If you only pay attention to the hot-button cases that make the nightly news, you may think the Supreme Court is deeply divided in most of its cases. This is simply not true. The Supreme Court issues far more unanimous decisions than 5-to-4 decisions.
One area where the Supreme Court justices appear to agree is in their interpretation of key provisions of the Religious Land Use & Institutionalized Persons Act (“RLUIPA”). Last week, a nearly unanimous Supreme Court ruled in favor of an inmate who wanted to have his pastor pray over and lay hands on him during his execution. In an 8-1 decision written by Chief Justice Roberts, the Supreme Court reiterated that RLUIPA provides “greater protection for religious exercise than is available under the First Amendment.”1 The Court also stressed that once a religious claimant shows that the government regulation imposes a substantial burden on a specific religious exercise, the government must justify the burden with more than just conjecture and speculation. RLUIPA requires a case-by-case analysis and does not allow the government to rely on “broadly formulated interests.”
While the Supreme Court has now decided two major institutionalized persons cases under RLUIPA, the Supreme Court has yet to decide a land use case. Without the Supreme Court’s direction, the federal circuit courts of appeal have split over how to interpret RLUIPA’s land use provisions. The circuits are divided over how to apply the “Equal Terms” provision which says 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.” There is also disagreement over what constitutes a “substantial” burden on religious exercise in the land use context. Unfortunately, until the Supreme Court takes a RLUIPA land use case to resolve these disagreements, the strength of RLUIPA’s land use provisions will vary based on where the religious institution or assembly is located.
In 2018 case, Sixth Circuit Judge Amul Thapar strongly encouraged the Supreme Court to take a land use case. Judge Thapar wrote in a dissenting opinion that the “fault lies not with Congress, but with the courts, which have added requirements into RLUIPA that prevent many religious groups from seeking the shelter that Congress sought to provide.”2 Judge Thapar criticized the courts for not adhering to the statute’s express instruction to “construe the statute in favor of a broad protection of religious exercise, to the maximum extent permitted.” Judge Thapar ended with this parting comment: “There comes a time with every law when the Supreme Court must revisit what the circuits are doing. That time has come.”3
While we wait for the Supreme Court to revisit what the circuits are doing, it will continue to be critically important for religious institutions to work with attorneys who are familiar with the way in which RLUIPA is interpreted by the various circuits. The attorneys at Dalton & Tomich have litigated religious land use cases across the country and are familiar with the divergent circuit court tests. If your religious institution is struggling because of zoning and land use regulations, please give us call.
- Ramirez v. Collier, Case No. 21-5592 (decided March 24, 2022)
- Tree of Life Christian Sch. v. City of Upper Arlington, Ohio, 905 F.3d 357, 378 (6th Cir. 2018)