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Protecting Religious Freedom in Land Use: Understanding the Non-Discrimination Provision of RLUIPA

In the heart of the United States, the right to practice one’s religion freely is a cornerstone of our democracy. This fundamental freedom extends beyond the walls of a church or synagogue and into the realm of land use and zoning regulations. A crucial piece of legislation, the Religious Land Use and Institutionalized Persons Act (RLUIPA), safeguards religious institutions from discriminatory practices. At its core lies a powerful statement: “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination” (42 U.S.C. § 2000cc (b)(2)). Let’s delve into the significance of this provision and its impact on religious freedom in land use decisions.

The Essence of the Non-Discrimination Provision

This provision of RLUIPA, often referred to as the “non-discrimination provision,” serves as a shield against unfair treatment of religious organizations in the context of land use. It prohibits governments at all levels—federal, state, and local—from enacting or enforcing regulations that single out religious assemblies or institutions based on their faith or denomination. This protection encompasses a wide range of religious institutions, including churches, synagogues, mosques, temples, and other places of worship, as well as schools, daycares, and other religious facilities.

Roots in the Equal Protection Clause

The non-discrimination provision draws its strength from the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This clause mandates that governments treat individuals and groups equally, without unfair discrimination. RLUIPA applies this principle to land use decisions, ensuring that religious institutions are not subject to discriminatory zoning restrictions or other land use regulations.

Identifying Discriminatory Practices

Discrimination in land use can take various forms, some more overt than others. Overt discrimination might involve explicitly excluding religious institutions from certain zones or imposing stricter requirements on them compared to secular organizations. However, discrimination can also be more subtle, such as applying zoning rules in a way that disproportionately impacts religious groups.

To determine whether a land use regulation is discriminatory, courts consider various factors, including:

  • Historical context: The history of land use decisions in the area and any past discriminatory practices.
  • Events leading to the regulation: The specific events and discussions that led to the enactment of the regulation.
  • Statements and intent: Official statements made by government officials and the overall intent behind the regulation.
  • Impact on religious institutions: The practical impact of the regulation on religious institutions compared to similar secular organizations.

The “No Lesser Harm” Test

A key aspect of the non-discrimination provision is the “no lesser harm” test. This test asks whether the permitted secular uses in a particular zone would cause the same or greater harm to the government’s interests as the proposed religious use. If the religious use would not cause greater harm, then denying that use solely based on its religious nature could be considered discriminatory.

Protecting Religious Freedom in Practice

The non-discrimination provision has played a crucial role in safeguarding religious freedom in numerous cases across the country. For example, it has protected the right of churches to expand their facilities, establish new places of worship in residential areas, and operate religious schools and daycares. In essence, this provision ensures that religious institutions have a fair and equal opportunity to participate in land use decisions and are not unjustly excluded or burdened based on their faith.

Balancing Interests

While the non-discrimination provision provides strong protection for religious institutions, it’s important to note that it doesn’t give them a blank check. Governments still have the right to enact land use regulations that serve legitimate purposes, such as protecting public health, safety, and welfare. However, these regulations must be applied in a non-discriminatory manner and not unduly burden religious exercise.


The non-discrimination provision of RLUIPA is a powerful tool for protecting religious freedom in the context of land use decisions. It ensures that religious institutions are treated fairly and equally, allowing them to thrive and contribute to their communities. By understanding and upholding this provision, we can foster a society where religious diversity is respected and cherished, and where all individuals and groups have the opportunity to practice their faith freely.

If you or your religious group has faced discrimination in zoning, please contact Daniel Dalton or a RLUIPA team member at Dalton & Tomich PLC to evaluate your claim and help you achieve your new worship space.

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