Environment, Energy and Transportation Program

Religious Land Use--State and Federal Legislation

NCSL State Legislative Report
Analysis of State Actions on Important Issues

December 2000
Vol. 25, No. 14

By Cheryl L. Runyon, Kelly Anders, Susan Parnas Frederick

As religious institutions have expanded use of their land beyond religious services and related activities, state and federal religious land legislation has been proposed, considered and enacted in response to regulatory clashes between religious organizations and zoning authorities. Rapid suburban growth (sprawl) has led to conflict between state and local government regulations and religious use of property. The types of land use sponsored by religious institutions include day care centers, schools, office buildings, homeless shelters, soup kitchens, hospitals and broadcasting centers. Such uses have caused zoning boards and courts to reevaluate the land use needs of religious establishments.

Zoning conflicts involving houses of worship and local governments have become contentious across the country during the past decade. For example, a proposed mosque in Culver City, Calif., encountered a number of complaints ranging from the possibility of traffic congestion to sun glare off the building's marble facade. The Muslim community built the mosque, but not before it made many concessions to the zoning board.

Some policymakers want to make it as difficult as possible for a government (state, local or federal) to enforce laws that would restrict or limit religious beliefs and practices and force officials to prove that a religious act indeed would endanger public welfare. Other policymakers argue that religion cannot be used by people as an excuse for illegal conduct--for violating laws that have been made not to suppress religion but to protect the overall society.

According to several national public interest groups that represent the state government perspective, the Religious Land Use and Institutionalized Persons Act recently passed by Congress and signed by President Bill Clinton will severely curtail state prison officials' ability to regulate the behavior of inmates and could increase the number of lawsuits filed by prisoners, causing the states to expend valuable resources in response to frivolous lawsuits. From a local government perspective, the new law preempts the ability of a local government to control zoning and land use in its community. The congressional sponsors and the members of Congress who voted for the legislation did not understand that every zoning ordinance approved in the United States contains variance or conditional use procedures that allow a permitee to request an exemption from zoning requirements.

Two Constitutional Clauses in Conflict

The religious land use debate places in conflict with each other two important protections found in the U. S. Constitution: the free exercise of religion and the authority to enact police power regulations.

Free Exercise of Religion

The Establishment Clause of the First Amendment to the U.S. Constitution states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."¹ This clause prevents any governmental entity (federal, state, county, municipal or other) either from excluding or giving preference to any form of religion or placing unreasonable limits on religious assemblies, institutions or structures.

Police Powers

The authority to enact police power regulations is vested in state legislatures but the power has been broadly delegated to local governments. The police power is the authority to regulate private behavior, consistent with constitutional rights and procedures. The standard usually applied to zoning restrictions is that they must reasonably and substantially be related to the police power objectives of protecting public safety, health, morals and welfare. If there is no substantial relation, the restriction cannot be imposed.

Federal Action

The courts determine when a person's religious freedom has been subverted by government laws or actions. In recent years, the judiciary has addressed such issues as prohibiting the use of peyote (a hallucinogenic drug) or requiring the display of a fluorescent orange triangle on an Amish buggy as potential constraints to religious freedom. Justice Antonin Scalia, writing in Employment Division, Department of Human Resources of Oregon vs. Smith, noted that the religious freedom guaranteed by the First Amendment has never been interpreted to mean " ... than an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."² Many religious communities viewed the Smith decision with concern because they believed the holding departed from a higher standard of judicial review (strict scrutiny) for religious exercise cases to a standard of "rational review." Under the strict scrutiny standard of review, a state or local government must show a compelling governmental interest in regulating the activity in question. Under the rational review standard applied in Smith, the government must show only a rational basis for regulating the proposed activity. Many federal officials and religious groups believed that state and local governments should be given that degree of deference.

The Coalition for the Free Exercise of Religion--a coalition of religious and legal academics that is concerned about the Smith decision--successfully lobbied Congress to protect what they believed were endangered religious liberties. In direct response to the Supreme Court's opinion in Smith, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to restore certain protections against government infringement upon the free exercise of religion. The bill codified the "compelling interest" and "least restrictive means" standards that the coalitions wanted applied by the courts to resolve religious freedom cases. RFRA mandated that a government (state, local or federal) must have a compelling interest--a higher judicial standard of scrutiny--before it can impose limits on the exercise of religion, and that the governmental entity had used the least restrictive possible means to do so.

According to Black's Law Dictionary, "compelling state interest" is a term used to uphold state action in the face of attack grounded on Equal Protection or First Amendment rights because of serious need for such state action.³ The term also is employed to justify state action under the police power of the state. The compelling interest and least restrictive means tests are some of the most difficult legal standards for a government to meet when challenged with a violation of a fundamental right, such as the free exercise of religion. Justice Anthony Kennedy wrote that, "Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law."⁴

In 1997, the U.S. Supreme Court invalidated RFRA as it applied to state and local governments in City of Boerne vs. Flores. The city prohibited the Catholic diocese from enlarging a church building, relying on city ordinances that govern historic preservation. The Supreme Court held that Congress, in adopting RFRA, had exceeded its authority under section five of the 14th amendment to the U.S. Constitution. The court's opinion explained that section five of the 14th amendment applied to the states as a "remedial" provision. This meant that federal legislation enacted under this section must seek to remedy a particular pattern of wrongdoing committed by the states. The court reviewed the legislative history of the RFRA and determined that Congress had not proved a pervasive pattern of state and local government discrimination toward religious entities that warrants the passage of federal legislation.

"Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by an individual who alleges a substantial burden on his or her free exercise of religion."⁵

As reported in State Legislatures, "(T)he Supreme Court struck down the federal Religious Freedom Restoration Act on the grounds that Congress had exceeded its authority and intruded in the affairs of state and local governments. The measure would have forced state and local officials to give special deference to claims involving the 'free exercise of religion'."⁶

"In City of Boerne vs. Flores, the Court adhered to its view that states can enforce 'neutral and generally applicable laws' even when they infringe on someone's religion. While states may give exemptions that are based on religion, they need not do so."⁷

In response to the Supreme Court's ruling that RFRA was unconstitutional, several U.S. senators sponsored "The Religious Liberty Protection Act of 1999" (HR 1691). The bill was amended and reintroduced by Utah Senator Orrin Hatch in July 2000 as "The Religious Land Use and Institutionalized Persons Act of 2000" (S 2869).⁸ This bill sought to circumvent the constitutional problem encountered by its predecessor RFRA by basing congressional authority on the Spending and Commerce Clause powers enumerated to Congress in the U.S. Constitution. The bill passed both houses of Congress on July 27, 2000, and President Bill Clinton signed the legislation on Sept. 22, 2000.⁹

The Religious Land Use and Institutionalized Persons Act of 2000 states that zoning regulations that place a substantial burden on the exercise of religion are improper unless local officials show a compelling governmental objective or that the regulation is the least restrictive means of furthering compelling governmental interests. The bill also seeks to ensure that people in institutions (mental hospitals and prisons) can practice their faith freely by requiring the same compelling interest or least restrictive means test.

According to Senator Hatch, in a July 27, 2000, press release, "At the core of religious freedom is the ability for assemblies to gather and worship together. Finding a location to do so, however, can be quite difficult when faced with pervasive land use regulations. Under current law, an assembly whose religious practice is burdened by an otherwise 'generally applicable' and 'neutral' law can obtain relief only by carrying the heavy burden of providing that there is an unconstitutional motivation behind a law, and thus, that is it not truly neutral or generally applicable. Such a standard places a seemingly insurmountable barrier between the religious assemblies of our country and their right to worship freely."¹⁰

According to the press release, " ... the bill does not provide a religious assembly with immunity from zoning regulations. If the religious claimant cannot demonstrate that the regulation places a substantial burden on sincere religious exercise, the claim falls without further consideration."¹¹

Proponents

The Coalition for the Free Exercise of Religion, a coalition of more than 80 religious and legal advocacy groups (including the American Jewish Congress, the American Muslim Council. the Christian Legal Society, the Church of Jesus Christ of Latter-Day Saints, the Episcopal Church, the Family Research Council, the Baptist Joint Committee, People for the American Way, and the American Civil Liberties Union) supported the Religious Land Use and Institutionalized Persons Act.

Americans United for Separation of Church and State withdrew its support for a related bill, the Religious Liberty Protection Act, on the grounds that the bill was too broad to pass judicial scrutiny. Instead, the group supported the Religious Land Use and Institutionalized Persons Act because it was limited to land use and prisoners' religious rights. The group believes " ... the Supreme Court is moving to reduce congressional authority to impose legislative restrictions on state activity, and that the 'compelling state interest' standard is the proper one to apply to government actions that affect the free exercise of religion."¹²

Opponents

The National Trust for Historic Preservation opposed enactment of federal legislation to create a broad exemption for religious institutions from land use regulation. A land use-specific act would hinder the ability of local communities to adopt and apply zoning, planning, historic preservation and other types of generally applicable laws to protect community character and the quality of life.

The National Trust argues that exemptions confer special privileges or benefits on certain property owners based solely on their religious affiliation. The trust recommended changes to the bill, including a definition of "substantial burden;" allowing local governments the opportunity to "cure" any substantial burden by accommodating religious expression before being subject to possible litigation; placing a limit on judicial remedies for claims to injunctive relief only; that religious claimants would bear the full burden of persuasion that it has been substantially burdened by governmental action; and language affirming local governmental authority to adopt and apply land use laws and regulations. The sponsors of S. 2689 did not adopt any of these suggestions.

The National League of Cities (NLC), the National Association of Towns and Townships (NATAT) and the National Association of Counties (NACo) also opposed the bill on the grounds that it served as a massive federal preemption of local zoning authority for religious entities and represented a direct assault on traditional notions of federalism. The NLC, NATAT and NACo believe that zoning and land use regulations are purely local issues that should be addressed at the local level. The NLC is concerned that local governments will be the focus of litigation that attacks efforts to coordinate zoning and land use regulations as a means to uphold public safety, health and welfare concerns.

NATAT is concerned that the bill's religious use designation creates a class of land uses that are treated differently than others. "This legislation not only puts religious institutions in a special class, where they do not have to abide by neutral laws of general applicability, but it puts an undue burden on localities to justify their land-use ordinances, which are designed to protect the health, safety and public welfare of their community."¹³

These national organizations also are concerned that enforcement of state and local fire and building codes could be compromised. The NLC believes the bill would allow religious groups to provide alternative requirements to fire and building codes if the groups allege that the codes are too burdensome. There is concern that the RLUIPA will have a chilling effect upon a local government's ability to regulate such land use features as parking, building height, size and setbacks, landscaping and traffic that traditionally are governed by local land use and zoning regulations. Another concern is that religious groups would seek an exemption from the Americans with Disabilities Act (ADA) requirements for all new construction, on the grounds that the ADA is too burdensome. The NLC also is concerned that, under the federal bill, religious groups could circumvent enforcement of environmental and historic preservation laws.

At its annual conference on July 16, the NACo Board of Directors issued a unanimous statement opposing S 2869. "This law would place the health, safety and environment of our communities at risk. We fully support religious freedom, but this bill is not about addressing discrimination. It's about taking control away from neighborhoods and giving it to Washington," said then-NACo President C. Vernon Gray.¹⁴

The National Association of Attorneys General (NAAG) also provided information to the House Judiciary Committee in opposition to the bill's provision regarding state prisons. NAAG relayed to Congress that a number of prison gangs and racial hate groups had claimed "religious" status under the previous RFRA as a means to thwart officials' actions to limit their activities. The enactment of RFRA was followed by a dramatic rise in religions that taught principles in conflict with rehabilitation (e.g., Satanism). Prison officials also received a significant increase in "religiously motivated" requests for alterations to operating procedures. NAAG expressed concern that the states would face another round of expensive and frivolous lawsuits from inmates if the bill addressed state prisons.

Tom McCoy, a law professor at Vanderbilt (Tenn.) University, believes that, "Ninety-nine percent of interferences with religion [by state laws] are accidental. I do believe that Smith was wrongly decided. I do think the free exercise clause should protect religious beliefs and actions from accidental governmental interference, unless government has a good reason. But I don't think Congress or legislatures can fix the problem. The only way to fix it is for Smith to be overruled."¹⁵

State Legislation

The Boerne decision did not preclude states from enacting legislation on this issue. The Coalition for the Free Exercise of Religion formed a state RFRA task force to sponsor bills in every state; at least 23 state legislatures have considered or passed state religious freedom bills. Although some bills mirror the RFRA, other legislatures have modified the model legislation.

The coalition has argued that state and local land use regulations burden the free exercise of religion in specific situations.

Some regulations prohibit the use of private homes as regular sites for religious assemblies and services.
In some communities, it is difficult to locate a new house of worship anywhere.
Some communities permit houses of worship, but restrict the kinds of activities that may be performed.
Land use regulations--especially historic preservation statutes-restrict the ability to change or meet the congregation's needs and concerns.

Marci Hamilton, a constitutional law scholar who represented Boerne city officials and argued against the federal RFRA in the Supreme Court, says state RFRAs will " ... open a Pandora's box of unimagined problems. State RFRAs will displace the Smith standard of review in every case and controversy involving claimed burdens on religious conduct and replace it with a standard that gives religion significantly more leverage."¹⁶

Ira C. Lupu, a George Washington University (D.C.) law professor thinks, " ... it is a mistake to enact these bills. You cannot reduce religious liberty to a simple formula; you can't codify religious liberty and make it work."¹⁷

Arizona considered--but did not pass--bills during the 1999 (SB 1391, Spitzer) and 2000 (SB 1107, Smith) sessions to provide that a government could not burden a person's exercise of religion even if the burden results from a rule of general applicability. Exceptions were provided if the burden was in furtherance of a compelling governmental interest and it was the least restrictive means of furthering the compelling governmental interest. SB 1107, also included language that a government may burden an inmate's exercise of religion only if the rule, policy, act or regulation is reasonably related to a legitimate penological interest (crime deterrence, inmate rehabilitation or institutional security).

Senator Joe Baca offered SB 38 during the 1999-2000 session in California but has withdrawn the bill. The bill provided that the adoption or application of a land use law with the effect of prohibiting or restricting the time, place or manner of operation of a religious assembly or institution must meet two requirements: 1) it must impose no greater restriction on the religious assemblies than nonreligious assemblies with a similar effect on land use; 2) if there is a substantial burden on the free exercise of religion, it must have a substantial connection to an important governmental interest and be supported by the weight of the evidence. SB 38 would have applied to all land use laws adopted before or after Jan. 1, 2000. The bill did not allow monetary damages against state and local agencies for land use laws adopted prior to this date. The bill, if adopted, could have been used as either a claim or a defense in an action against a city or county, and the party can seek relief, including damages.

In 1998, AB 1617 (Baca), a much broader bill, was passed by the Legislature but vetoed by Governor Pete Wilson. University of California, Los Angeles, law professor Eugene Volokh provided testimony about this earlier bill. He believed the legislation " ... would make it harder for the government to control its employees, its public school students, its property, and its prisons."¹⁸

Connecticut enacted a state Religious Freedom Protection Act in 1993.¹⁹

Colorado approved HB 100-1176 during the 2000 session. The new act prohibits local governments from limiting when or how frequently individuals may meet at private residential property to pray, worship, study or discuss issues related to religious beliefs.²⁰

Florida passed the Religious Freedom Restoration Act during the 1998 session; the bill became law without the governor's signature.²¹ During the 1999 session, a resolution (S 66, Grant) calling for a constitutional amendment to prohibit the state from substantially burdening the free exercise of religion was considered by the Senate; the resolution died in the Judiciary Committee.

Louisiana and Michigan considered--but did not pass--bills that provided exemptions for certain groups of people or for certain actions from the compelling interest and least restrictive means test; the bills also would have prevented prisoners from invoking the legislation.

Idaho passed legislation, effective Feb. 1, 2001, to ensure that free exercise of religion is a fundamental right and that neither the state nor a political subdivision may substantially burden a person's exercise of religion. The only exceptions must be based on a demonstration that the burden is essential to further a compelling state interest and is the least restrictive means of furthering that compelling governmental interest.²²

Illinois Senator Kathleen Parker introduced a bill in March 1998, stating, "Even though the U.S. Constitution and Illinois Constitution both provide for freedom of religion, it's critical to have religious freedoms protected by state law with an appropriate mechanism in place to determine whether a person's rights have been violated." The bill passed both houses and was signed by the governor on Dec. 2, 1998.²³

Maryland Delegate Samuel Rosenberg sponsored a bill, HB 966, during the 1999 session, but he withdrew the bill from consideration.

Missouri considered SB 370 (Flotron) during the 1999 session. Two bills were considered during the 2000 session, HB 1799 (Kelly) and SB 551 (Flotron); neither bill survived the session.

New Mexico passed a state RFRA (SB 644, McSorley) during the 1999 legislative session. The governor vetoed the legislation.

The New York State Assembly considered companion bills--S 24 (Kruger) and A 5139 (Silver) --during the 1999-2000 session. These bills would prohibit the state and its political subdivisions from enacting or enforcing any law that substantially burdens a religious belief or practice unless there is a compelling governmental interest and such law is the least restrictive means necessary to accomplish such interest. Anyone who claimed his religious exercise was so burdened and prevailed in a lawsuit would be entitled to attorney's fees and costs. The legislative findings included the comment that laws that are "facially neutral" to religion and may burden one's religious exercise and profession. A 5139 passed the Assembly in 1999 and died in the Senate. It was returned to the Assembly and assigned to the Governmental Operations Committee. S 242 was assigned to the Senate Finance Committee.

Oregon Representatives Starr and Atkinson introduced a bill (HB 3469) during the 1999 legislative session.

Rhode Island also passed the Religious Freedom Restoration Act.²⁴

South Carolina passed HR 3158 (Campsen) in 1999, with an effective date of June 1, 1999.²⁵

Texas passed SB 138 (Sibley) during its 1999 legislative session. The legislation, effective Aug. 30, 1999, prohibits a government agency from substantially burdening anyone's free exercise of religion, unless the agency can demonstrate that the burden is the least restrictive means of furthering a compelling governmental interest. The legislation provides a maximum recovery of $10,000 in compensatory damages for each offense, without regard to the number of members or others within a religious group who claim injury as a result of the exercise of governmental authority. A claimant cannot recover exemplary (punitive) damages under this chapter. Texas staff noted in the fiscal note that the cost to local government would depend on the number of cases filed under the statute. The bill's limit on compensatory damages and denial of exemplary damages, however, would reduce the fiscal impact of the legislation, according to staff.

Other State Action

In Alabama, voters approved a referendum in November 1998 to amend the state constitution. The amendment applies when any burden is placed on religious conduct, not just a substantial burden.²⁶

State Court Opinions

The North Carolina Supreme Court ruled in April 1998 that a state statute providing tax exemptions for religious nonprofit groups that operate retirement homes subverted the state's constitution and the establishment clause of the First Amendment. Two nonprofit corporations that were denied the tax exemption because they lacked a religious affiliation sued on the grounds that the statute effectively advanced religion in violation of the state's constitution and the establishment clause.²⁷

Marci Hamilton believes that the U.S. Supreme Court's two-part test used to determine whether a law or government action purposes and actually advances or inhibits religion ultimately will prove fatal to state RFRAs. Professor Lupu advocates, "Let state courts work out religious liberty claims under their own constitutions and over time, a richer, fairer body of religious liberty law will emerge."

Conclusion

Based upon the number of land use and zoning lawsuits filed immediately after the passage and signing of the Religious Land Use and Institutionalized Persons Act, this conflict between state and local governments and religious entities will not be resolved quickly. While states and local governments are awaiting review and resolution of this issue-again, by the U.S. Supreme Court--local governments will have to provide adequate roads and meet other infrastructure demands of religious organizations.

Notes

U.S. Const., amend. I.

Employment Division, Department of Human Resources of Oregon vs. Smith (494 U.S. 872, 1990).

Black's Law Dictionary, Fifth ed. (St. Paul, Minn.: West Publishing Co., 1979), 256.

City of Boerne vs. Flores, 521U.S. 507 (1997), http://supct.law.cornell.edu/supct/html/95-2074.ZS.html.
Ibid., 521 U.S. 507, 532.
David G. Savage, "High Court Bolsters States' Rights," State Legislatures 23, no. 8 (September 1997), 13.
Ibid.
Senator Hatch (Utah) was the principal sponsor; senators Robert Bennett (Utah), Thomas Daschle (S.D.), Edward Kennedy (Mass.), Charles Schumer (N.Y.), Michael Crapo (Idaho), Tim Hutchinson (Ark.), Joseph Lieberman (Conn.), and Gordon Smith (Ore.) were cosponsors.
P.L. 106-274, Sept. 22, 2000.
Orrin Hatch, "Hatch Wins Battle to Protect Religious Freedom. Religious Land Use and Institutionalized Persons Act of 2000," press release (Washington, D.C.), July 27, 2000.
Ibid.
Americans United's Stance on the "Religious Liberty Protection Act" Explained, www.au.org/rlpal-ltr.htm, n.d.
"The Washington Report," National Association of Towns and Townships, www.nata.org/natat/WASH_REPORT_ISSUES/2000%20Wash%20Reports/July-August_2000.htm, July/August 2000, 2.
Stephanie Osborn, "Congress Approves 'Religious Land Use' Bill," ICC Newsletter, (Washington, D.C., International Code Council Inc.), September 2000, 4.
Jeremy Leaming, "How sound is legal reasoning for religious-protection bills?," The Freedom Forum Online, www.freedomforum.org/religion/series/keeping.faith3.asp, April 10, 1998, 4.
Jeremy Leaming, "So states pass religious protections-then what?" The Freedom Forum Online, www.freedomforum.org/religion/series/keepingfaith4.asp, April 13, 1998, 2.
Ibid., p. 4.
"Religious Exercise," Senate Judiciary Committee, Analysis of AB 1617, June 30, 1998, www.leginfo.ca.gov/pub/97-98/bill/asm/ab_1601-1650/ab_1617_cfa/19980702_09, 8.
Conn. Gen. Stat. _52-571b (1999).
Colo. Rev. Stat. _29-1-1201 et seq. (2000).
1998 Fla. Laws, Ch. # 98-412 (2000).
Idaho Code _73-401 et seq. (2000).
Ill. Comp. Stat. Ann., ch. 795 _35 (2000).
R.I. Gen. Laws _ 42-80.11-1 et seq. (2000).
1999 S.C. Acts, Act # 38.
Ala. Const. amend. 622.

In re Springmoor, (No. 79PA97), Supreme Court of North Carolina, April 3, 1998

www.ncinsider.com/insider/supreme/1998/supreme0403/springmoor.html.