By Lisa Soronen

The U.S. Supreme Court's ruling in Burwell v. Hobby Lobby that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations, may also have a significant impact on land use regulation. 

For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ruth Bader Ginsburg quoted in her dissenting opinion.

RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion.” The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars state and local governments from enforcing land use regulations that substantially burden “the religious exercise of a person.” 

So, RFRA and RLUIPA are related statutes. But RFRA only applies to the federal government, and RLUIPA only applies in the land use and institutionalized persons’ context. Both apply to “persons.”  

If for-profit corporations are “persons” under RFRA they are also likely “persons” under RLUIPA. 

As Ginsburg points out in her opinion quoting the SLLC’s amicus brief, this will have negative consequences for state and local government:  “[I]t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’  That law applies to land-use regulation. To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute's reach’ and deeply intrude on local prerogatives, contrary to Congress' intent. Brief for National League of Cities et al. as Amici Curiae 26.”  

The SLLC’s amicus brief focused exclusively on how “person” should be defined in RLUIPA. It discussed the practical difficulties that will arise for state and local governments if corporations are “persons” under RLUIPA.

“Interpreting RLUIPA to protect for-profit, secular corporations would dramatically expand the statute's reach. For-profit corporations could avail themselves of RLUIPA's broad definition of religious exercise to characterize secular commercial activity as religious in nature. They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely result would be a dramatic increase in the number of for-profit corporations claiming to engage in ‘religious exercise,’ with a concomitant increased burden on local governments administering land use regulations.”

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.