Might Metro Nashville have a case against the U.S. Government for coercing special rights for religious organizations that secular organizations do not enjoy?
Section (a) of RLUIPA provides:
(1) 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 can demonstrate 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; or
((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.
Currently being litigated is the conflict RLUIPA presents relating to municipalities' zoning and regulating rights. Through RLUIPA, Congress has expanded religious accommodations to a point where it appears to restrict municipalities' zoning power. Arguably, RLUIPA gives religious landowners a special right to challenge land use laws which their secular neighbors do not have. Even if a zoning law is void of discrimination Congress would have strict scrutiny apply to the city's regulation.
Friday, May 09, 2008