Document Type
Article
Publication Date
2011
Abstract
In 2000 Congress revived strict scrutiny review of regulations that substantially burden religious land use when it enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). Many worry that RLUIPA creates a blanket exemption for religious institutions from neutral laws of general application, and that it threatens principles of federalism. A decade of experience with RLUIPA shows that these fears are unfounded. Indeed, the United States Courts of Appeals have gone out of their way to constrain the reach of RLUIPA's substantial burden provision. They have imposed upon the provision some creative interpretations, many of which are inconsistent with the statute's clear language and purposes. They have avoided constitutional conflict largely by rendering the provision ineffectual to root out latent discrimination against religious assemblies, the very purpose the provision was enacted to serve. This article defends the twin theses that courts (1) should give the term “substantial burden” its natural meaning, and (2) should use the substantial burden provision to review only individualized assessments. The individualized assessment predicate is the most sensible of RLUIPA's three jurisdictional predicates, and it is consistent with Supreme Court precedent on the meaning of the First Amendment's religion clauses. Limiting the use of RLUIPA to review of individualized assessments will mitigate much of the threat that RLUIPA might pose to local land use governance without *116 doing violence to the language and purposes of the statute. It will also tend to target those forms of religious exercise on land that are most in need of protection: religious land uses without any secular analogs in the community.
Recommended Citation
Adam J. MacLeod, Resurrecting the Bogeyman: The Curious Forms of the Substantial Burden Test in RLUIPA, 40 Real Est. L.J. 115 (2011).
