Religious Land Use law does not violate Establishment Clause, brief says

May 3, 2002

The Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") does not violate the First Amendment's Establishment Clause, according to a supplemental memorandum of law filed today in U.S. District Court in Philadelphia. Last Friday, April 26, Judge Stewart Dalzell heard oral arguments on the constitutionality of RLUIPA, in which The Becket Fund and the U.S. Department of Justice each offered arguments supporting the law's constitutionality. The Establishment Clause argument had been raised for the first time by the Township of Middletown in their reply brief, and Judge Dalzell gave the parties an additional week to file supplemental briefs on the issue.

The Becket Fund, along with local attorney Theodore Hoppe, represents Freedom Baptist Church in its lawsuit against the Township. Religious worship is not a "permitted" use in any zoning district in Middletown. But many other non-religious assembly uses—from fraternal organizations to union halls—are permitted as of right, differential treatment that clearly violates RLUIPA.

In the brief filed today, The Becket Fund notes that federal courts "have consistently held that when land-use laws create exemptions for religious entities for the purpose of relieving burdens on religious exercise, those laws do not violate the Establishment Clause." The Supreme Court held in 1984 (in Lynch v. Donnelly ) that the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions," and in a well-known 1952 case ( Zorach v. Clauson ), went so far as to say that accommodating religious exercise "follows the best of our traditions."

In fact, the brief concludes, "legislative accommodations are all the more common and appropriate since the Supreme Court made clear in Employment Division v. Smith that people of faith should turn primarily to the legislative and executive branches – not the courts – for protection of their religious liberty."

The full text of the brief (PDF format, 56K), and many other related materials, can be found on both of The Becket Fund's web sites: www.becketfund.org and www.rluipa.com.

Relevant Cases

• Freedom Baptist Church v. Township of Middletown