69 Pages Posted: 8 Jan 2010
Date Written: January 7, 2010
This paper grapples with the question how best to interpret the Religious Land Use and Institutionalized Persons Act, which creates a prophylactic remedy in favor of religious land users burdened by local land use regulations. Where the burden on religious exercise is substantial, RLUIPA subjects the regulation to strict scrutiny review. Several scholars object to RLUIPA on the grounds that it violates principles of federalism and equality between religious and non-religious landowners. Other scholars make the case for an expansive RLUIPA on the ground that the First Amendment privileges religious exercise over other types of land use.
This article first attempts to narrow the debate about RLUIPA. It suggests that scholars are arguing about what this article calls the RLUIPA interest gap, the space between religious discrimination hidden behind facially-neutral land use regulations, on one hand, and regulations that are narrowly tailored to compelling state interests, on the other. After reviewing the federal courts’ constructions of RLUIPA’s key terms, this article concludes that the RLUIPA interest gap is narrower than most scholars suppose. Focusing on the RLUIPA interest gap and the implications of that gap for communities grappling with the implications of regulating religious land use should clarify what is and what is not at stake in the debate over RLUIPA’s scope. This article affirms the claim of Natural Law philosophers and religious scholars that religion is a basic human good, which deserves the protection of law. However, it denies that the fundamental value of religion is a reason to give religious land users an exemption from land use regulation that non-religious land users do not enjoy.
Next, this article challenges the common assumption that RLUIPA’s strict scrutiny review is necessarily fatal. It attempts to identify some compelling state interests on the basis of which local governing authorities may burden religious land uses. The thesis of this latter part of the argument is that interests in direct protection of basic (underived, ultimate) human goods are compelling, for purposes of strict scrutiny analysis. If this thesis is correct, courts and scholars can more productively focus on the second prong of the strict scrutiny standard: narrow tailoring. A close connection between a community’s compelling interest and the land use decision chosen to protect that interest is a strong indication that the local government has not engaged in religious discrimination.
Keywords: RLUIPA, religion, land use, basic goods, strict scrutiny
Suggested Citation: Suggested Citation
MacLeod, Adam, A Non-Fatal Collision: Interpreting RLUIPA Where Religious Land Uses and Community Interests Meet (January 7, 2010). Available at SSRN: https://ssrn.com/abstract=1533015 or http://dx.doi.org/10.2139/ssrn.1533015