Religious land-use act is constitutional

In 1990, the Supreme Court issued a ruling that made it easier for the government to burden the exercise of religion, holding that if a certain law applies to everyone, then its adverse effect on certain religious practices does not violate the Free Exercise Clause of the Constitution, which protects religious freedom. That case was Employment Division v. Smith, a much-criticized decision which arguably reversed decades of case law on the subject. Congress responded to this ruling by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the government from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a religious institution. The government can prevail if it can show that compelling reasons necessitate this burden on that institution and there is no other way to achieve that compelling interest.

In Westchester Day School v. Village of Mamaroneck, decided on October 17, the Court of Appeals (Cardamone, Raggi and Berman) agreed with the district court that the Village of Mamaroneck violated RLUIPA in denying the permit for a Hebrew school to expand its building for religious purposes. Importantly, the Court of Appeals held that RLUIPA is constitutional.

In fleshing out the elements of a case like this, the Court held that the permit denial violated the statute because it substantially burdened the school. Courts have narrowly interperted the "substantial burden" test; the religious institution will likely lose the case if the zoning decision leaves open the possibility that the institution can achieve its zoning goals in other ways, i.e., a resubmission of the zoning request with modifications.

In addition, the Court held, if the denial of the institution's application will have a minimal effect on its religious exercise, that denial is not a "substantial burden." The Court reasoned, "There must exist a close nexus between the coerced or impeded conduct and the institution's religious exercise for such conduct to be a substantial burden on that religious exercise." Accordingly, the Second Circuit observed, "courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied when the resulting effect is to completely prohibit a religious congregation from building a church on its own land."

So how did the Westchester Day School win the case? It won because the trial court ruled that the zoning application denial was arbitrary and capricious and the denial bore no relationship with public health, safety or welfare. The zoning denial was also unsupported by the evidence. Since there was no other way for the school to achieve its objectives once the municipality denied its application for arbitrary reasons, the Town violated RLUIPA.

Then the Court of Appeals addressed a broader question. Is RLUIPA constitutional as applied to this case? This argument comes up from time to time as defendants suggest that this law violates the constitutional separation of church and state and other constitutional provisions. The Court of Appeals found that RLUIPA does not violate the Commerce Clause because the $9 million construction job sought by the school had at least a minimal effect on interstate commerce. The Court of Appeals also rejected the Town's Tenth Amendment claim. That amendment is known as the "state's rights" amendment because it affords States the right to do what the Constitution does not allocate to Congress. Since RLUIPA does not direct States to require or perform any particular acts, and instead leaves it to the States to determine how to enact and enforce land use regulations consistent with religious freedom, there is no Tenth Amendment problem.

Finally, the Town argued that the Establishment Clause prohibits laws like RLUIPA because the law breaches the separation of church and state. But the Court of Appeals held that the law neither advances nor inhibits religion; it only permits religious practicioners the free exercise of religion without undue government interference. The law also does not create excessive government entanglement with religion. It is not enough for the Town to argue that a law which requires municipalities to treat religious institutions fairly creates undue entanglement.