Back in 2020, the Supreme Court decided several consequential cases related to the religious exercise during the Covid-19 lockdowns. One of these cases, Tandon v. Newsom, dealt with the prohibition of at-home religious gatherings by the State of California while the state also permitted such secular gatherings such as hair salons, movie theaters, and secular sporting events. 593 U.S. 61, 63 (2021). In finding that such a rule was subject to the highest level of judicial scrutiny, the Court stated that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise” and that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.” Id. at 62. This statement has the potential to be of great use to religious land use litigants going forward, and its significance is only now being worked out by the courts.
First, it should be noted that Tandon‘s reasoning is quite similar to one section of the Religious Land Use and Institutionalized Persons Act (RLUIPA). This section states that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S. Code § 2000cc (b)(1). In essence, Tandon v. Newsom‘s rule related to the free exercise clause appears to be a mirror image of this provision. But on both accounts the principle is clear: religious institutions are entitled to the same treatment as other comparable institutions with respect to government regulations of these entities.
In several instances, federal courts have recognized the applicability of the Tandon v. Newsom standard to religious land use cases. For instance, the District Court of Connecticut has applied Tandon to hold that where some secular uses were permitted “as of right,” while religious uses required a special use permit to operate in a particular zoning district, that a law was not neutral and generally applicable and triggered strict scrutiny which is highest level of constitutional review. Omar Islamic Ctr. Inc. v. City of Meriden, 633 F. Supp. 3d 600, 623 (D. Conn. 2022) (the “as of right” uses here included “hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters…”). In another case, Justice Richardson of the Fourth Circuit wrote a concurring opinion describing the importance of Tandon to a land use case before the court. Canaan Christian Church v. Montgomery Cnty., Maryland, 29 F.4th 182, 204 (4th Cir. 2022) (J. Richardson, Concurring) (“If the government regulates religious activities while excepting secular activities for which its stated interest equally applies, then it unjustifiably belittles the religious practices.”).
We will be keeping appraised of future developments in the application of Tandon to land use cases. If you are a religious entity facing discriminatory application of zoning ordinances, the experienced religious land use attorneys at Dalton & Tomich, PLC would be happy to discuss available paths forward for you.
