Introduction
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)1 governs two broad areas of local and state government regulation: religious land-use regulation and religious regulations governing institutionalized persons.2 This Note focuses on the land-use regulation portion of the law. In particular, the purpose of this Note is to examine the negative external impacts the law creates. When a law benefiting one group negatively impacts another group, the negatively impacted group is called a third party. In the RLUIPA context, granting a zoning accommodation to a religious institution can harm third-party landowners who are otherwise bound by the zoning laws. A discussion of the issues related to third-party harms arising from RLUIPA has been absent from court opinions and academic literature.3
When religious institutions exercise their statutory right under RLUIPA, third parties can be forced to bear the cost. There is a long-standing principle that religious accommodations should not unduly burden non-beneficiary third parties.4 The Supreme Court has acknowledged there is room for some limited accommodation within the parameters of the First Amendment’s religious clauses.5 Even assuming RLUIPA is an allowable accommodation, when it creates significant third-party harms it should garner closer attention than it has. Some scholars have even gone so far as to impugn any accommodation that negatively impacts others.6 At least a few of the Founders shared this view. Madison noted in his writings the importance of both the freedom to practice and freedom to not practice religion, bemoaning the power of the clergy to negatively impact others;7 Jefferson seemingly agreed.8 Although RLUIPA can create third-party harms, the law need not be invalidated on these grounds alone. Instead, guided by the principles of the third-party harm doctrine, courts should recognize third-party harms and seek to mitigate them, while upholding the text and intent of the law. To cure a third-party harm, courts must determine who should be allowed to bring a third-party claim, what standard of review should be applied, and what the remedy for successful claims should be.
This Note suggests splitting claimants into two distinct groups to analyze third-party harms arising from RLUIPA. Group one encompasses public entities responsible for making and enforcing land-use laws, such as local governments and zoning boards. Group two covers private entities such as local residents and private landowners. There are fewer options for group one claimants since RLUIPA directly addresses this group.9 RLUIPA establishes the standard of review to be applied to public entities, as well as when accommodations can be denied.10 Group two, however, is not addressed anywhere in the statute.11 For this reason, more options should be available to group two claimants seeking to mitigate third-party harms. This Note argues that group two disputes should be resolved using well-established nuisance doctrine—available in other land-use disputes.12 Applying the nuisance doctrine to RLUIPA-created third-party harms can provide a reasonable middle ground for resolving many RLUIPA disputes.
In Part I, this Note begins by outlining the history of RLUIPA, starting with its predecessor statute, RFRA, and explains the need for religious protection in land use. This Part ends with an analysis of RLUIPA’s statutory text. Part II looks at how RLUIPA has been applied since its passage. Part III introduces the third-party harm doctrine. This section provides an overview of how third-party harms arise from religious accommodations and how courts have historically handled the issue. With a firm background of RLUIPA’s goals and the issues of third-party harms, Part IV turns to the issue of third-party harms arising from RLUIPA accommodations. This Note seeks to distinguish between different third-party harms by looking at who is impacted, distinguishing public and private entities. Part IV then discusses why courts should apply a lower standard of review to public entities and why the nuisance doctrine should be used for private entities.
I. Background
A. Codifying Strict Scrutiny—Passing RFRA and RLUIPA—Background and Context
President Clinton signed RLUIPA into law on September 22, 2000.13 The law received broad bipartisan support, passing both houses of Congress without objection.14 The impetus for the succession of laws leading to RLUIPA began with the Supreme Court’s decision in Employment Division v. Smith.15 The issue in Smith was whether Oregon violated the Free Exercise Clause by denying Native American church members unemployment benefits based on peyote usage taken as part of a religious practice.16 Relying in part on the Supreme Court’s Sherbert v. Verner decision,17 the Oregon Supreme Court held the Oregon law violated the First Amendment.18 The U.S. Supreme Court granted certiorari to determine whether the First Amendment’s Free Exercise Clause protects employees’ unemployment benefits when the work-related misconduct leading to discharge arises from an activity outside the workplace and is part of a genuine religious practice that is illegal under state law.19 The Supreme Court reversed, holding that state laws of general applicability that created incidental burdens on religious practices did not need to be justified by a compelling governmental interest.20 Many, including Justice O’Connor, have argued Smith’s holding departed from long-standing First Amendment jurisprudence.21 Effectively, Smith held that no law, regardless of its impact on any religion, would be invalidated so long as it was broadly and neutrally applied.22 Before Smith, Sherbert v. Verner reigned as the established view on religious rights under the First Amendment.23 The Sherbert Court held unconstitutional a policy requiring religious adherents to choose between working on their Sabbath or foregoing unemployment benefits.24 Sherbert applied a strict scrutiny standard to a state’s action that impeded religious practice. South Carolina’s policy in Sherbert failed to meet the strict scrutiny standard because the unemployment policy impeded Sabbath observers by forcing them to choose between their religion and unemployment benefits, and the law lacked a compelling state interest.25 The strict scrutiny standard used in Sherbert, and its progeny,26 was the standard pre–Smith approach to religious challenges under the First Amendment.27
Many see Smith as an inflection point, ending the Supreme Court’s shift toward favoring religion that began with Sherbert.28 Although strict scrutiny is a difficult burden to meet, it at least provided litigants a chance to show that a burdensome law lacked any compelling state interest. Under Smith, strict scrutiny was no longer standard practice. The Smith Court found that applying Sherbert’s strict scrutiny standard in Smith would create a “constitutional anomaly.”29 In cases before Smith, applying strict scrutiny led to the equality of treatment between the religious and non-religious, without creating an exclusion for religious adherents only.30 Applying strict scrutiny in Smith would have exempted practitioners from generally applicable laws that would otherwise continue to bind non-practitioners.31 Smith held that Free Exercise claims could not prevail over laws of general applicability.32 The standard established in Smith and the departure from a strict scrutiny test spurred legislative action.33 Issues related to “centrality of a belief,” “compelling state interest,” and “generally applicable laws” were all factors in RLUIPA’s final wording.34
Following Smith, strong bipartisan backlash ensued.35 In an effort to roll back Smith, Congress passed a new law, the Religious Freedom Restoration Act (RFRA),36 with overwhelming bipartisan support in both houses of Congress.37 RFRA’s goal was to restore the prior legal standard, established in Sherbert and Wisconsin v. Yoder, as the governing standard for free exercise cases.38 RFRA states that federal and state laws are invalid as applied when they impose a substantial burden on religion in the absence of a compelling governmental interest served by the least restrictive means.39 Following the federal government’s example, many states passed RFRA-like statutes as well.40
In City of Boerne v. Flores, the Supreme Court partially struck down RFRA as unconstitutional, holding its application to state governments exceeded Congress’s legislative authority.41 City of Boerne followed a now-familiar RLUIPA-type fact pattern.42 In that case, an archbishop, in response to increased membership, applied for a building permit to enlarge a church.43 The City denied the application because of the church’s location in a designated historic district.44 On appeal, the church argued the permit denial violated RFRA.45 A strongly worded Supreme Court opinion found Congress exceeded its enforcement power under § 5 of the Fourteenth Amendment. 46 Although RFRA is no longer applicable to the states, RFRA remains enforceable for all federal laws.47
B. The Need for Religious Protection
A determined effort to find a City of Boerne workaround ensued.48 Three years after City of Boerne, Congress passed RLUIPA.49 Based on nine hearings over three years, Congress identified two areas where religious discrimination protections were most needed—land-use regulation and incarceration.50 Remarks on the Senate floor described some shocking committee findings.51 The findings included examples of explicit use of race or religion as reasons for excluding proposed churches from an area, with small and unfamiliar churches facing the most frequent discrimination.52 Commonly given reasons for permit denial—such as increased traffic or inconsistency with the city’s land-use plan—were easily identified as pretextual.53
Congressional and academic findings in the period following the City of Boerne decision uncovered many instances of racial and religious discrimination by towns in their land-use decisions that motivated Congress to find a RFRA replacement.54 For example, towns seeking to exclude a racial minority from an area found that controlling where a church was allowed to go often dictated where people of that faith chose to live.55 Professor Douglas Laycock relayed one particularly poignant anecdote of a town using land-use control to exclude racial minorities.56 In a conversation between Laycock and a Texas legislator regarding the then-proposed Texas RFRA statute, the legislator predicted that any statute removing a town’s ability to keep Black churches from white neighborhoods would not pass.57 Another example of religious land-use discrimination was told by representatives of a Hispanic church who were unable to get a permit in a Chicago suburb.58 When the church representatives complained, the city mayor told the city manager to deny the permit because “[w]e don’t want S[****] in this town.”59 Conversations like these demonstrate elected officials’ awareness that controlling religious institutions’ land use means indirectly controlling the residents choosing to move to an area.
Following Smith, neutral laws of general applicability were to be upheld, even if no compelling governmental interest was progressed by denying an accommodation.60 The Smith standard, highly deferential to governments, stacked the cards against religious institutions. A rare example of a religious institution prevailing pre-RLUIPA is LeBlanc-Sternberg v. Fletcher.61 In Fletcher, a Hasidic Jewish community faced discrimination over where synagogues could locate.62 Given the Jewish religious practice forbidding driving on the Sabbath—a particularly important day for religious worship—Orthodox Jews must live within walking distance of a synagogue.63 Using this prohibition, local legislatures in Fletcher sought to control where Orthodox Jews would move by restricting where synagogues were allowed.64 In Fletcher, the Second Circuit found the Village of Airmont—previously an unincorporated town—incorporated itself with the express purpose of keeping out the Hasidic Jewish population.65 Once incorporated, the town enacted zoning policies restricting religious worship in private homes.66 The town also required that all new houses of worship be built on at least two acres of land, an extremely expensive endeavor in that community.67 Testimony by a property developer at trial confirmed statements by the original community president that keeping Hasidic Jews out of the community was a central reason for incorporation.68 Fletcher demonstrated how efficiently town officials used zoning restrictions on houses of worship to control minorities from moving to a community.
In the period before RLUIPA’s passage, evidence suggests there was discrimination against religious institutions in the zoning codes themselves. A survey of Chicago commercial districts found no place where a church could exist without a special use permit, while arenas with seating up to 2,000 people required no permit.69 While the city envisioned suburbs as the place churches should be, only about a third of residential neighborhood zoning laws permitted churches.70 Even where zoning laws did not exclude them, churches often faced other zoning challenges. For instance, the lack of parking in many suburbs often meant that gatherings could not occur without violating a separate set of zoning laws.71 Churches that found suburb lots often paid significantly more than similarly sized lots in commercial areas.72
Congress’s goal with RLUIPA was to tackle both the overt and subtle discrimination present in land use.73 Pre-RLUIPA cases were generally limited to determining if zoning decisions were illegal or an abuse of discretion.74 To protect religious land use, Congress sought to reestablish the pre-Smith standard of review via statute.75 Under RLUIPA, zoning laws that create a substantial burden on religious practice are subject to strict scrutiny—the most demanding form of judicial review.76 Holding municipalities to the exceedingly high strict-scrutiny standard creates a strong presumption in favor of religious institutions.
C. RLUIPA—Breaking Down the Text
Congress’s goal with RLUIPA was to codify the strict-scrutiny standard that was in place pre-Smith.77 As its third attempt to pass a law of this nature, Congress was determined to pass a law within the legal parameters of the Supreme Court’s prior rulings.78 To address the shortcomings of its prior attempts, Congress designed a much more limited law, focusing on areas where it believed it had jurisdiction and where it perceived the greatest need for protection.79 For ease of analysis, the statute can be broken into three parts.
The first part of the statute, 42 U.S.C. § 2000cc(a)(1), provides that zoning restrictions on a religious entity’s land use must meet the strict scrutiny standard.80 Section (a) is labeled “[s]ubstantial burdens”; RLUIPA applies only to burdens on religious practice that are “substantial.” The term “substantial burden” is used six times in a barely 200-word-long section, but critically, no definition is provided for this critical term on which the statute’s application turns.81 What “substantial burden” encompasses has been the subject of much litigation—currently, there is no one test for determining what constitutes a substantial burden.82
Part two, § 2000cc(a)(2), outlines the statute’s scope and is where Congress most drastically departs from the sweeping coverage of its prior attempts.83 Section (a)(2) limits the application of the statute to three areas: (A) programs receiving federal funds; (B) where a substantial burden affects interstate commerce; and (C) where governments make individualized property assessments.84 Part two also addresses the Court’s Smith decision by applying RLUIPA to rules of general applicability only for parts (A) and (B), which stem from Congress’s spending and commerce clause powers, respectively. 85 Section (C) uses Congress’s remedial power under the Fourteenth Amendment and does not extend to laws of general applicability, 86 resolving the overreach issue with RFRA articulated in the Court’s City of Boerne decision.87
Part three, § 2000cc(b), defines discriminatory action.88 Part three is divided into three sections. First, (b)(1) provides an “equal terms” provision requiring religious and nonreligious land uses be given no “less than equal treatment.”89 Provision (b)(2) addresses discrimination directly, making it illegal to impose a land-use regulation on the basis of religion.90 Section (b)(3) addresses exclusions and prohibits governments from either (A) excluding religious assemblies from their jurisdiction, or (B) placing unreasonable limitations on religious institutions.91
II. Applying RLUIPA
Since its passage, every circuit court has heard at least one RLUIPA land-use case, providing a robust and mature body of law for analysis.92 Justice Department data from the first sixteen years show RLUIPA has been heavily used by religious institutions.93 The Department of Justice has itself opened ninety-six investigations concerning religious land-use discrimination.94 RLUIPA’s intensive use suggests, at the very least, that the law is producing favorable outcomes for religious institutions.
The first land use RLUIPA case in federal court was Murphy v. Zoning Commission of New Milford.95 Murphy in many ways encapsulates a typical RLUIPA case and highlights the third-party harm issue present in land-use disputes. In Murphy, New Milford residents Robert and Mary Murphy began holding group prayer at their home, often with fifty to sixty guests.96 Soon after they started their prayer groups, the Murphys began using their backyard as a parking lot to accommodate guests who were unable to find street parking.97 New Milford’s zoning regulations at that time were permissive, meaning a land use is prohibited unless specifically permitted.98 It did not take long for neighbors to complain to the zoning commission (Commission) about the increased traffic and street and backyard parking.99 Residents also expressed concern for the safety of their children who were accustomed to playing on what had until then been a quiet and safe street.100 Following an investigation, the Commission found the Murphy’s prayer service had increased the neighborhood’s car volume, created more traffic, and raised safety concerns.101 Based on its findings and the neighborhood complaints, the Commission passed a new rule restricting in-home gatherings to twenty-five people.102
In its ruling for the Murphy’s, the district court specifically noted that no evidence was submitted suggesting religious animus played any role in the Commission’s decision or the neighbors’ complaints.103 Despite the Murphy’s admitted religious requirement of just two or more people for prayers, the court found the Commission’s twenty-five person gathering limit was substantially burdensome.104 Interestingly, the court found the town’s interest—ensuring safety and maintaining aesthetics—were legitimate compelling interests.105 However, the court found the town failed to utilize the least restrictive means to progress its goal.106 Because of the religious nature of their activity, the Murphy’s received a RLUIPA accommodation from the twenty-five person gathering rule, despite the undisputed harm to the community, which would have been avoided had the rule been enforced.107 And, since the court’s ruling was an as-applied accommodation, the rest of the neighborhood remained bound by the twenty-five person gathering limit. Neighbors who had purchased homes on a quiet and safe street with ample parking were forced to accept that their homes now neighbored a bustling religious institution. This dramatic neighborhood change came about without any opportunity for community input.108
The first RLUIPA case to reach a circuit court was DiLaura v. Ann Arbor Charter Township.109 The Sixth Circuit held that application of the town’s bed-and-breakfast regulations required a RLUIPA accommodation as applied to the DiLaura’s religious retreat.110 The bed- and-breakfast regulation at issue would have required DiLaura to charge his religious retreat visitors and would have forbade serving meals other than breakfast and periodic snacks; serving wine for communion was also banned under the town’s alcohol service rules.111 As in Murphy, the DiLaura court found the zoning laws were facially neutral, devoid of religious animus.112 However, since the DiLaura court found the bed-and-breakfast rules substantially burdened the DiLaura’s religion, the court ordered the town to issue a religious accommodation from a law that was otherwise legitimate.113
In many ways, these two early cases are representative of a typical RLUIPA suit. RLUIPA suits seem to take far longer to resolve than the average federal court case. For example, DiLaura was not fully resolved until nearly eight years after its initial filing in January 2000114 and took three trips to the circuit court.115 Compared to other cases in its district, DiLaura took nearly four times longer to resolve.116 The two cases are also typical of the kind of land-use regulation and religious land-use conflicts that arise. In both cases, the court acknowledged the township was not acting out of religious animus.117 Both cases involved land-use restrictions that the town deemed necessary for achieving its desired outcome. In Murphy, the town did not want excessive traffic and parking congestion—interests the court accepted were legitimate.118 In DiLaura, the town sought to enforce bed-and-breakfast regulations, and here too the court agreed the goal was legitimate.119 As in other RLUIPA cases, the parties sought accommodations from zoning regulations that were in place before the religious organization’s intended use.120 Finally, these two cases are also illustrative of how RLUIPA impacts third parties.121 In Murphy, the religious accommodation impacted neighbors by allowing more intensive land use that increased noise, reduced parking, and created new risks for their children’s safety; in DiLaura, the religious accommodation impacted the town’s ability to raise revenue through regulation of bed and breakfasts and the service of alcohol.122
III. Issues with Third-Party Harms
A. What Are Third-Party Harms?
The First Amendment enshrines religious liberty into the Constitution. The “religion clause” of the First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”123 The religion clause is generally broken into two parts: the first part is called the “Establishment Clause”; the second part is called the “Free Exercise Clause.”124 Broadly, the Establishment Clause prohibits laws that establish or favor religion, while the Free Exercise Clause prohibits laws that interfere with religion.125 Taken together, the clauses can be seen as being at odds with each other. Strictly construed, the Establishment Clause seemingly requires strictly secular legislation that ardently avoids establishing or favoring any religion. On the other hand, free exercise demands legislation that accounts for the needs of religion and for laws to avoid religious interference.126
Acknowledging this tension, the Court has repeatedly emphasized that the religion clause need not be strictly construed and that there is room for accommodative interpretation between the two clauses.127 Laws like RLUIPA seize on the idea that some accommodation can be granted under the Free Exercise Clause without violating the Establishment Clause.128 Accommodations may even exceed the constitutional minima free exercise requires without offending the Establishment Clause.129
Religious accommodations date back to before the country’s founding.130 The earliest examples of religious accommodations covered activities related to oath-taking and military service.131 Perhaps the longest standing accommodation has to do with the military draft exemption.132 Draft exemptions, accommodating religious adherents whose beliefs forbid fighting, falls within the permissible boundaries of the Establishment Clause.133 However, courts curtail accommodations that create substantial burdens on third parties.134
In the country’s founding era, exemptions frequently required some alternative or offsetting measure. For example, parties who objected to oath-taking on religious grounds were required to make statements of affirmation instead.135 Military service exemptions required paying an extra tax or performing an alternate service.136 Today, religious accommodations are commonplace. An older—but comprehensive—study from 1992 found over 2,000 religious accommodations spread throughout federal and state laws and in practically every part of the U.S. economy.137 Religious accommodations remain prevalent in the statutory text of both old and new laws. For example, the relatively recent Affordable Care Act accommodates religious employers, while the less recent but still highly important Fair Housing Act exempts religious organizations from discrimination laws, despite the exemption’s potential to harm practitioners of disfavored religions.138 When an accommodations burden falls on a non-beneficiary, it creates a third-party harm.139
B. Generally: Third-Party Harms Caused by Religion
Not all third-party harms are the same and not all are equally bad, and even among the bad ones, not all are impermissible. But some third-party harms are clearly impermissible. Courts consider several factors to determine which third-party harms are considered impermissible. The likelihood of a court finding an accommodation impermissible due to its burden on third parties increases when an accommodation’s burden becomes more certain to occur, the anticipated harm is of increased severity, and the impacted party becomes more traceable or specific and less diffuse across the population.
Third-party harms are easily recognized at the extremes. For example, in Reynolds v. United States, an early Supreme Court case addressing religious exemptions derived from the First Amendment, the Court posed a rhetorical hypothetical of a religious observer compelled to perform human sacrifices on unwilling victims.140 Of course, there can be no argument that a religious belief compelling unwilling human sacrifices could ever be legal. Governments have a compelling interest in preserving life, and the harm to a third party in this hypothetical is beyond question.141 The state interest at issue in closer cases is often less obvious than the Reynolds hypothetical. Third-party harms in close cases can also be less obvious and more easily explained away.142 Although many RLUIPA cases fit this borderline area,143 some clearly create third-party harms.144 Examples of cases involving third-party harms are discussed below.145
The easiest accommodations to justify are those with little or no discernable third-party impact. Early religious accommodations for oath-taking and military service are helpful examples.146 Accommodating religious restrictions against oath-taking by allowing a substitute affirmative statement is a perfect example of an accommodation with no third-party impact.147 Accommodating oath restrictions created no more burden on third parties than already existed. Few accommodations fit this easiest-to-justify category.
Military draft exemptions are slightly harder to justify. Draft exemptions impact third parties—vis-à-vis the increased probability of being drafted—and for this reason, they have historically been more controversial.148 But, burdens from a draft exemption are not easily traced to a specific third party.149 The Supreme Court has consistently upheld draft exceptions, despite the substantial third-party impact, while caveating that the First Amendment does not mandate such accommodations.150 Draft exemptions demonstrate that even potentially severe third-party harms, such as risks arising from active military service, can be allowable.
If high personal costs from accommodation are allowable when spread across the population, it follows that high monetary costs spread across the population should also be allowed. Sherbert v. Verner supports this proposition.151 In Sherbert, the Court held that governments could not withhold unemployment benefits when the only available jobs conflicted with sincere religious beliefs.152 Despite the Court’s division over whether the Free Exercise Clause required the state to provide an accommodation, the justices agreed that the state could provide an accommodation.153 Accommodations like the one in Sherbert seem no more objectionable than draft exemptions. In Sherbert, the dollar benefit accruing to each religious observant was high, but the per-person cost to non-beneficiaries was low since the cost of unemployment benefits are spread across an entire state’s population.154 And, when the religious adherents found jobs, they shared in the cost—like everyone else—by contributing to the unemployment fund.155 Sherbert teaches that the costliness of an accommodation, on its own, is not enough to disqualify a religious accommodation.
When no third party comes forward personally claiming harm, even when the matter of the exception directly concerns the third party, the Court has shown a hesitancy to recognize any harm. This was demonstrated in Wisconsin v. Yoder.156 In Yoder, Amish parents faced a criminal conviction for violating Wisconsin’s compulsory school-attendance laws requiring parents to enroll their children in school until they were sixteen.157 In defense, the parents claimed that schooling beyond the age of thirteen violated their religious beliefs.158 Here, the injured third-party harm would have been the children, whom the State claimed would benefit from the additional educational requirements.159 As noted in Justice Douglas’s dissent, the children were never given an opportunity to testify as to their preference for continuing their education, noting that such failures are often deemed a reversible error.160 Absent any showing by the children, the Court found no evidence of any third-party harm, despite the State’s asserted interest on behalf of the children.161 Acknowledging the weakness of their opinion, and in a nod to the dissent, the Court left open the possibility for the children to sue on their own behalf.162 Yoder remains a controversial ruling, drawing diverging views on how its holding should be interpreted.163 The Court’s acknowledgment of the child’s right to sue suggests the existence of a concrete and particularized harm needed for standing.164 Despite the State’s general interest in childhood education, it was unable to vindicate these rights on the child’s behalf. Yoder suggests that states are not in the best position to vindicate a third-party’s harm, even when they are seemingly relied upon to do so. When it comes to third-party harms arising from a RLUIPA accommodation, Yoder seemingly instructs individually injured landowners to bring their claim directly.
In addition to requesting an accommodation, statutes whose primary function is religious accommodation can also create third-party harms. The Court overturned such a statute in Thornton v. Caldor, Inc.165Thornton v. Caldor, Inc., 472 U.S. 703 (1985); see also infra note 2 citing the text of RLUIPA’s Institutionalized Persons provision. The Connecticut statute at issue in Caldor granted all employees an absolute right not to work on any day of the week their Sabbath was celebrated.166 Had the law been allowed to stand, the Court found, it would have created substantial burdens on employers and other employees who would be forced to accommodate their coworkers’ religious practices.167 In addition to the third-party harm created by the law, the statute was completely unqualified, taking no account whatsoever of religious accommodations offered by an employer.168 It is easy to see the parallels between the law at issue in Caldor and RLUIPA: for both, the cost of accommodation primarily burdens private parties, and neither law accounted for accommodations already made.
In a unanimous opinion, the Court in Cutter v. Wilkinson, after finding no evidence of any third-party harm, upheld RLUIPA’s institutionalized-persons provision.169 Prisoners in Cutter sued the prison alleging RLUIPA violations for the prison’s refusal to accommodate the prisoners’ non-mainstream religious beliefs.170 Requests, similar to those made by the prisoners in Cutter, were granted to mainstream religious adherents.171 In its defense, the prison argued, inter alia, that accommodating prisoners’ religious beliefs would harm third parties by requiring the prison to abandon security measures it deemed necessary.172 The prison also alleged that accommodating the prisoners would create an upsurge in religious claims, create administrative burdens, and overburden the already busy chaplain, thereby reducing services to others.173 Critically, all of the prison’s alleged third-party harms were hypothetical.174 The prison raised only a facial challenge to RLUIPA’s constitutionality.175 Because proper application of RLUIPA allowed courts to account for third-party harms, the Court held that the law was facially valid.176 Easily distinguishing the absolute right granted in Caldor, the Court found RLUIPA could be applied in a balanced manner, accounting for third-party harms.177 In its holding, the Court made clear that religious accommodations must be applied carefully, with sensitivity to the concerns of non-beneficiary third parties.178 Cutter provided a path forward for third-party claimants under RLUIPA’s land-use provision. Litigants working under facially valid statutes—like RLUIPA’s institutionalized-persons provision—can still claim an impermissible third-party harm as applied.
In Burwell v. Hobby Lobby Stores, Inc., a decision addressing third-party harms tied to contraceptive health insurance coverage, the Court strained to explain away any potential third-party harm. 179 A sharply divided 5–4 decision held that closely-held for-profit corporations were entitled to the same religious accommodations under RFRA as individuals.180 The Hobby Lobby dispute involved the minimum coverage requirements of the Patient Protection and Affordable Care Act (ACA), requiring employers to provide certain minimum levels of health insurance coverage or pay a non-compliance penalty.181 To meet the minimum coverage requirements, all FDA approved forms of contraception had to be covered by the health insurance plan.182 Congress created a carve-out for religious non-profits who objected to some forms of contraception. The terms of the carve-out allowed non-profits to subtract the portion of costs allocated to contraception from their health-insurance premiums and required insurance companies to cover all contraception costs.183 The majority opinion reiterated that any religious accommodation that harms others cannot be allowed, citing Cutter as a recent precedent.184 Finding that extending the insurance accommodation to closely-held for-profits would leave women covered by their religious employers’ health plans unaffected, no third-party harm was found.185 Key to the majority’s opinion—and central to the dissent’s argument—was that female employees and insurance providers would face no negative consequences from an extension of the non-profit accommodation to closely-held for-profit entities.186 A determined majority, set on extending the non-profit accommodation to for-profit entities, recognized that the presence of third-party harms would prevent it from doing so.187 The Court labored to cast any impact on third parties as non-consequential.188 An acknowledgment of the third-party harms in Hobby Lobby would have required the Court to deny the accommodation. Recognizing the pains the Court took to portray the third-party impact as marginal reinforces the idea that, where undeniable third-party harms exist, courts should not grant an accommodation.
From this overview of the Supreme Court’s third-party harms doctrine, some guidance can be gleaned for when religious accommodations should be limited. First, when religious accommodation creates no discernable harm to anyone, the accommodation is generally granted.189 For example, accommodating religious practices banning oath-taking by offering an alternative affirmative statement creates no discernable third-party harm.190 Religious accommodations, however, are valid even when they create some third-party costs.191 For accommodations with high costs to be valid, the per-person cost generally needs to drop. Spreading a high cost, such as unemployment benefits, over a large population, such as the entire tax base, results in a low per-person cost. This was the case in Sherbert, with its high absolute cost, but minimal per-person cost.192 Draft cases provide a similar example—accommodations were approved because the impact to other eligible draftees is marginal. Both Yoder and Hobby Lobby drew dissenting opinions, in part due to their third-party impact. However, when a third-party claim is only theoretical, as was the case in the Court’s unanimous Cutter decision, the Court has little trouble dismissing third-party harms.193 What is clear from the outcome of these cases is that religious accommodations placing significant burdens on identifiable third parties are not allowed.
IV. Impermissible Third-Party Harms Arising from RLUIPA’s Land-Use Clause?
Third-party harms under RLUIPA’s land-use provision have been entirely ignored by both courts and academics. The research for this Note found only one case discussing third-party harms, but the case was referencing alleged harms to a religious observer seeking an accommodation.194 Congress knew of the risks RLUIPA posed to third parties—the ACLU had even proposed a RLUIPA carve-out for when exemptions implicate civil rights, while religious groups countered by arguing courts should be the deciders of when a religious exemption impermissibly burdens third parties.195 In its final form, RLUIPA was given no third-party exemption.
Several factors explain the judicial and academic silence on the issue of third-party harms under RLUIPA’s land-use provision. For one, the Supreme Court—despite circuit splits over several of RLUIPA’s clauses—has yet to take up any case dealing with RLUIPA’s land-use provision.196 Another issue is determining who should be considered an aggrieved third party. Harms and remedies vary based on who the aggrieved party is. For this reason, to understand when RLUIPA accommodations create third-party harms, it is helpful to categorize cases by who the aggrieved party is. Categorizing aggrieved third parties and analyzing how remedies should vary based on category has not been explored by courts or scholars. This Note fills that gap by providing a commonsense approach that separates harms to local governments from harms to landowners. Because cases often impact both governments and residents, a third “blended” group is added to address issues arising under this common scenario. The plain text of RLUIPA deals directly with claims involving governments and provides the legal standard for addressing these claims.197 When a claim involves third-party landowners, RLUIPA is silent as to the rule or legal standard.198 Furthermore, RLUIPA’s text specifically defines the term “government,” making it perfectly clear that the statute was never intended to address landowner claims.199 As the Cutter Court indicated, RLUIPA was designed to prevent exceptional government-created burdens,200 and therefore should not be considered together with private third-party claims. Finally, separating claimants also makes sense based on the differences in the remedies sought by each group. Government entities generally will seek an injunction, while landowners may seek either damages or an injunction. For these reasons, government and private claimants should be analyzed separately to best account for each party’s concerns.
Category One will cover instances where only a governmental interest is impacted. In these cases, the government entity is the injured third party. Among the many and varied roles frequently left to local governments, land-use decision-making is perhaps the most important.201 RLUIPA exemptions can wreak havoc on carefully planned local land-use decisions. The reduced regulatory authority may harm an entire community and encroach on the unique role of local government. RLUIPA accommodations also raise federalism concerns when the accommodation usurps the power of state or local governments.202 Harms in this category only marginally impact any individual’s property interests.
Category Two addresses RLUIPA cases where accommodations create direct and measurable harms to landowners. Third-party harms in this category are highly individualized, making local governments’ arguments of direct harm difficult to make. Furthermore, local governments will likely face political constraints from unimpacted constituents, uninterested in engaging in an expensive lawsuit with no clear benefit to them. Category Two, therefore, addresses just those harms that fall primarily on local landowners with little impact on the broader community or local government.
Category Three addresses hybrid cases. In this section, RLUIPA accommodations negatively impact both a local government’s interests and landowners’ interests. Remedying harms in this category is more complex than Category One or Category Two alone since one exemption harms two discrete types of entities whose remedial claims can be exclusive of each other.
A. Category One: Local Government
Land-use regulation has traditionally, and wisely, been regarded as a function for local government.203 A locality’s on-the-ground knowledge of their community’s needs allows them to serve their communities efficiently and responsively, while their small operational scale allows for highly tailored solutions to local issues.204 In passing RLUIPA, Congress imposed a rule that discards all concern for local interests except in those rare cases when governments can show a compelling interest achieved by the least restrictive means. Many scholars have reacted with alarm to what is easily recognized as a congressional power grab in an area historically belonging to local government and trampling all federalism concerns.205 There is good reason to believe that local governments are better suited to balance local and religious land-use needs than any national solution ever could be. For example, before RLUIPA’s passage, Illinois’s RFRA statute provided broad religious accommodations, but carved-out the area around Chicago’s O’Hare airport to facilitate its modernization.206 It is likely impossible to write any land-use law at the national level that would account for every local level concern.207
Cases in this category do not have directly traceable impacts on readily recognizable third parties. Here, the primary cause of harm arises from federalism concerns due to RLUIPA’s straitjacket approach to local land-use decision-making. An inevitable outcome of setting land-use policy at the national level is reduced responsiveness of local governments and lower engagement by residents. Local governments are beholden to residents, who themselves are interested in shaping their communities.208 Contextually appropriate regulations are more likely when local communities are engaged with local land-use decisions.209 RLUIPA displaces land-use decisions from the local decision-making process, disenfranchising local communities. When decisions are made locally, voters can galvanize their neighbors to oppose, or eject, local politicians; RLUIPA’s nationalistic approach provides no such option. There is at least some evidence that RLUIPA has had these negative effects in communities where RLUIPA has been heavily utilized.210 Furthermore, residents who feel they have been stripped of their right to be heard are more likely to ignore land-use regulations that apply to their property.211 For example, recall DiLaura I,212 where a town sought to enforce regulations governing bed and breakfasts as well as alcohol service.213 Following the court order to grant the DiLauras an accommodation, the town would likely have a difficult time explaining to other landowners why they must abide by the very rule the DiLauras were excused from. Courts should recognize RLUIPA’s disenfranchisement effect and related downstream impacts as third-party harms.
Another example of RLUIPA’s adverse impact on local governments is the potential interference with local initiatives designed to enhance a community.214 For example, in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, a town sought to revive its downtown area and considered attracting nightlife venues to be the best method of doing so.215 In place at the time was a state law banning liquor-selling establishments within 300-feet of a church.216 To comply with the state law and achieve its desired rejuvenation outcome, the town banned churches from locating to the downtown area.217 The court found that the town’s policy violated RLUIPA.218 Applying a national law to a local land-use problem would have forced the town to allow churches into the downtown area, foregoing the best chance at neighborhood rejuvenation.219 Forgoing its plans would have resulted in significant tax revenue loss and the rejuvenation of a small local economy, too small to ever be part of a national solution.220
RLUIPA’s creation of a national solution to resolve local problems creates high negative external costs for towns otherwise treating religious institutions fairly. The impact of a RLUIPA accommodation leads to less responsive local government and disenfranchised residents. Furthermore, threats of an expensive and drawn-out trial likely means localities will settle, even if they may ultimately prevail on the merits. A balanced solution should recognize these costs as the third-party harms that they are.221
B. Category Two: Landowners
Towns cannot always be relied upon to serve the needs of their residents. Here, third-party harms arising from an accommodation fall entirely on neighboring landowners.222 When only a few landowners are impacted by a RLUIPA accommodation, they may find that their local officials are more interested in avoiding an expensive lawsuit that may, in the best-case scenario, benefit only a few residents. This outcome seems even more likely given the multi-million-dollar verdicts that have occasionally been awarded to prevailing religious institutions.223 Politicians, interested in gaining the most votes, cannot be relied upon to prevent third-party harms against a small group of injured property owners—even when their injury is great. However, high costs falling on a discrete group of people precisely describes the kind of third-party harms the Court deems impermissible.224
An opinion from a Texas appellate court provides a superb example of a town’s unwillingness to enforce its own zoning code when faced with the threat of a RLUIPA suit, despite the third-party harm leveled on neighboring landowners.225 In Schmitz v. Denton Cnty. Cowboy Church, the Cowboy Church purchased land in a residential neighborhood and soon thereafter began construction on a 61,000 square foot arena in which the Church planned to conduct weekly rodeo events.226 After construction began and neighbors raised complaints with the town, the Church applied for a specific-use commercial-building permit, and to have their land rezoned as agricultural.227 The town convened a special meeting to discuss the proposed changes, but the decision seemed to have already been made.228 The agenda for the meeting stated that the arena “is considered to be part of the [C]hurch and should be allowed under [RLUIPA].”229 Unsurprisingly, and over the dissent of seven out of the eight notified residents, the town approved the zoning change and the requested special-use permit.230 The trial court affirmed the changes, finding that any other decision would have constituted a substantial burden in violation of RLUIPA.231 Although the appellate court disagreed with the trial court’s reading of RLUIPA, it nevertheless upheld the town’s decision, without questioning at all the impact on the third parties.232
After losing at the zoning commission, Schmitz, a resident opposed to the rezoning, raised several ways in which the new 61,000-foot arena, sitting eighty feet from his property line, would directly harm his property interest.233 Schmitz claimed, inter alia, that the quiet enjoyment of his property would be compromised by the “noise, dust, light, and odor” emanating from the arena and also noted the impact on his property value.234 In the end, the court allowed Schmitz to go forward with a private nuisance suit, but found Schmitz lacked standing to enforce the zoning laws.235 The Schmitz case highlights the difficulties residents can face when going up against a religious institution armed with RLUIPA. The zoning board’s near-unanimous decision, granting the Church permission to engage in rodeos in the middle of a residential neighborhood, demonstrates the lengths politicians go to avoid becoming embroiled in a RLUIPA suit. In cases like Schmitz, harm arising from a religious accommodation fall entirely on neighboring residents.
C. Category Three: The Hybrid Cases
A hybrid case injures both Category One and Category Two groups from the same RLUIPA accommodation. In this group of cases, harms are suffered by both the locality, as well as by property owners in their personal capacities.236 It seems clear that residents will not remedy the kinds of third-party harms felt by localities—even if private parties were interested in taking on such a suit, it is unlikely they will meet the standing requirements.237 Similarly, towns cannot be expected to avenge harms suffered by landowners in their individual capacity, even if they have standing do so. It is unclear if an injury to a private party’s property interest can constitute a compelling governmental interest on its own. Even if a town could bring a case on behalf of its resident landowners, the landowners would likely be better off bringing the case themselves if courts determine an easier legal standard applies. Therefore, it seems likely that when cases present third-party harms to both individuals and towns, towns will not pursue damage actions on a landowner’s behalf. A holistic view accounting for third-party harms to both groups of interested parties can help synthesize solutions in hybrid cases, accounting party types, and their unique harms.
D. Potential Solutions
This Note argues that third-party harms can arise from RLUIPA accommodations.238 Furthermore, harms vary based on who the injured party is. It should follow that remedies should account for the kinds of harms suffered by each party. The primary harms towns suffer are based on federalism principles. On the other hand, the primary concern for residents is tied to their property interest, presented in the form of reduced property values, reduced enjoyment from their property, and denial of their bargain. While denying a religious institution an accommodation may prevent third-party harms for both groups, courts need not resort to a total accommodation denial just to prevent third-party harms. There may be strong mitigating factors that justify granting an accommodation. Instead, courts should take a holistic view of all potential third-party harms that may arise from a RLUIPA accommodation. Accommodations that may otherwise give rise to impermissible third-party harms can be mitigated using one of the methods specified in this Section.
1. Local Government
A broad reading of local and state governments’ roles is the first step to mitigating third-party harms arising from RLUIPA accommodations. Courts should be highly deferential to local government and acknowledge the unique land-use role local governments are tasked with. Within the statutory framework of RLUIPA, courts should avoid a cabined view of what constitutes a compelling governmental interest. Even if some compelling governmental interests can be addressed only by denying an accommodation, many, if viewed as a third-party harm, can be mitigated, thereby allowing the accommodation without the accompanying injury. For example, circuit courts are split on whether a loss of tax revenue should constitute a compelling governmental interest.239 The main argument against recognizing revenue as a compelling interest is a concern that doing so will result in RLUIPA accommodations always being avoided.240 Essentially, courts hesitate to recognize legitimate interests when doing so will result in curtailing accommodations. But courts should not decide what constitutes a compelling interest based on its impact on religious institutions. Rather, compelling interests should be considered in the context of its impact on the town. Viewed through the lens of the third-party harm doctrine, broadly recognizing compelling interests need not interfere with RLUIPA accommodations. Rather, when accommodations interfere with governmental interests, offsetting measures, such as payment for lost revenue, can be used to mitigate external costs. Sometimes, third-party costs are less measurable—but equally present—as in cases involving the reduced impact of local democratic processes, or increased lawlessness.241 In these cases, courts should readily recognize potential harms arising from a RLUIPA accommodation and take steps to mitigate these harms. Courts can mitigate these third-party harms by making accommodations contingent on greater community involvement in the accommodation process.
2. Landowners
Landowners should not be burdened by third-party harms arising from RLUIPA accommodations. Forcing accommodation costs on landowners runs afoul of Supreme Court jurisprudence and risks falling outside the legitimate bounds of the First Amendment’s religion clauses.242 Furthermore, residents should not be held to the exacting legal strict scrutiny standard RLUIPA places on governments. RLUIPA’s statutory text explicitly states that it applies to government actions, making no mention of private landowners.243 As with third-party harms to governments, RLUIPA accommodations need not be denied solely based on impermissible third-party harms to residents. Rather, RLUIPA accommodations should be conditioned upon third-party harms to landowners being mitigated.
The best method for resolving third-party harms on residents is using the well-established nuisance doctrine. Traditionally, the nuisance doctrine armed landowners with a legal right to enjoin a neighboring landowner’s land use that interfered with their reasonable enjoyment.244 Old nuisance law made no distinction between when a nuisance activity began, and when a nuisance asserting party arrived.245 Today’s nuisance law, with roots in the law and economics movement, is more nuanced.246 The modern approach maintains a neighbor’s nuisance claim but asks courts to weigh the cost of enjoining the nuisance.247 Courts compare the harm to a landowner with the cost of an injunction.248 When an injunction’s costs exceed the benefits landowners would gain, rather than issue an injunction, courts will order nuisance causing parties to pay for the right to continue their nuisance behavior.249
Applying nuisance law to instances where RLUIPA accommodations create third-party harms provides an equitable solution for landowners and religious institutions. Although a nuisance remedy—in extreme cases—can still result is an injunction, generally, a cash remedy will suffice to make landowners whole. In those instances where an injunction is warranted, and a town either chooses not to defend a RLUIPA claim or does not meet the legal standard, landowners would have a private right they can assert to prevent the injury-causing land use. It is essential that courts recognize landowners’ private right to sue because, as noted, landowners are unlikely to have standing to litigate a RLUIPA suit on a town’s behalf. Denying landowners a private right of action would make them entirely reliant on their town; nothing in RLUIPA’s text or statutory history supports this conclusion.250 Furthermore, the use of nuisance law allows courts to separate baseless claims by residents, stemming from religious animosity, from those claimants alleging legitimate property-related concerns. In cases like Schmitz where a court finds residents’ complaints based on legitimate property-related concerns, requiring religious institutions to buy out their neighbor’s injunction is a fair and equitable outcome. Using nuisance law to craft solutions to land-use disputes between religious institutions and residents is far more flexible than the binary outcome RLUIPA mandates.
3. Hybrid Cases
In hybrid cases, a combination of remedies must be used. Courts should utilize a lower compelling interest bar to local governments and apply a different legal standard based on nuisance law to landowners’ third-party harms. Courts should acknowledge when third-party harms exist against one plaintiff category and not the other. Thinking of third-party harms based on who is impacted allows courts to tailor narrow remedies instead of being restricted to a binary decision of whether a RLUIPA accommodation should be granted. Furthermore, courts should readily acknowledge a government’s standing to litigate personal harms on behalf of its residents and be willing to grant residents relief.
Conclusion
Courts must inquire into third-party harms that will arise from a RLUIPA accommodation. In so doing, courts should take a wide view of what constitutes a third-party harm, realizing that in RLUIPA suits not all parties are harmed in the same way. By acknowledging the presence or third-party harms, courts should move away from binary decision-making on whether a RLUIPA accommodation should be granted. Any RLUIPA accommodation giving rise to third-party harms must be accompanied by contingent mitigating conditions. Third-party harms have long been the upper limit on religious accommodations, and RLUIPA land-use accommodations should be treated the same.