Religious Land Use and Institutionalized Persons Act (RLUIPA)

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Among other privileges, RLUIPA allows religious groups to work around local zoning codes to construct what they need. All across the nation, religious groups are challenging local residential zoning regulations to build churches, synagogues, soup kitchens, daycare centers, schools and other structures associated with their Spiritual and Religious Organizations.

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U.S. Department of Justice
Civil Rights Division
A Guide To Federal Religious Land Use Protections
The Religious Land Use and Institutionalized Persons Act (RLUIPA)
protects religious institutions from unduly burdensome or discriminatory land use regulations. The law was passed unanimously by Congress in 2000, after hearings in which Congress found that houses of worship, particularly those of minority religions and start-up churches, were
disproportionately affected, and in fact often were actively discriminated against, by local land use decisions. Congress also found that, as a whole, religious institutions were treated worse than comparable secular institutions. Congress further found that zoning authorities frequently
were placing excessive burdens on the ability of congregations to exercise their faiths in violation of the Constitution.
In response, Congress enacted RLUIPA. This new law provides a number of important protections for the religious freedom of persons, houses of worship, and religious schools. The full text of RLUIPA is available at http://www.usdoj.gov/crt/housing/housing_rluipa.htm. Below is a summary of the law’s key provisions, with illustrations of the types of cases that may violate the law.

dcefb60ac1556dbfa563ceae2f87fe3f⊕ RLUIPA prevents infringement of religious exercise.
Land use regulations frequently can impede the ability of churches or other religious institutions to carry out their mission of serving the religious needs of their members. Section 2(a) of RLUIPA thus bars zoning restrictions that impose a “substantial burden” on the religious exercise of a person or institution, unless the government can show that it has a “compelling interest” for imposing the restriction and that the restriction is the least restrictive way for the government to further that interest.
Minor costs or inconveniences imposed on religious institutions are insufficient to trigger RLUIPA’s protections. The burden must be “substantial.” And, likewise, once the institution has shown a substantial burden on its religious exercise, the government must show not merely
that it has a rational reason for imposing the restriction, but must show that the reason is “compelling.” stock-illustration-15495289-early-american-advertising-antique-woodblock-illustrations

A church applies for a variance to build a modest addition to its building for Sunday school classes. Despite the church demonstrating that the addition is critical to carrying out its religious mission, that there is adequate space on the lot, and that there would be a negligible impact on traffic and congestion in the area, the city denies the variance.
A Jewish congregation that has been meeting in various rented spaces that have proven inadequate for the religious needs of its growing membership purchases land and seeks to build a synagogue. The town council denies the permit, and the only reason given is “we have enough houses of worship in this town already, and want more businesses.”
Because the religious organizations in these cases have demonstrated a substantial burden on their religious exercise, and the justification offered by the city in both cases is not compelling, these cases likely would be violations of RLUIPA, assuming certain jurisdictional requirements
of the statute are met.

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⊕ Religious institutions must be treated as well as comparable secular institutions.
Section 2(b)(1) of RLUIPA provides that religious assemblies and institutions must be treated at least as well as nonreligious assemblies and institutions. This is known as the “equal terms” provision of RLUIPA.
A mosque leases space in a storefront, but zoning officials deny an occupancy permit since houses of worship are forbidden in that zone. However, fraternal organizations, meeting halls, and place of assembly are all permitted as of right in the same zone. Because the statute on its face favors non-religious places of assembly over religious assemblies, this example would be a violation of 2(b)(1).
⊕ RLUIPA bars discrimination among religions.
Section 2(b)(2) of RLUIPA bars discrimination “against any assembly or institution on the basis of religion or religious denomination.”
A Hindu congregation is denied a building permit despite meeting all of the requirements for height, setback, and parking required by the zoning code. The zoning administrator is overheard making a disparaging remark about Hindus. If it were proven that the permit was denied because the applicants were Hindu, this would
constitute a violation of 2(b)(2).
⊕ Zoning ordinances may not totally exclude religious assemblies.
Section 2(b)(3)(A) of RLUIPA provides: “No government shall impose or implement a land use regulation that totally excludes religious assemblies from a jurisdiction.”
A town, seeking to preserve tax revenues, enacts a law that no new churches or other houses of worship will be permitted.
Such total exclusions of religious assemblies are explicitly forbidden by section 2(b)(3)(A).
⊕ RLUIPA forbids laws that unreasonably limit houses of worship.

Section 2(b)(3)(B) of RLUIPA provides: “No government shall impose or implement a land use regulation that unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.”

A city has no zones that permit houses of worship. The only way a church may be built is by having an individual parcel rezoned, a process which in that city takes several years and is extremely expensive. This zoning scheme, if proven to be an unreasonable limitation on houses of worship, would constitute a violation of section 2(b)(3)(B).

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Enforcement of RLUIPA Rights
Religious institutions and individuals whose rights under RLUIPA are violated may bring a private civil action for injunctive relief and damages. The Department of Justice also can investigate alleged RLUIPA violations and bring a lawsuit to enforce the statute. The Department can obtain injunctive, but not monetary, relief. If you believe that your rights under RLUIPA may have been violated and you wish to file a complaint or find out more information about the law, you may write to:

Housing and Civil Enforcement Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

or call the Housing and Civil Enforcement Section at

(800) 896-7743. Further information about
RLUIPA is available at the Section website at http://www.usdoj.gov/crt/housing/index.html.
Information about the Civil Rights Division’s religious liberties initiative, the First Freedom
Project, is available at www.FirstFreedom.gov. You also may call the Special Counsel for
Religious Discrimination at (202) 353-8622.

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42 U.S. Code Chapter 21C

§ 2000cc. Protection of land use as religious exercise

(a) Substantial burdens

(1) General rule

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application

This subsection applies in any case in which—
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

(b) Discrimination and exclusion

(1) Equal terms

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

(2) Nondiscrimination

No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.

(3) Exclusions and limits

No government shall impose or implement a land use regulation that—

(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

Source

(Pub. L. 106–274, § 2,Sept. 22, 2000, 114 Stat. 803.)

Short Title

Pub. L. 106–274, § 1,Sept. 22, 2000, 114 Stat. 803, provided that: “This Act [enacting this chapter and amending sections 1988, 2000bb–2 and 2000bb–3 of this title] may be cited as the ‘Religious Land Use and Institutionalized Persons Act of 2000’ ”.

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§ 2000cc-1. Protection of religious exercise of institutionalized persons

(a) General rule

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

(b) Scope of application

This section applies in any case in which—

(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or

(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

 

Source

(Pub. L. 106–274, § 3,Sept. 22, 2000, 114 Stat. 804.)

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§ 2000cc-2. Judicial relief

(a) Cause of action

A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

(b) Burden of persuasion

If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.

(c) Full faith and credit

Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum.

(d) Omitted

(e) Prisoners

Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).

(f) Authority of United States to enforce this chapter

The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding.

(g) Limitation

If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on, or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.

 

Source

(Pub. L. 106–274, § 4,Sept. 22, 2000, 114 Stat. 804.)

References in Text
This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 106–274, Sept. 22, 2000, 114 Stat. 803, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2000cc of this title and Tables.
The Prison Litigation Reform Act of 1995, referred to in subsec. (e), is Pub. L. 104–134, title I, § 101(a) [title VIII], Apr. 26, 1996, 110 Stat. 1321, 1321–66, as amended. For complete classification of this Act to the Code, see Short Title of 1996 Amendment note set out under section 3601 of Title 18, Crimes and Criminal Procedure, and Tables.
Codification
Section is comprised of section 4 ofPub. L. 106–274. Subsec. (d) ofsection 4 of Pub. L. 106–274amended section 1988 (b) of this title.

 

Jamestown, America's first Property Owners Association.

Jamestown, America’s first Property Owners Association.

§ 2000cc-3. Rules of construction

(a) Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

(b) Religious exercise not regulated

Nothing in this chapter shall create any basis for restricting or burdening religious exercise or for claims against a religious organization including any religiously affiliated school or university, not acting under color of law.

(c) Claims to funding unaffected

Nothing in this chapter shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.

(d) Other authority to impose conditions on funding unaffected

Nothing in this chapter shall—
(1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a government as a condition of receiving funding or other assistance; or
(2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this chapter.

(e) Governmental discretion in alleviating burdens on religious exercise

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

(f) Effect on other law

With respect to a claim brought under this chapter, proof that a substantial burden on a person’s religious exercise affects, or removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, shall not establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any law other than this chapter.

(g) Broad construction

This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.

(h) No preemption or repeal

Nothing in this chapter shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious exercise as, or more protective of religious exercise than, this chapter.

(i) Severability

If any provision of this chapter or of an amendment made by this chapter, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this chapter, the amendments made by this chapter, and the application of the provision to any other person or circumstance shall not be affected.

Source

(Pub. L. 106–274, § 5,Sept. 22, 2000, 114 Stat. 805.)

References in Text
This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 106–274, Sept. 22, 2000, 114 Stat. 803, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2000cc of this title and Tables.

 

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 § 2000cc-4. Establishment Clause unaffected

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the first amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. In this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

Source

(Pub. L. 106–274, § 6,Sept. 22, 2000, 114 Stat. 806.)

References in Text

 

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 106–274, Sept. 22, 2000, 114 Stat. 803, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2000cc of this title and Tables.
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§ 2000cc-5. Definitions

In this chapter:

(1) Claimant

The term “claimant” means a person raising a claim or defense under this chapter.

(2) Demonstrates

The term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.

(3) Free Exercise Clause

The term “Free Exercise Clause” means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion.

(4) Government

The term “government”—
(A) means—

(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 2000cc–2 (b) and 2000cc–3 of this title, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.

(5) Land use regulation

The term “land use regulation” means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.

(6) Program or activity

The term “program or activity” means all of the operations of any entity as described in paragraph (1) or (2) of section 2000d–4a of this title.

(7) Religious exercise

(A) In general

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

(B) Rule

The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

Source

(Pub. L. 106–274, § 8,Sept. 22, 2000, 114 Stat. 806.)

References in Text
This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 106–274, Sept. 22, 2000, 114 Stat. 803, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2000cc of this title and Tables.

How some controversial cases wound up.

An unrecognized tribe and its eagle feathers

He was a Native American with eagle feathers at a religious gathering of tribes. But not in the eyes of the feds.

In 2006, Robert Soto and Michael Russell attended an American Indian powwow while in possession of eagle feathers, in violation of the federal Eagle Protection Act, which outlaws the killing of bald and golden eagles and even picking their feathers off the ground.

Soto, a Lipan Apache, asserted he was participating in an Indian religious ceremony. The feathers are sacred to Native Americans.

Lipan Apache Robert Soto saw his eagle feathers seized by U.S. agents. He cited a religious freedom law and eventually won their return, but he is still fighting the government on possible future seizures.

But a federal Fish and Wildlife Service agent found his tribe wasn’t federally recognized, and Soto surrendered his feathers. Russell, who is married to Soto’s sister, isn’t American Indian and agreed to pay a fine, according to court papers and the America Bar Association Journal.

Soto, however, petitioned the federal Interior Department to return his feathers. The feds said no, because he wasn’t from a recognized tribe.

Soto and Russell sued the federal government, but a federal district court ruled in favor of the government, rejecting the two men’s First Amendment assertions and their claims under the federal Religious Freedom Restoration Act, the same 1993 statute that Indiana legislators used in developing their new state law.

But last August, the 5th U.S. Circuit Court of Appeals reversed the trial court’s decision and sent the case back to that court after finding the government’s action would violate the federal RFRA.

On March 10, the federal government returned the eagle feathers to Soto. But the legal war isn’t over.

The federal government still maintains it can criminally prosecute Soto and his congregants, so Soto is seeking a preliminary injunction, claiming the feds are violating the federal RFRA, said Luke Goodrich, Soto’s attorney who’s with the Becket Fund for Religious Liberty.

A tea called hoasca

A tea used by a Brazilian faith is to them like wine used by Catholics at communion, but U.S. agents considered the brew an illegal drug.

The religious organization O Centro Espirita Beneficiente Uniao do Vegetal uses a sacramental tea called hoasca, made from two plants native to the Amazon that contains dimethyltryptamine, a hallucinogen, in violation of the Controlled Substances Act.

Hoasca is a sacred tea for the religious group O Centro Espirita Beneficiente Uniao do Vegetal. The beverage is made from plants native to the Amazon and contains an illegal drug, a hallucinogen.

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The religion is a Christian spiritist faith that originated in Brazil and includes Amazonian and indigenous spiritual traditions.

About 140 members of the church live in the United States and use the tea in a sacred communion.

In May 1999, U.S. Customs agents entered the church headquarters in Santa Fe, New Mexico, and seized all of its hoasca.

The church became alarmed and cited how the federal government allows an exception for American Indians to use another illegal drug, peyote, in their religious ceremonies.

In fact, the federal RFRA was designed partly to protect the Native Americans’ use of peyote, said CNN legal analyst Jeffrey Toobin.

“They were a legitimate religion, and this was a legitimate ritual of the religion, and Congress wanted to make sure it was protected,” Toobin said of peyote and the 1993 law.

The Uniao do Vegetal, which means “the union of the plants,” cited that federal law in suing the federal government.

“The government has never explained why it has accommodated The Native American Church’s use of peyote (which contains mescaline, also a controlled substance) but cannot accommodate the UDV’s use of hoasca,” the church said in a statement.

The U.S. Supreme Court ruled in the church’s favor, saying the federal government failed to show a compelling interest to ban the substance for religious use.

“The peyote exception also fatally undermines the government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA,” the court ruling said.

The IRS employee and Sikh knife

Recently baptized in the Sikh faith, Kawal Tagore went to her job with the IRS in Houston in 2005 carrying a new religious item: a 9-inch kirpan, a small ceremonial sword that resembles a knife but has an edge that is blunted or curved.

Tagore needed to carry the kirpan at all times as a mandatory article of faith.

But the federal government banned her from the building, citing the kirpan as a “dangerous weapon” with a more than 3-inch blade, and she was later fired from her accounting job because she refused to keep the kirpan out of the workplace.

Tagore sued the government under the federal law.

Attorneys for IRS employee Kawal Tagore, a Sikh, argued that her symbolic kirpan wasn't any more dangerous than other objects allowed into a federal building.

Tagore cited how the government allowed the public to enter the federal building with more threatening objects: real 2.5-inch blade knives and metal canes, said her attorneys with the Newar Law Firm and the Becket Fund. Also, federal employees inside the building were allowed to use box cutters and cake knives.

In November, the federal government agreed to settle the case shortly after the start of Tagore’s trial.

The settlement included no admission of wrongdoing, the Christian Science Monitor reported.

Tagore’s attorneys described the settlement as “a groundbreaking policy allowing Sikhs and other religious minorities to wear religious symbols and attire in federal buildings,” they said in a statement.