The following article is a topic that was discussed in the Spring 2001
Environmental Law class and was probably also discussed in fall. It is an
issue that all planners should be aware of ... and proof that the democratic
system of making law requires constant surveillance as it subject to
partisan politics. While the article below is not a particularly compelling
example, keep your eye on the ball; this law: "effectively exempts religious
groups from most local zoning rules unless a community can show a
"compelling" need to impose the restrictions."
Religious Land Use Act Upheld in Zoning Case
Suit involves first test to federal RLUIPA law
Shannon P. Duffy
The Legal Intelligencer
May 10, 2002
When zoning officials in Middletown Township in Delaware County, Pa.,
discovered that a 25-member church was holding regular services in an office
building, they ordered it shut down since the makeshift chapel was located
in a strictly commercial zone that does not allow for any houses of worship.
But Freedom Baptist Church of Delaware County and its pastor, Chris Keay,
took the township to court, arguing that the zoning code violates the First
Amendment rights of the church and its congregation.
The lawsuit also invoked a relatively new and so-far untested law -- the
Religious Land Use and Institutionalized Persons Act -- which effectively
exempts religious groups from most local zoning rules unless a community can
show a "compelling" need to impose the restrictions.
Middletown Township's lawyers responded to the suit by attacking the law
itself, arguing that RLUIPA is unconstitutional because it requires
"preferential treatment" for religious organizations.
Now, in the first decision of its kind, a federal judge on Wednesday upheld
the constitutionality of RLUIPA, finding that the new law does not suffer
from the same flaws that prompted the U.S. Supreme Court to strike down key
provisions of the Religious Freedom Restoration Act (RFRA).
In his 46-page decision in Freedom Baptist Church of Delaware County v.
Township of Middletown, U.S. District Judge Stewart Dalzell of the Eastern
District of Pennsylvania found that Congress was acting within its powers
under the Commerce Clause.
The ruling is a victory for the church's lawyer, L. Theodore Hoppes of
Shields & Hoppes and Becket Fund attorneys Anthony R. Picarello and Roman P.
The church originally filed suit in the Delaware County Court of Common
Pleas and, in a settlement, won the right to stay in the office building.
Dalzell found that the state court settlement didn't moot the federal suit
since the church is seeking monetary damages for the costs of the state
court litigation, as well as attorney fees if it wins the federal suit.
Dalzell rejected defense arguments that RLUIPA is an improper attempt by
Congress to overturn recent Supreme Court decisions.
Instead, Dalzell concluded that Congress carefully avoided the problems that
had proven fatal to RFRA. For the most part, Dalzell found that RLUIPA
simply "codifies" the right to freedom of religion as it has played out in
case law from the high court.
To the extent that the law goes further, Dalzell found that since its scope
is limited to land use decisions -- where governments often make "individual
assessments" -- Congress was following the Supreme Court's lead in
distinguishing between neutral laws of general applicability and those
"where the state has in place a system of individual exemptions," but
nevertheless "refuse[s] to extend that system to cases of 'religious
Middletown Township's lawyer, Jennifer Holsten, argued that RLUIPA violates
the Establishment Clause.
"RLUIPA impermissibly advances religion. RLUIPA clearly shows favoritism for
those in a religious organization over those who are not part of one,"
As a result, she said, the law "is not an example of Congress' intent to
provide 'religious protection.' To the contrary, it represents congressional
intent for a 'religious preference.' The RLUIPA arms religious entities with
almost blanket immunity from land use requirements, while providing no such
immunity or protection to non-religious entities. This favoritism violates
the Establishment Clause."
Dalzell disagreed, saying RLUIPA doesn't implicate the Establishment Clause
at all, but instead it must be analyzed under the Free Exercise Clause since
its goal is to protect churches and religious institutions from
But Dalzell also rejected the arguments of Justice Department lawyers who
said RLUIPA did nothing more than reiterate the rights and remedies already
available in a civil rights suit under Section 1983.
Instead, Dalzell concluded that RLUIPA "in fact places a statutory thumb [on
the scale] on the side of religious free exercise in zoning cases."
But since Congress was acting to remedy a problem, Dalzell found that the
thumb was properly on the scale.
Sens. Ted Kennedy and Orrin Hatch, the two co-sponsors of RLUIPA in the U.S.
Senate, stated that they had compiled "massive evidence" that churches and
synagogues were routinely denied the right to build, buy, or rent space -- a
right they termed "an indispensable adjunct of the core First Amendment
right to assemble for religious purposes."
Their joint statement said that "churches in general, and new, small, or
unfamiliar churches in particular, are frequently discriminated against on
the face of zoning codes and also in the highly individualized and
discretionary processes of land use regulation. Zoning codes frequently
exclude churches in places where they permit theaters, meeting halls, and
other places where large groups of people assemble for secular purposes. Or
the codes permit churches only with individualized permission from the
zoning board, and zoning boards use that authority in discriminatory ways."
Holsten argued that Congress exaggerated the problem and that, for
federalism's sake, Dalzell should reject a law that upset the traditional
divisions of power in which zoning decisions are left to local governments.
Dalzell disagreed, saying it was not his place to second-guess Congress.
"Whatever the true percentage of cases in which religious organizations have
improperly suffered at the hands of local zoning authorities, we certainly
are in no position to quibble with Congress's ultimate judgment that the
undeniably low visibility of land regulation decisions may well have worked
to undermine the Free Exercise rights of religious organizations around the
country," Dalzell wrote.
"And the mere fact that zoning is traditionally a local matter does answer
Congress's undoubtedly broad authority ... to regulate economic activity
even when it is primarily intrastate in nature."