Empathy and Pragmatism in the Choice of Constitutional Norms for Religious Land Use Disputes

Abstract

From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA) adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected by land use decisions). This article, part of a symposium at Albany Law School, proposes that the best method for analyzing land use decisions should be simple to apply, rely upon external and objective evidence to the greatest extent possible, create incentives for cooperation and resolution, reduce antagonism, and be deferential to both religious users and local government decisions. That can be better accomplished by flipping the traditional order of analysis adopted by RLUIPA. The article proposes legislative corrections to the definition of religious exercise, the order for analyzing disputes, and the appropriate evidentiary burdens and sources for resolving those questions. But it also proposes methods by which parties and courts can address religious land use questions more effectively in the absence of legislative change. In essence, the proposal proceeds by urging that we funnel land use requests and decisions first through a lens of Establishment clause norms; next, through a lens of Equal Protection norms; and then, and only then, would that neutral decision be examined through the lens of Free Exercise norms.

Keywords: Constitution, Religion, Land Use, Statutory reform, Establishment, Free Exercise, Religious Land Use

JEL Classification: K1