Daniel Dalton, a founding member of Dalton & Tomich PLC located in Detroit, Michigan, is the author of Litigating Religious Land Use Cases, a book on litigating RLUIPA land use cases that was published by the ABA in July 2014. Mr. Dalton has been providing yearly updates of RLUIPA land use cases for the past eight years to The Urban Lawyer. Please see www.daltontomich.com and www.attorneysforlanduse.com for more information about Mr. Dalton and information about RLUIPA and related legal claims.
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.
While circuit splits still remain regarding some provisions of the statute — most notably regarding the Equal Terms provision8 — we are finding a more consistent body of case law for courts, communities and religious institutions to look to when evaluating potential cases. This year’s review of RLUIPA cases will be a bit different than reviews from years past. We will first consider the context in which RLUIPA was enacted, then review the different RLUIPA Equal Terms tests, and finally close with a review of the few significant RLUIPA cases that were published in 2014.
I. Brief Review of Religious Exercise Under the First Amendment
Understanding RLUIPA requires a brief review of the history of Free Exercise Clause cases.9 The Free Exercise Clause of the First Amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ”10 This constitutional protection, the first freedom of the Bill of Rights, was based on the desire of the founding fathers to protect the religious diversity of the people who risked their lives to come to America and participate in their religious practices as they deemed fit.11 The founders hoped that by protecting the freedom to worship, they would eliminate the religious conflicts that had been present in Europe in previous centuries.12
In the cases that followed the adoption of the Free Exercise Clause, the courts were asked if individuals or groups who had sincerely held religious beliefs were exempt from governmental regulations based on those beliefs. The issue first arose in 1878 when the federal government pursued a polygamy case. In Reynolds v. United States,13 the Court was faced with balancing a federal law prohibiting polygamy, enacted in 1862, with the religious practices of the Church of Jesus Christ of Latter-Day Saints, which had adopted the practice as a sincerely held religious belief.14 The unanimous Court held that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may [interfere] with practices.”15 The effect of this decision was to give the federal government extremely broad authority to regulate and interfere with the religious behavior or practices of any individual or group.16
The Supreme Court incorporated the Free Exercise Clause to the states sixty years later in Cantwell v. Connecticut.17 In that case, the Court reversed a state court criminal conviction of Cantwell, who incited a disturbance by playing an anti-Catholic record.18 While the decision focused more on free speech than the Free Exercise Clause, the Court affirmed the Reynolds decision when concluding that the Free Exercise Clause “embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”19
The Reynolds and Cantwell decisions remained the basis of Free Exercise Clause jurisprudence until 1963 when the Supreme Court decided Sherbert v. Verner.20 Adele Sherbert was a Seventh-day Adventist who observed Saturday as the Sabbath (holy) day.21 Her employer terminated her employment when she refused to work on Saturdays and the State of South Carolina rejected her unemployment claim, concluding that she refused to accept “suitable work when offered.”22 The Supreme Court found that South Carolina’s unemployment policy directly conflicted with Sherbert’s religious beliefs, forcing her to choose between her religion and unemployment benefits.23 Having determined that she was faced with a “substantial burden,” the Court asked whether the State of South Carolina had a “compelling state interest” to justify burdening her religious beliefs.24 Finding no evidence of a compelling state interest, the Court ordered the payment of unemployment benefits and concluded that “[i]t is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ ”25 This decision removed the Reynolds/ Cantwell standard and applied a strict scrutiny test to governmental conduct that impacted the religious beliefs of individuals and groups.26
A decade later, the Court reaffirmed the strict scrutiny standard for a facially neutral state law in Wisconsin v. Yoder.27 Prior to the decision in Yoder, the state of Wisconsin required all children to attend school until the age of 16.28 The state criminally pursued an Amish family who did not send their children to high school.29 Applying the strict scrutiny test from Sherbert, the Court held that requiring the Amish children to attend high school would seriously burden their free exercise rights and that the state’s interest in educating Amish children was less than compelling because the alternative — education within the Amish communities — adequately achieved the two primary goals of compulsory education: preparing children for adult life and protecting them from child labor exploitation.30
The Sherbert/ Yoder Free Exercise Clause test remained largely in- tact for the following three decades until the Court decided the case of Employment Division v. Smith31 in 1990. The Smith case involved the denial of unemployment benefits to two Native Americans who were fired from their jobs as drug rehabilitation counselors because they ingested peyote, an illegal drug, in a religious ceremony.32 After reviewing the Free Exercise Clause jurisprudence, the Court chose to reject the prior case law and concluded that government would no longer be required to demonstrate a “compelling state interest” to generally applicable laws that impose a burden on religious practices.33 The Court reasoned that, “if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”34 The Smith decision significantly narrowed Sherbert and its progeny to cases where a law is directly related to impact religious beliefs and rejected cases where a generally neutral law had a negative effect on religious behavior.35
Three years later in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,36 the Court disappointed religious liberty advocates and adhered to the “neutral law of general applicability” test established in Smith. Although the Court conceded that a local ordinance banning animal sacrifice was generally neutral, it decided that a law was not neutral in its application because its purpose was to “infringe upon or restrict practices because of their religious motivation.”37 The Court in Lukumi Babalu concluded the City’s ordinances were not neutral as applied because there was evidence of animus by the city council against the Santeria church, the ordinance only burdened Santeria sacrifices, and the City could achieve its interests in preserving public health and preventing animal cruelty without banning the sacrifices outright.38
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