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Unpublished Paper
Denominations and Denominators: Applying Lucas v South Carolina Coastal Council to Resolve RLUIPA "Substantial Burden on Religious Land Use" Cases
  • Elliott Joh, University of Chicago

The free exercise of religion is a well-protected aspect of American life. Freedom of speech is sometimes curtailed during wartime, and the exclusionary rule prompts hostility when used in conjunction with the Fourth Amendment, but it is rare to hear anyone argue that the freedom of worship should be so abrogated. Discrimination on the basis of religion, however, is not so uncommon, and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) was enacted to combat such discrimination by municipalities and local zoning authorities. Congress’s hope in enacting this legislation was that churches, mosques, and synagogues have a means of protecting themselves from zoning laws that were aimed at driving religious organizations off their land or out of a jurisdiction.Rather than use the RLUIPA as a shield, however, many religious organizations have begun to use Act as a sword by bringing suit whenever zoning authorities reject their requests for rezoning or for a variance (for example, to build a bigger building than the applicable ordinance allows, or to build a church in an area where such a use would not be permitted). This is possible because the RLUIPA’s language forbids any land use regulation that works a “substantial burden” on the religious exercise of a person, where the definition of religious exercise is broad enough to encompass the use of real property for religious purposes. Thus, some courts have interpreted the RLUIPA as disallowing any zoning law that works a substantial burden on any religious exercise (such as the construction or expansion of a single building), while other courts cannot stomach the idea of giving religious organizations essentially an exemption from all local land use laws. Those courts interpret the RLUIPA as forbidding only those land use laws that work a substantial burden on a person’s religious exercise as whole. In addition to this “denominator problem,” courts have also split as to the applicable scope of “religious exercise”and the necessary burden a law has to work in order for it to be “substantial.”This Comment proposes that courts should apply the RLUIPA in a way that mimics the Supreme Court’s regulatory takings jurisprudence; namely, that the “Substantial Burdens”provision should be an easily administerable, per se rule like that announced in the holding of Lucas v. South Carolina Coastal Council. Thus, courts should read the RLUIPA’s “Substantial Burdens” provision to forbid only those land use regulations that deprive a landowner of all religious use of his land. Such a formulation avoids the problem of determining whether a particular land use is “sufficiently religious” to warrant protection by the RLUIPA, and it would avoid the difficulty of determining how much a burden a land use regulation has to be in order to be deemed “substantial”—a land use regulation that allows any religious use to continue would not be considered to work a “substantial burden.”This Comment’s formulation of the “Substantial Burdens” provision also solves the unacknowledged “denominator problem” of having to determine exactly what (a religious exercise, all religious exercise, etc.) is being burdened. Under the Lucas test, the applicable denominator is all economically viable use of the property; likewise, the proper denominator for determining RLUIPA Substantial Burden provisions should be all religious use of the property. In the same way that a court applying the Lucas test does not inquire into the particular economic activities of the landowner, so should a court not inquire into the specifics of a religion (whether a purported practice is sincerely religious and central to one’s religion) in order to determine whether a land use regulation is a substantial enough burden to warrant finding a RLUIPA violation. Rather, the more easily administerable approach would be to announce that the RLUIPA’s “substantial burden” provision is violated only when a land use regulation totally deprives a parcel of land of all its religious use. This framework’s inquiry centers on the burdens on the land rather than on the landowner, and the Copernican shift in focus makes for a much simpler factual inquiry—a court need only examine whether a parcel of land has any religious use available.

  • land use,
  • first amendment,
  • establishment clause,
  • substantial burden,
  • zoning,
  • denominator,
  • Lucas v. South Carolina Coastal Council,
  • freedom of religion
Publication Date
Summer 2008
Citation Information
Elliott Joh. "Denominations and Denominators: Applying Lucas v South Carolina Coastal Council to Resolve RLUIPA "Substantial Burden on Religious Land Use" Cases" (2008)
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