friend-of-the-court brief in the U.S. Court of Appeals for the Eleventh Circuit, and a brief as intervenor defending the constitutionality of RLUIPA. The court ruled that the exclusion of houses of worship from the commercial district violated RLUIPA, and that RLUIPA did not exceed Congress's constitutional authority to enforce the Fourteenth Amendment of the Constitution.
- United States v. Maui County: The Civil Rights Division sued the county of Maui after it denied a permit for Hale O Kaula, a small, nondenominational Christian church that has held services on Maui since 1960, to build a church on 5.85 acres of land in an agricultural district. The church encourages practitioners to grow food in accordance with Biblical principles and live in harmony with the land, and being in an agricultural district was integral to its worship needs. The county permitted various secular assemblies in the district, including rodeo facilities, petting zoos, and sports fields. The county subsequently settled with the church, permitting it to build and paying it damages and attorney's fees.
- Guru Nanak Sikh Society v. County of Sutter: A Sikh congregation in a California county that only permits houses of worship in residential and agricultural districts first purchased land in a residential district, was denied a permit, and then purchased land in an agricultural district, only to be denied a permit there as well. The United States argued that the congregation's rights under RLUIPA had been violated, and the court of appeals agreed.