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Condemning Religion: RLUIPA and the Politics of Eminent Domain

Christopher Serkin

Vanderbilt Law School

Nelson Tebbe

Brooklyn Law School; Cornell Law School

December 10, 2009

Notre Dame Law Review, Vol. 85, No. 1, 2009
Brooklyn Law School, Legal Studies Paper No. 127

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act’s extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law’s protections beyond zoning to cover outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting congregations from condemnation are likely to be far higher than the costs of doing so with respect to zoning. In conclusion, we identify an important implication of our argument for the law’s core zoning provision – namely, our proposal invites local governments to circumvent RLUIPA by simply condemning religious property that they find difficult to zone because of the Act. On the one hand, this gives local governments a needed safety valve while, on the other hand, requiring them to pay just compensation to religious groups. Our proposal therefore suggests a powerful compromise.

Number of Pages in PDF File: 55

Keywords: RLUIPA, eminent domain, land use, religious freedom, religious liberty, free exercise

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Date posted: January 19, 2009 ; Last revised: December 16, 2009

Suggested Citation

Serkin, Christopher and Tebbe, Nelson, Condemning Religion: RLUIPA and the Politics of Eminent Domain (December 10, 2009). Notre Dame Law Review, Vol. 85, No. 1, 2009; Brooklyn Law School, Legal Studies Paper No. 127. Available at SSRN: https://ssrn.com/abstract=1328921

Contact Information

Christopher Serkin (Contact Author)
Vanderbilt Law School ( email )
131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

Nelson Tebbe
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States
718.780.7960 (Phone)

Cornell Law School ( email )

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