Mosques are all the rage right now down in Newton County, Georgia. In order to prevent the county from being overrun by mosques the Newton County Board of Commissioners placed  a moratorium on the construction of all new places of worship. They had no choice; without a moratorium the county faced the risk of being consumed by mosques. Not really, though. What’s actually happening is that one organization purchased a piece of land in Newton County with the intention of building a mosque and, in response, the county issued a temporary moratorium on the construction of all new places of worship.

Unsurprisingly, this has become a contentious and widely-publicized story. Had the moratorium been for almost any other type of construction, say high-density office buildings, public response would be much more muted. Many communities, particularly those in the rural South, view religion as a cornerstone of society and have shaped their cities correspondingly. The US Constitution prohibits the government from establishing a religion while also protecting the free exercise of religion.  Accordingly, many feel that places of worship should have a more vaulted status in both the social and legal realms of urban and community planning. But Congress’s response to that sentiment may only be burdening our local governments with excessive oversight that achieves very little.

Generally speaking, to jibe with the US Constitution a government need only have a rational basis for implementing development policies. [1] As long as the policy bears some rational basis tied to the government’s ability to zone for the health, safety, welfare, and morals of the community then it will be upheld. For instance, if the county or city feels that the construction of additional high-density buildings in a particular area would undermine the welfare of that community, it can rezone the area to prevent the construction of additional high-density buildings. Up until 2000, when analyzing such regulations as applied to places of worship a court would simply employ the 1st Amendment to assess whether the regulation placed a substantial burden on the free exercise of religion. This is the constitutional test used for other (non-land use) laws relating to the restriction of religious exercise. [2]

Lutheran Church of the Ascension in Savannah

Under 1st Amendment analysis, courts upheld a wide range of regulations that ended up burdening churches despite not being targeted directly at them. These included permit fees that raised the cost of construction, permitting process delays that prolonged the building effort, and zoning regulations that prevented churches from being freely constructed throughout a municipality or county. As long as churches could be constructed somewhere in the city, these mere inconveniences did not constitute a substantial burden.

Congress Acts to Protect Churches

In 2000, the US Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA” or “Act”) in an effort to enhance religious rights. [3] Upset with the idea that cities and counties were treating houses of worship just like any other land use, Congress felt it necessary to intervene. While Congress’s apparent intent was to prevent localities from targeting religious land uses with excessive burdens, many feel RLUIPA acted to give preferential treatment to such uses.

The Act stipulates that a state or locality cannot place a substantial burden on the exercise of religion though land use regulation. While the government must only prove a rational basis for the implementation of zoning regulations for almost every other use, RLUIPA requires the court to strictly scrutinize the regulation when applied to religious uses. While some would argue that the courts were already employing such analysis prior to RLUIPA, there’s little question that in passing the Act Congress intended to make clear that it wants land use regulations, as applied to religious uses, to be analyzed under a higher scrutiny than just rational basis.  Under RLUIPA, a zoning regulation that substantially burdens the free exercise of a person, assembly, or institution must further a compelling government interest and be narrowly tailored to meet that interest in order to be upheld. [4] This is the same strict-scrutiny standard the Supreme Court uses when analyzing legislation that discriminates based on race.

Courts across the country disagree as to what constitutes a “substantial burden” under RLUIPA. Remember, prior to the Act most courts said the mere inconvenience of not being able to build a church wherever you want was not considered a “substantial burden” for the purposes of analyzing the regulation under the 1st Amendment’s protection of free exercise. The federal judicial circuits have reached differing results in figuring out how to analyze a substantial burden under RLUIPA. More district and circuit courts have been willing to conclude that reducing the number of places churches can be constructed could create a substantial burden on the free exercise of religions. [5]  So the Act has created some uncertainty as to how cities and counties can zone while also complying with the 1st Amendment and RLUIPA.

The real juggernaut of RLUIPA may not be the substantial burden aspect, though. Included in the Act is a provision that prevents states and localities from treating religious institutions on less than equal terms with nonreligious assemblies or institutions. A preeminent case on this topic in Georgia is Covenant Christian Ministries v. City of Marietta. In that case, the City of Marietta excluded churches from a specific residential district citing concerns over traffic and crowds. However, the City allowed playgrounds and parks in that same residential district. Under typical rational basis scrutiny, the ordinance would likely survive since there is some rational basis for such an ordinance. Under 1st Amendment “substantial burden” analysis, the ordinance would also likely survive since many courts would say it is merely an inconvenience to not be able to build in that specific residential district. However, under the heightened strict scrutiny of RLUIPA, the 11th Circuit Court of Appeals found the ordinance lacking necessary basis since playgrounds and parks also cause crowds. The ordinance, though arguably furthering a compelling government interest was a violation of RLUIPA since it did not allow religious uses even though some evidence showed that both nonreligious and religious uses would cause similar traffic and crowd concerns. Therefore, it was not narrowly tailored to meet the compelling interest. [6]

Is Protecting Churches Necessary or Helpful?

RLUIPA requires cities and counties to make concessions to religious uses they may not ordinarily make for other uses. Now all facts would have to be considered, but if zoning prevents religious institutions from having a reasonable opportunity to build in the city, it may be considered a violation under RLUIPA even though the same zoning scheme that works to prevent poorer individuals or other undesired uses in the city would be upheld. Some courts have found setback or excessive frontage or square footage requirements to constitute violations under another RLUIPA provision that prohibits exclusion of religious institutions from cities or counties. [7] Some exclusionary zoning regulations that may be upheld under rational basis scrutiny when applied to poor individuals or undesirable uses will be struck down as a violation of RLUIPA as applied to religious institution.

For example, if a zone requires structures to be a minimum size and that size effectively prevents people under a certain income from constructing homes, we would call that exclusionary zoning because it operates to exclude certain types of people. But such a regulation would generally be upheld since the government could come up with some rational basis for the rule. However, if that same zoning requirement works to prevent churches from building in the zone, it may be struck down as applied to religious institutions under RLUIPA.

Druid Hills Baptist Church in Atlanta

We should question the motivations behind government action. However, RLUIPA appears to be completely unnecessary to uncover and correct actual religious discrimination. During the congressional hearings held to gather information for constructing the Act, only one organization, a religious-based organization, claimed that religious discrimination was a common problem throughout the country. When actual discrimination does occur, the courts are fully capable of investigating and correcting it through pre-existing 1st Amendment analysis. [8]

RLUIPA would only be needed if systematic religious discrimination was rampant to the point that a court should be required to deeply question the motivations behind  every local zoning regulation through strict scrutiny analysis. When little (if any) systematic religious discrimination appears to be occurring, the Act only burdens local governments by making them second-guess every regulation to ensure religious organizations are not burdened in the slightest. Newton County may be showing us an actual example of religious discrimination. But again, the 1st Amendment and 14th Amendment already provide safeguards against such obvious discrimination.

Considering that many of these houses of worship will make tremendous amounts of money while paying no property tax, requiring cities to take extra precautions in zoning for religious purposes seems unfair. This seems particularly true when we allow rampant exclusionary zoning practices that work to exclude from certain areas people who are routinely discriminated against in other aspects of life.

[1] Hamilton, Marci A. RLUIPA Is A Bridge Too Far: Inconvenience Is Not Discrimination. Fordham Urban Law Journal. Volume 30 Issue 4, at p. 968 (2012). <http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2424&context=ulj>

[2] Id. at 966.

The Religious Freedom Restoration Act (RFRA) requires the court to analyze the actions of the federal government as applied to religious exercise under strict scrutiny. This is similar to RLUIPA. The US Supreme Court found RFRA to be unconstitutional as applied to the states, which gave way to the US Congress passing RLUIPA.

[3] Id. at 962

[4] Weissman, Seth G., Dillard, G Douglas, and Skinner, Jill. Zoning and Land Use Law in Georgia. 2013. At page 415.

[5] Hamilton at 972.

The United States Courts of Appeals are divided into circuits based on geographical boundaries. For instance, Georgia is in the 11th Circuit Court of Appeals along with Alabama and Florida and California is in the 9th Circuit Court of Appeals along with Oregon, Washington, Nevada, Arizona, Idaho, and Montana. Each circuit hears appeals from federal district courts within their circuit. A ruling by a circuit creates law only within that circuit. So the 11th Circuit may interpret a question under the US Constitution or a federal statute in a way that differs from how the 9th Circuit interprets the same question. This means the states in the 11th Circuit would operate under different federal law than the states in the 9th Circuit. In such situations, known as circuit splits, the US Supreme Court will generally agree to hear the question in order to create uniform federal law throughout the country. This is how the gay marriage case, Obergefell v. Hodges, reached the Supreme Court. How to analyze the substantial burden question for purposes of land use regulation under RLUIPA is one such situation in which the circuits are split. We’ll have to see if the US Supreme Court believes the split is significant enough to take action.

[6] Weissman, Seth G., Dillard, G Douglas, and Skinner, Jill. Zoning and Land Use Law in Georgia. 2013. At page 418.

[7] Id. at 421.

[8] Hamilton, 963-966.