Recent Developments: RLUIPA Land Use Update
With respect to religious liberty in the context of marriage, employment and land use cases, 2014 was a tumultuous year. Many states began the process of adopting Religious Freedom Restoration Acts (RFRAs) in light of the United States Supreme Court’s anticipated decision regarding the constitutional right to same sex marriage.1 The public reaction to state RFRAs has been swift and loud. Several celebrities and companies have condemned the idea and called for boycotts of the state and local governments who have considered, and in some instances enacted, RFRAs.2 Nevertheless, there is a vocal group attacking RFRAs, and this attack has spilled over to RLUIPA cases.3 Courts have arguably proven to be more hostile than ever to religious groups seeking a level playing field with comparable secular assembly places in the context of zoning. Indeed, the level of conflict over religious land uses has remained the same (and in many instances increased) compared to what existed fifteen years ago.4 Municipalities often take a “whatever it costs to defend a case” approach to RLUIPA cases.5 After fifteen years, courts have failed to define many of the terms in the Religious Land Use and Institutionalized Persons Act6 (RLUIPA) that were left undefined by Congress. For a religious land use plaintiff, the success rate of either settling a case or surviving summary judgment hovers around seventeen percent. Since the enactment of the law in 2000, there have only been eleven RLUIPA land use trials in the country.7 In light of these facts, the likelihood of success for a religious plaintiff in RLUIPA land use cases appears to have dimmed somewhat in this past year.