The Journal of The DuPage County Bar Association

Back Issues > Vol. 15 (2002-03)

The Constitutional Challenge To The Religious Land Use And Institutionalized Persons Act Of 2000: In the Chess Game Between Congress and the Supreme Court, We Are Mere Pawns
By J. Randolph Given

Soon two federal appellate courts will decide the fate of an obscure civil rights law and determine exactly how much protection the Free Exercise Clause of the First Amendment of the U.S. Constitution provides for the religious practices of us all. Both the Ninth and the Seventh Circuits of the U. S. Court of Appeals face a challenge to the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). One or both of these cases probably will end up in the U.S. Supreme Court. This article provides an account of the case in the Seventh Circuit.

Few attorneys or lay people have heard of RLUIPA. Criminal law practitioners know it applies to cases dealing with the rights of prisoners to distribute religious literature or to wear dreadlocks. However, the broader and more profound impact of the Act is in the area of land use law.

Local government regulation of zoning and land use has become nearly universal since it was first upheld by the Supreme Court in 1926.1 The First Amendment of the Constitution contains two guarantees involving religious freedom: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.2 The Fourteenth Amendment of the Constitution applies these same limitations to the states and their various political subdivisions.3 For decades, the Court used the two part test set forth in Sherbert v. Verner to review legislation challenged as violating the First Amendment, asking first whether a law substantially burdened a religious practice, and second whether a compelling governmental interest could justify such an impact.4 This test demanded more justification from government than a mere rational basis for laws burdensome to religious activities. In 1990, the Court abandoned the heightened scrutiny of such laws, resulting in attempts by Congress to reinstate it, including RLUIPA.

The Sherbert test was squeezed out of existence in Employment Div. v. Smith.5 That case involved the discharge of two drug rehabilitation counselors for using peyote for sacramental purposes during a religious ceremony at the Native American Church, in violation of their employer’s policy prohibiting the use of illegal drugs. The two counselors applied for unemployment insurance benefits and were denied benefits because of their violation of the policy. Justice Scalia, writing for the Court, refused to require the State of Oregon to show a compelling state interest to justify its denial of benefits. The Court reasoned that: (1) the law did not have the purpose of burdening religious practice and only incidentally burdened its practice, and (2) that a claim for a religious exclusion requires the state to show a compelling state interest only if it prohibits conduct central to the religion.6

Once can not help but wonder how the Court might deal with the use of a different drug, such as wine used for sacramental purposes in a dry county by a Christian denomination. Congress apparently was bothered by the implications. In response to Smith, Congress attempted to resurrect heightened scrutiny by enacting the Religious Freedom Restoration Act.7

The Religious Freedom Restoration Act was struck down in the case of City of Boerne v. Flores.8 A Texas city denied the Archdiocese of San Antonio a permit to expand a Catholic church in the City. The church accommodated 230 persons, but could not accommodate 40 to 60 parishioners at some Sunday masses. Justice Kennedy, writing the opinion, characterized the Religious Freedom Restoration Act as a direct response to Smith.9 The theme of the opinion was that Congress intruded into the domain of the judiciary by trying to reinstate a higher level of scrutiny of legislation that impacts religious activities. The opinion examined the legislative history of Religious Freedom Restoration Act to make that point.10 However, the City of Boerne opinion virtually ignores the facts of the case in arriving at its decision. Justice Kennedy makes virtually no mention of how the actions of the city, the text of the historic preservation ordinance, and the degree to which they might have burdened the church or its parishioners might have influenced the Court. There is no description of the factors that the City might have considered before deciding to deny the permit. Even if the Court applied only the rational basis test to the case, it should have considered the facts.

The City of Boerne decision became the Court’s move in an unfolding chess game between the legislative and judicial branches. The appellant portrayed the Religious Freedom Restoration Act as an enforcement statute analogous to the Voting Rights Act. The appellee treated the Religious Freedom Restoration Act as merely an unconstitutional attempt by Congress to substitute its judgment for that of the Court. Justice Kennedy distinguished these two pieces of civil rights legislation by stating that the legislative history of the Voting Rights Act was filled with evidence of actual, purposeful discrimination. By contrast, he dismissed evidence of laws burdening religion in the legislative record of the Religious Freedom Restoration Act as anecdotal.11 In the end, the opinion viewed the Act as overbroad and as an impermissible intrusion of the legislative branch into the judicial realm.

In response to Boerne, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000,12 and narrowly applied the more stringent standard of review to laws and regulations that affect institutionalized persons and to local zoning and historic preservation laws. The operative language of the RLUIPA that protects religious practice in the context of the use of land is in Section 2 of the Act, which states:



(1) GENERAL RULE. No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution.

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

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

(2) 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.


(1) EQUAL TERMS. No 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.

(2) NONDISCRIMINATION. 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.

(3) EXCLUSIONS AND LIMIT5. No government shall impose or implement a land use regulation that.

(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

There are two operative sets of protection. Section 2(a) provides for the tougher standard of review of local land use regulations. Section 2(b) requires that religious land uses not be regulated less favorably than comparable non-religious land uses. These two provisions are the real center of the controversy in the Boerne case.

It was Congress’ move. Congress erected some barriers for the inevitable constitutional challenge. RLUIPA, on its face, is narrower in scope and application than the Religious Freedom Restoration Act. This addresses Justice Kennedy’s finding that the Religious Freedom Restoration Act was over broad in City of Boerne. Congress also based its legislation on a broader range of authority than merely the free exercise clause of the First Amendment. Section 2(b) deals with equal protection. Section 2(A)(2) applies to the spending authority of Congress and to the burdens on interstate commerce.13 Land use decisions often involve the acquisition and development of property, and Congress has the authority to regulate those activities.14

The Impact of Zoning and Historic Preservation Ordinances on The Free Exercise of Religion

Zoning and historic preservation ordinances can have profound effects on religious activities. Some examples of existing and pending cases, which illustrate these effects, follow. Orthodox Jews, who walk to temple on the Sabbath, have been denied zoning relief because of inadequate traffic and parking provisions.15 In Connecticut, an ordinance prohibited Bible studies and prayer meetings in private homes.16 The sale of a property from one denomination to another was impacted.17 Some municipalities have sought to prevent some traditional charitable activities of religious institutions, such as providing shelter for the homeless.18 There are even cases in which churches are not considered a permitted use in any zoning district under the local ordinance, necessitating that any new church obtain some kind of special relief from the zoning ordinance.19 This last factual scenario can lead to discrimination against minority sects.

There is some quantitative evidence, based upon reported decisions that prior to the enactment of RLUIPA, lawsuits involving smaller religious groups account for a vastly disproportionate share of lawsuits regarding land use decisions. The results of a study showing that religious denominations which individually account for less than 1.5% of the population, and collectively account for only 8.83% of the population, accounted for 49.6% of all land use litigation involving religious organizations20 were presented to the Judiciary Committee of the House of Representatives when it was considering enacting RLUIPA.21

The City of Chicago Case Pending in the Seventh Circuit

Oral arguments were heard on January 17, 2003, in the case of Civil Liberties for Urban Believers v. City of Chicago.22 That case involves the City of Chicago Zoning Ordinance of 1957, as amended.23

Civil Liberties for Urban Believers (C.L.U.B.) is a group of 50 churches with a membership which can vary from 15 to 5000 members. It alleged that the many of their members have been unable to use their property for religious assemblies due to neighborhood or aldermanic opposition.24 C.L.U.B. contended that the terms of the zoning ordinance combine to make it virtually impossible for churches of all sizes to obtain new sites in Chicago.25 The Chicago Zoning Ordinance allowed churches as a matter of right in its various residential (R) zoning districts; in Business (B) zoning districts, and some commercial districts (C1-C3), churches are allowed only under a Special Use Permit. Churches were prohibited in the remaining commercial districts (C4) and in all manufacturing districts.26 The lack of sufficiently large, vacant sites in the R districts effectively freezes out smaller churches. Larger churches with 500 or more members, need sites of 2 or more acres and therefore, no place of worship can be built in Chicago anywhere without the granting of a Planned Development by city council. There are no standards for such approval.27 The approval process itself is a legislative act, entitled to judicial deference. Finally, C.L.U.B. complained of a system of unconstrained discretion.

C.L.U.B.’s challenges were (1) that the Special Use process is completely discretionary, lacking in adequate standards, (2) that the Special Use Process is costly and politically burdensome, (3) that the map amendment (change of zoning district) process is fully discretionary and without adequate standards, and (4) that the City treats churches unfavorably compared with nonreligious places of assembly. It also challenged the processes for obtaining a Special Use Permit or a map amendment as being too burdensome. The claims involve the Free Exercise Clause, freedom of assembly, and equal protection. Most importantly, C.L.U.B. invoked the heightened scrutiny test and the anti-discriminatory provisions of section 2(a) of the RLUIPA,28 claiming that Chicago has completely banned large churches and treats churches less favorably than other places of assembly.29

The City of Chicago argued that the Zoning Ordinance does not infringe upon free exercise of religion, because it is a neutral land use regulation and does not impose an impermissible burden upon religion.30 Therefore, according to the City, its old zoning ordinance does not violate RLUIPA.31

However, the real issue is the degree of scrutiny. Chicago contends that the Act is beyond the constitutional authority of Congress under Section 5 of the Fourteenth Amendment, which gives Congress the power to enact appropriate legislation to enforce rights embodied in that Amendment. As a means of enforcement of those rights,32 the City cites the Boerne case, arguing that RLUIPA, like the Religious Freedom Restoration Act, is merely an attempt to substitute the Congressional interpretation of the Constitution for the interpretation adopted by the courts.33 The City of Chicago brief goes back to the legislative history of the RLUIPA to contend that Congress considered only the detrimental effects that land use law had upon the location of churches and did not consider whether those laws actually burdened the exercise of religion.34

The Department of Justice (DOJ) filed an intervenor’s brief, which defends the authority of Congress to enact RLUIPA.35 There is a twist in that the DOJ also filed an addendum consisting of an unpublished judgment order of the federal district court for the Eastern District of Illinois, in the case of Christ Universal Mission Church v. City of Chicago, where the court declined to decide whether strict scrutiny applied under RLUIPA, but held that the exclusion of churches from Chicago’s M zoning classifications, in which community centers are permitted, failed the lesser rational basis test.36

One of the amicus briefs makes the interesting argument that the RLUIPA violates the Establishment Clause of the Constitution, as an endorsement of religion.37 The theory is that religious land uses are given special preferences not available to others. That tension between the Free Exercise Clause and the Establishment Clause, which we all learned about in law school, is hardly mentioned in the briefs of the parties. 

Why This Case Must Go Beyond the Seventh Circuit

The Seventh Circuit could decide this case on grounds other than the validity of RLUIPA. However, this is unlikely. The importance of the constitutional issue shows in the trail of amici briefs. The National League of Cities and the International Municipal Lawyers Association have weighed in on the side of Chicago. On the other side, the U. S. Department of Justice has intervened on the side of C.L.U.B. Notable by its failure to file an amicus brief in this case is the American Planning Association (APA), an organization of professional city and regional planners. However, the APA did file a brief in another major case with the same basic issues, which is pending in the Ninth Circuit.38

In fact, the issues are important to most of us, as owners of properties affected by religious activities nearby, and as members of religious associations whose property and activities are affected by land use laws. The real reason that the Supreme Court will decide this case is that the chess game continues, and it is the Court’s move.

1 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

2 U.S. CONST. amend. I

3 The Fourteenth Amendment of the Constitution provides, in relevant part:

Section 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

U.S. CONST. amend. XIV, §§ 1, 5.

4 Sherbert v. Verner, 373 U.S. 398, 403 (1963); see also Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

5 494 U.S. 872 (1990).

6 Id. at 906.

7 42 U.S.C. § 2000bb-1.

8 521 U.S. 507 (1997).

9 Id. at 512.

10 Id. at 515-516.

11 Id. at 530-531.

12 42 U.S.C. § 2000bb-1.

13 Congress has based Section 2(A)(2) of RLUIPA on much more than the constitutional guarantee of the free exercise of religion. It has also based that section on federal financial assistance and interstate commerce.

14 A familiar example of Congressional authority to regulate commerce in the context of real estate transactions is the Real Estate Settlement Procedures Act.

15 Congregation Etz Chaim v. City of Los Angeles, No. CCV 97-5042 (HLH) (C.D. Cal. ) (currently pending).

16 Murphy v. Zoning Comm., 148 F. Supp. 2d 173 (D. Conn. 2001).

17 Congregation Kol Ami v. Abington Township, No. 10-3077 (3rd Cir.) (currently pending);

18 Contra Stuart Circle Parish v. Board of Zoning Appeals, 946 F. Supp. 1225 (E.D.Va. 1996).

19 Court Street Christian Church of Salem, Oregon v. City of Salem, No. 02-CV-6292-HO (D. Ore) (currently pending).

20 Statement of Von G. Keetch, Counsel to the Church of Jesus Christ of Latter-day Saints, before the House Judiciary Subcommittee on the Constitution, May 12, 1999;

21 Ironically, Von G. Keetch, who presented the data to the Judiciary Committee, was a former law clerk of Supreme Court Justice Antonin Scalia. See attorney profile for Mr. Keetch at It was Justice Scalia’s opinion in Employment Division v. Smith that started this whole controversy.

22 No. 01-4030 (7th Cir.) (currently pending).

23 Municipal Code of Chicago, Title 17, §§ 7.1, 8.1, 9.1, 10.1 (1957 and as amended January 10, 1996). In 2000, the City of Chicago adopted a new Zoning Ordinance, not at issue in this case. The appellants contend in their brief that the City adopted the new ordinance for the purpose of thwarting this case. Appellant’s brief at 17;


24 Appellant’s brief at 4.

25 Appellant’s brief at 10, 27.

26 Appellant’s brief at 5.

27 Appellant’s brief at 25.

28 Appellant’s brief at 35-37.

29 Appellant’s brief at 37, 39.

30 Appellee’s brief at 15-28;


31 Appellee’s brief at 42-48.

32 Appellee’s brief at 49-53.

33 Appellee’s brief at 55-56.

34 Appellee’s brief at 55-56.

35 Brief of Intervenor the United States of America;


36 Brief of Intervenor the United States of America, Addendum;


37 These friends of the Court argue that RLUIPA violates the Establishment Clause of the U.S. Constitution, as an endorsement of religion. Brief of amicus curiae, The Alabama Preservation Alliance, National League of Cities, International Municipal Lawyers Association, City of Huntsville, AL, City of New Milford, CT, and Village of Kings Point, NY;

38 San Jose Christian College v. City of Morgan Hill, No. 02-15693 (9th Cir.) (currently pending);

J. Randolph Given is a sole practitioner in Wheaton, concentrating in property law. He received a B.A. from Miami University, a M.C.R.P. (Master of City and Regional Planning) from The Ohio State University, and a J.D. from DePaul University. Prior to becoming an attorney, he was a planner for DuPage County.

DCBA Brief