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Constitutional Concerns with Regulating Assembly Uses Based on Religious Content

The term “assembly use” is a zoning classification for places where people gather for a wide range of group activities. Typical examples include community centers, auditoriums, theaters, meeting halls, and places of worship. These uses are often subject to specific land use regulations designed to ensure compatibility with surrounding land uses and address traffic or parking concerns. Local governments regulate everything from operating hours to occupancy limits. They also try to limit where assembly uses can locate within their jurisdiction. A theater, for example, may not be the best fit for an industrial zone or a residential district.

From a zoning perspective, the main concerns are with the number of people assembling as well as with where and when the assemblies occur. But the reason for the assembly—be it political, recreational, religious, or otherwise—is not truly a zoning concern. If a hundred people are allowed to meet in a building every Saturday morning for a group activity or around a common cause, the impact on surrounding uses, traffic, and parking is the same regardless of the content or purpose of their assembly. What difference does it make if they are there to watch a movie, organize for an election, or pray and worship?

So why do so many local governments still regulate assembly uses based on their content or purpose? And in particular, why do so many still single out “religious assemblies” or “places of worship” for unique or even unequal treatment? Some zoning codes actually have a specific classification for “churches” into which they lump all religious groups despite their significant dissimilarities. While such treatment may not pose a large problem for established churches, new and different religious groups often struggle with this one-size-fits-all approach.

Though many local governments have now ditched the Christian nomenclature and opted to use the more generic terms “religious assembly” or “place of worship,” far too many zoning codes still treat religious assemblies on less than equal terms with their secular counterparts. And though Congress enacted the Religious Land Use & Institutionalized Persons Act in 2000 to prohibit this unequal treatment, there are still communities that treat religious assemblies disparately. Part of the problem may be due to the fact that the courts are divided over how to enforce the law’s straightforward command, and the United States Supreme Court has not yet weighed in to provide clarity.

The Supreme Court has, however, clarified the constitutional concerns with treating religious institutions and assemblies unequally based on their religious character. In a series of cases decided during the COVID years, the Supreme Court held that “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.” Tandon v. Newsom, 593 U.S. 61, 62 (2021). And it has long been established that regulations are not religiously neutral, and therefore subject to strict scrutiny, if they refer “to a religious practice without a secular meaning discernable from the language or context.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). So a zoning code which singles out “religious assemblies” or “places of worship” for particular or disparate treatment should be subject to strict scrutiny. Under strict scrutiny, the government must show that the regulation advances “interests of the highest order” and is “narrowly tailored in pursuit of those interests.” Id. at 546. Local governments would be hard pressed to make that showing.

Going forward, zoning authorities would be wise to scrap the “religious” qualifier altogether when it comes to regulating assembly uses. The easiest way to avoid being sued for discriminating on the basis of religion is to stop discriminating on the basis of religion. In other words, they can and should regulate assembly uses generally and without respect to the religious motivation behind, or religious content of, the assemblies. They can do so by focusing on objective and legitimate zoning criteria such as the size of the assembly or frequency of the assemblies.

If your religious institution or assembly has been blindsided by restrictive zoning and land use regulations, please contact the religious land use attorneys at Dalton & Tomich.

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