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Who gets decide what “religious exercise” is within the parameters of RLUIPA?

There has recently been an interesting discussion on defining the term “religion” within the context of First Amendment jurisprudence. Judge Kevin Newsom of the Eleventh Circuit Court of Appeals addressed the issue in his concurring opinion in the case of Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transportation Authority, Case No. 22-11787 (11th Cir. COA, 2024) (rel. 01/10/24). The presenting issue was whether the Transpiration Authority’s policy of prohibiting advertisements that “primarily promote a religious faith or religious organization” violates the First Amendment.  The Court quickly answered the question in the affirmative, striking down the policy. In concurrence, Judge Newsome addressed the more difficult question of what is “religion.” He noted the following:

The majority opinion says that the word “religious” has a “range of meanings.” Maj. Op. at ––––. That’s true, but colossally understated. Closer to the mark, I think, is the majority opinion’s recognition that the term “religious” is “inherent[ly] ambigu[ous].” Id. at ––––. Pretty much any criterion one can imagine will exclude faith or thought systems that most have traditionally regarded as religious. Consider, for instance, one definition of “religious” that the majority opinion posits: “ ‘[h]aving or showing belief in and reverence for God or a deity.’ ” Id. at –––– – –––– (quoting The American Heritage Dictionary of the English Language 1474 (4th ed. 2006)). That, as I understand things, would eliminate many Buddhists and Jains, among others.

Or another: “ ‘[b]elief in and reverence for a supernatural power or powers as creator and governor of the universe.’ ” Id. at –––– (quoting the same source’s definition of “religion”). Again, I could be wrong, but I think many Deists and Unitarian Universalists would resist that explanation. And so it goes with other defining characteristics one might propose. Belief in the afterlife? I’m pretty sure that would knock out some Taoists, and presumably others, as well. Existence of a sacred text? My research suggests that at least in Japan, Shintoism has no official scripture. Existence of an organized “church” with a hierarchical structure? Neither Hindus nor many indigenous sects have one. Adherence to ritual? Quakers don’t. Existence of sacraments or creeds? Many evangelical Christians resist them. A focus on evangelization or proselytizing? So far as I understand, Jews typically don’t actively seek to convert non-believers.

Relatedly, what truly distinguishes “religious” speech from speech pertaining to other life-ordering perspectives? Where does the “religious” leave off and, say, the philosophical pick up? Is Randian Objectivism “religious”? See Albert Ellis, Is Objectivism a Religion? (1968). My gut says no, but why? How about “Social Justice Fundamentalism”? See Tim Urban, What’s Our Problem?: A Self-Help Book for Societies (2023). Same instinct, same caveat. Scientology? TM? Humanism? Transhumanism? You get the picture.

Bottom line: No matter how hard they try—no matter how many definitions they supply, and no matter how much guidance they provide—I’m doubtful that policymakers can define “religious” speech in a sufficiently principled and comprehensive way to satisfy Mansky. “What is religion?” just isn’t a question that they are particularly well-suited to answer.1 Cf. Kondrat’yev v. City of Pensacola, 949 F.3d 1319, 1336 (11th Cir. 2020) (Newsom, J., concurring) (“[C]an it really be that I—as a judge trained in the law rather than, say, neurology, philosophy, or theology, am charged with distinguishing between ‘psychological’ injury, on the one hand, and ‘metaphysical’ and ‘spiritual’ injury, on the other?”)

This precision question is one that is raised in RLUIPA cases frequently, with the argument that the Plaintiff is “not really a religion,” or if asked by a Court what test is should apply to determine if a Plaintiff truly is a “religion” engaged in religious exercise.

Fortunately, the determinative question is addressed – to a degree – in the statute itself. Congress provided the following with respect to a “substantial burden” claim under section 42 USC 2000cc of RLUIPA:

  • Substantial burdens

(A)       is in furtherance of a compelling governmental interest; and

(B)       is the least restrictive means of furthering that compelling governmental interest.

  • Scope of application This subsection applies in any case in which:

(A)       the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(B)       the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C)       the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

Importantly, Congress included the following in section 42 USC 2000cc-3  of the statute:

  • Religious belief unaffected.  Nothing in this chapter shall be construed to authorize any government to burden any religious belief.
  • Religious exercise not regulated.  Nothing in this chapter shall create any basis for restricting or burdening religious exercise or for claims against a religious organization including any religiously affiliated school or university, not acting under color of law.

Further, Congress included the definitions in section 42 USC 2000cc-5 of the statute:

(6)        Program or activity.  The term “program or activity” means all of the operations of any entity as described in paragraph (1) or (2) of section 2000d–4a of this title.

(7)        Religious exercise.

  • In general.  The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
  • Rule.  The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

42 USC 2000cc-5

The language of the statute itself provides that Congress requires a very broad interpretation of the term “religious exercise“ by defining it to mean “any” type of religious exercise, and that the use of a building shall be considered “religious exercise

The case law supports a very broad definition of the term “religious exercise” as well. The general rule is that the church has the ability to define the term, not a local government. For example, Courts have determined that the validity of what a plaintiff believes “cannot be questioned,” but instead courts are asked to examine if its beliefs are “sincerely held” and rooted in religious belief.

In Yellowbear v. Lampart, 741 F.3rd 48 (2014) (10th Cir, Gorsuch, J.), then Judge Gorsuch wrote the following with respect to the determination of religious exercise, which, stands the test of time on this particular issue:

Of course, trying to separate the sacred from the secular can be a tricky business—perhaps especially for a civil court whose warrant does not extend to matters divine. But at least one feature of the statute’s “religiosity” requirement often proves relatively unintrusive in its application and not infrequently dispositive: the question of sincere belief. RLUIPA does not offer refuge to canny operators who seek through subterfuge to avoid laws they’d prefer to ignore. Like those who set up “churches” as cover for illegal drug distribution operations. Or those who, facing the difficult realities of prison life, are tempted to seek special dispensations through fraudulent assertions of faith. But in suggesting we may ask whether a claimant truly holds a religious belief isn’t to suggest we may decide whether the claimant’s religious belief is true. After all, “Faith means belief in something concerning which doubt is still theoretically possible.” William James, The Will To Believe 90 (1897). And even if it were otherwise, federal judges are hardly fit arbiters of the world’s religions. When inquiring into a claimant’s sincerity, then, our task is instead a more modest one, limited to asking whether the claimant is (in essence) seeking to perpetrate a fraud on the court—whether he actually holds the beliefs he claims to hold—a comparatively familiar task for secular courts that are regularly called on to make credibility assessments—and an important task, too, for ensuring the integrity of any judicial proceeding.   . . .  

While a RLUIPA plaintiff must show a sincerely held religious belief, the statute protects considerably more than the right to hold that belief in private. RLUIPA protects religious exercises. And as the Supreme Court explained in Smith, “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” . . . Neither must the religious claimant prove that the exercise at issue is somehow “central” or “fundamental” to or “compelled” by his faith.

Just as civil courts lack any warrant to decide the truth of a religion, in RLUIPA Congress made plain that we also lack any license to decide the relative value of a particular exercise to a religion. That job would risk in the attempt not only many mistakes—given our lack of any comparative expertise when it comes to religious teachings, perhaps especially the teachings of less familiar religions—but also favoritism for religions found to possess a greater number of “central” and “compelled” tenets.

To avoid traps like these, Congress has directed courts to protect “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A) (emphasis added). Under this standard, it isn’t for judges to decide whether a claimant who seeks to pursue a particular religious exercise has “correctly perceived the commands of [his] faith” or to become “arbiters of scriptural interpretation.”  . . . Even if others of the same faith may consider the exercise at issue unnecessary or less valuable than the claimant, even if some may find it illogical, that doesn’t take it outside the law’s protection.

Instead, RLUIPA protects any exercise of a sincerely held religious belief. When a sincere religious claimant draws a line ruling in or out a particular religious exercise, “it is not for us to say that the line he drew was an unreasonable one.” . . . (Citations omitted)

In summary, a governmental entity has a very limited role when it comes to determining if a plaintiff is “religious enough,” or engaged in “religious activity,” for purposes of RLUIPA. This is not to say it has no rule in the determine the issue, but rather, it should in most circumstances defer to the Plaintiff and lean into its understanding of religion for purposes of defining religions exercise in RLUIPA.

If you have a question about RLUIPA and if it applies to your religious exercise, please contact one of the experienced RLUIPA professionals at Dalton & Tomich PLC to answer your question.

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