Historically, the inherently-localized activity of land use has been left to local governments and excluded from federal intervention. Congress and the Supreme Court have long recognized the right of state and local governments to enact land use ordinances to promote both public safety and aesthetics. In enacting RLUIPA, Congress inserted itself into matters of local land use for a second time to afford “heightened statutory protection to religious exercise.” Congress’ first attempt to regulate the area came in 1993 in the form of the Religious Freedom Restoration Act (“RFRA”). Ultimately, the Supreme Court held RFRA unconstitutional as to state and local governments in a landmark land use case because such meddling exceeded Congress’ power.
RLUIPA is more limited in scope because it targets only land use regulations and limitations on institutionalized persons. As with RFRA, state and local governments began to challenge its constitutionality soon after its enactment. The challenges all but stopped in 2005 when the Supreme Court held the Act constitutional in a case involving institutionalized persons. Now six years later in Sossamon
, the Supreme Court specified it would not
speak to the Act’s constitutionality because it was not raised by the litigants. However, its refusal to address the issue only seemed to signal that there may be an issue to address in future land use cases. Its legitimacy is suspect given its similarities with outlawed RFRA, which Congress based on the same power under which it enacted RLUIPA.
On the issue of damages, the Supreme Court held that money damages are not included in the statute’s allowance of “appropriate relief” against a State because Congress did not condition acceptance on federal funds with a waiver of sovereign immunity. Arguably, this interpretation should apply to local governments as well as states because Congress did not distinction between types of governments in the legislation to which RLUIPA.
While the decision in Sossamon
does not close the door on RLUIPA claims it strongly suggests that the statute may be unconstitutional and may be limited to providing injunctive relief only. These questions are certain to be litigated in the lower courts and will likely make their way once again to the Supreme Court.
For more information, contact Dana Maine
at 770.818.1408 or [email protected]