On Aug. 7, 2008, the Third Church of Christ, Scientist filed a lawsuit
in the U.S. District Court for the District of Columbia challenging the
designation of its church building as a historic landmark. The church
is a rare Washington, D.C., example of Brutalism, a modern architectural style popular in the mid-20th century. In December 2007, the D.C. Historic Preservation Review Board
designated the church building a historic landmark, effectively barring
the congregation from altering the exterior of the building without the
district's permission. Congregants argue that because the concrete
building's enormous size and lack of windows detract from worship and
make the space expensive to heat and cool, the district should grant
the congregation's request to demolish the structure and build a new
church in its place.
But the district has denied this request,
and the church has sued. The church alleges violations of two federal
religious freedom statutes - the Religious Freedom Restoration Act
(RFRA) and the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA) - as well as the Free Exercise Clause in the First
Amendment to the U.S. Constitution. (The Free Exercise Clause generally
prohibits the government from discriminating on the basis of religion.)
RLUIPA grew out of the U.S. Supreme Court's interpretations of RFRA and
the Free Exercise Clause, and is now at the center of many
controversies over how the government regulates religious use of land.
examine how RLUIPA relates to the Christian Science church's lawsuit,
the Pew Forum turns to church-state scholar Robert W. Tuttle.
Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School
Jesse Merriam, Research Associate, Pew Forum on Religion & Public Life
In this Q&A:
The history of RLUIPA
RLUIPA and the Third Church of Christ
Does RLUIPA violate the Establishment Clause?
Question & Answer
Robert W. Tuttle
What prompted the U.S. Congress to pass the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA)?
RLUIPA’s story begins with a Supreme
Court case called Employment
Division v. Smith(1990). In that case, the high court rejected the “compelling
interest” test, which was the prevailing standard for evaluating cases involving
the Free Exercise Clause. Under the compelling interest test, a law that substantially burdens an individual or
group’s ability to practice religion may not apply to the burdened persons unless
the government demonstrates a compelling interest in applying the law to these
individuals or groups. Only a few interests, such as public health and safety,
have traditionally been considered compelling, so a consistent application of
this approach would have exempted religious groups from many laws.
In Smith, the court rejected
this approach, declaring that the free exercise analysis should not turn on
whether a law substantially burdens a particular religious group or practice
but rather on whether a law discriminates
against a religious group or practice. Such a discriminatory law, the court
explained, is invalid unless the government proves that the law is necessary to
achieve a compelling government interest. But for laws that don’t discriminate
on the basis of religion, the high court held that the Free Exercise Clause
requires merely that courts apply the much less demanding “rational basis” test.
This stipulates that a law is valid as long as it reasonably relates to some legitimate
government interest – even if it substantially burdens religious exercise.
According to the ruling in Smith,
almost all nondiscriminatory laws satisfy the Free Exercise Clause, thus
dramatically limiting the reach of the clause.
How did the ruling in Smith lead to the passage of RLUIPA?
The Smith decision infuriated
many religious liberty advocates, prompting Congress in 1993 to pass the Religious
Freedom Restoration Act (RFRA), which sought to reinstate the compelling
interest test. In 1997, however, the Supreme Court held in City of Boerne v. Floresthat RFRA could not constitutionally
apply to state and local governments. Importantly, though, the high court in Boerne noted that it might have upheld
the statute’s application to the state and local governments if Congress had
made the law narrower by applying the compelling interest test only to those
government actions that are most likely to threaten religious liberty.
In 2000, Congress took up this
challenge by passing RLUIPA, a narrower version of RFRA. RLUIPA reinstates the
compelling interest test’s application to all levels of government – federal,
state and local. But, as its name suggests, it does so only for two types of regulations: those that concern how religious
groups use land, and those that deal with the religious exercise of individuals
confined to government institutions such as prisons. Congress targeted these
two types of regulations after conducting hearings and determining that these were
the two areas in which state and local governments are most likely to disfavor
or ignore religious interests.
For religious land use, RLUIPA offers
additional protection beyond the compelling interest test. Whereas the institutionalized
applies the compelling interest test to regulations that substantially burden
the religious exercise of institutionalized people, the land use provision
goes further. It not only applies the compelling interest standard to land use
regulation but also prohibits land use regulation that discriminates on the basis of religion. This nondiscrimination
provision requires the government to regulate religious and secular land use
How have religious groups fared in claiming that particular land use
regulations violate RLUIPA?
Religious groups have been more
successful under the nondiscrimination provision than under the compelling
interest standard. Many lawsuits brought under the nondiscrimination provision
have challenged laws that exclude churches but not secular nonprofits from an area.
In these cases, courts have held that the government must provide a good reason
for excluding the church and not other groups. When the government has not been
able to provide such a reason, which is often the case, the religious group has
Religious groups have not fared as
well, however, under the compelling interest test. This is because many courts
have imposed strict limitations on what counts as a substantial burden. For
example, in several decisions over the last few years, the 7th U.S. Circuit Court
of Appeals has said that to prove a substantial burden, a religious group must
show that a land use regulation has made it impossible or impractical for the
group to practice its religion. Since land use regulations rarely impose such
burdens, courts have rejected many of these challenges before ever having to determine
whether the government had a compelling interest.
In the few situations in which
religious groups have demonstrated substantial burdens, the groups have
generally prevailed because courts have generally held that the government’s
particular reason for enforcing a land use regulation falls short of the
required compelling interest. In a number of these cases, land use authorities
have denied congregations the right to locate or expand churches because
neighbors have opposed the traffic that the proposed change would have created.
Although traffic control is important, courts have not treated it as a
compelling public interest.
How does RLUIPA apply to the Third
Church of Christ,
Scientist, which sued the D.C. Historic Preservation Review Board for designating
its church building a historic landmark?
This is an unusual RLUIPA case
because most such disputes involve the government excluding a church from a
particular area. This case is about the government’s effort to preserve a church building.
Another interesting dimension of
the case is the church building itself. The building was designed by a
well-known architect named Araldo Cossutta and was built in what is called a Brutalist
style. As part of the modernist architectural movement, Brutalism flourished
from the 1950s to the 1970s. As its name suggests, Brutalism uses raw concrete
and stark geometric designs to create an imposing space.
Finding the building unattractive
and expensive to heat and cool, the members of the church want to demolish it
and build a new one in its place. But the D.C. Historic Preservation Review Board
has contended that the church is an especially important example of this
architectural style and therefore may not be demolished.
To resolve this case, the U.S.
District Court will consult previous judicial interpretations of RLUIPA, RFRA
and the Free Exercise Clause, the three standards that the Christian Science
church has alleged the district violated. (Although RFRA no longer applies to
state and local governments, RFRA still applies to Washington, D.C.,
because D.C. is under federal law.)
The church appeals to these three
legal standards to make two arguments. The first argument, under RLUIPA’s
compelling interest provision and RFRA, is that the district has substantially
burdened the church’s religious exercise and does not have a compelling interest
in imposing such a burden. The second argument, under RLUIPA’s
nondiscrimination provision and the Free Exercise Clause, is that the district
has unfairly targeted the Christian Science church in determining that its
building is a historic landmark.
How do you expect the court to rule?
Prior cases have not really dealt
with whether such a historic landmark restriction imposes a substantial burden
under federal law, so it’s hard to say how the court will rule. The church’s first
argument appears to be the stronger one, however. To understand the church’s first
argument, we need to break it into two parts: the church’s burden and the
Let’s start with whether the
historic landmark restriction imposes a substantial burden on the church’s
religious exercise. The church argues that its designation as a historic
landmark burdens it in two ways. First, the landmark restriction requires that
the church maintain the building’s dark and unwelcoming exterior, which the
church claims undermines its effort to communicate the meaning of its faith. Second,
the church argues that the landmark restriction prevents it from adapting the building
to make it more inviting to the community and more capable of generating
revenue. The church argues that these are substantial burdens that affect its
message and livelihood.
The district will argue that these
burdens are not substantial because the church can decorate the building’s
interior however it pleases and, if it wishes, the church can always move to
If the court does not find a
substantial burden, then the court’s analysis ends there and the church loses
this first argument. But if the court does find a substantial burden, it must
then address whether the district has a compelling interest in preserving the
building as a historic landmark. In this latter event, I’m pretty sure the
church would win. Traditionally, courts have held that the government has a
compelling interest only in health and safety matters, such as curbing disease
and criminal behavior. Purely aesthetic matters, like the preservation of
historic landmarks, rarely amount to compelling government interests in the
eyes of the courts.
What about the church’s second argument? Can the church win on the
ground that by prohibiting the church from demolishing the building, the
district violated either RLUIPA’s nondiscrimination provision or the Free
I think it is very unlikely that
the church will prevail in this argument. The Supreme Court’s decision in Church of the
Lukumi Babalu Aye v. City of Hialeah (1993) is the relevant precedent
on what counts as impermissible discrimination under the Free Exercise Clause
and RLUIPA. In the Lukumi case, the high
court invalidated an ordinance that prohibited animal sacrifice but permitted
other types of animal killings. The court explained that the city, by focusing
only on animal sacrifice in its ordinance, did not aim to protect animals in
general but rather to prohibit the Santerian practice of animal sacrifice. Such
targeted legislation, the court held, violates the Free Exercise Clause.
Now compare the Hialeah ordinance with the district’s
designation of the Christian Science church as a historic landmark. In one
respect, the review board’s designation might appear to target a religious
group because it singled out the Christian Science church in making this
designation. But this is only a superficial similarity because all historic
landmark decisions single out particular buildings as being worthy or unworthy
as historic landmarks. To decide whether the district actually targeted the
Christian Science church, we have to consider the criteria that the review
board considers in determining whether a building is a historic landmark, and
how the board applied the criteria to this particular building.
The D.C. Historic Preservation Review
explaining its decision is relevant here. The report applies the same criteria
to the church that the board applies to other buildings, religious and secular.
Nothing in the report suggests that the board landmarked this building due to hostility
toward religion in general or the Christian Science church in particular.
So I doubt a court would find that the
district violated RLUIPA or the Free Exercise Clause by targeting the Christian
Science church. As I mentioned earlier, the real question is whether, under
either RLUIPA or RFRA, the landmark designation has imposed a substantial
burden on the church.
Some Supreme Court decisions have interpreted the Establishment Clause to
prohibit the government from favoring religion over nonreligion. RLUIPA appears
to favor religion over nonreligion because it gives only religious groups a
legal weapon against burdensome laws. Is there an argument that RLUIPA violates
the Establishment Clause? And have courts considered this argument?
There is certainly an argument that
RLUIPA violates the Establishment Clause, but I think there is almost zero
possibility of the argument persuading the Supreme Court or a lower court to
invalidate RLUIPA as unconstitutional.
In Cutter v. Wilkinson
(2005), the Supreme Court unanimously rejected this Establishment Clause
argument as it applied to RLUIPA’s institutionalized persons provision. In that
decision, the court explained that there is an area of church-state law known
as the doctrine of accommodation,
which permits the government to grant religious groups special protection from
burdensome laws. Some examples of religious accommodations are military draft exemptions
for conscientious objectors, tax exemptions for houses of worship or exemptions
for religious employers from employment discrimination laws.
The Supreme Court has considered
constitutional challenges to such religious accommodations for over 50 years. Through
these cases, the court has developed rules for determining when religious
accommodations violate the Establishment Clause. So the court held in Cutter that the institutionalized
persons provision is constitutional because it satisfies these rules.
The land use provision also is
likely to satisfy the accommodation rules. It is possible, however, that a court
could find that the land use provision violates the rule prohibiting the government
from accommodating religious groups in a way that unreasonably burdens other
people. RLUIPA’s land use provision would violate this rule if exempting a
religious group from a land use regulation imposed a serious burden on the
group’s neighbors. For example, RLUIPA may not permit a church to use property
in a way that subjects neighbors to excessive noise.
But even if a court held that
applying RLUIPA in this way would be unconstitutional, such a ruling would not
mean that the land use provision itself is unconstitutional. The ruling would
mean only that RLUIPA could not grant an exemption in this particular case.
So, given the unlikelihood of a court finding that RLUIPA’s land use
provision violates the Establishment Clause, do you expect the Supreme Court to
take a case dealing with this issue?
I think it’s possible but unlikely
that the Supreme Court would take such a case. Now that the court has upheld the
institutional persons provision in Cutter,
most if not all lower courts will look to that case as a precedent for
upholding the land use provision. And I don’t think the Supreme Court will
reach out to hear a case only to affirm a lower court’s finding that RLUIPA is
constitutional. So I doubt we’ll see the land use version of Cutter.
But it’s possible that the Supreme Court would take an
“as-applied” challenge to RLUIPA – that is, a case in which someone argues that
a lower court applied RLUIPA in a way that violated the Establishment Clause
because, in protecting a religious group’s use of land, it unreasonably
burdened the religious group’s neighbors. That certainly would make for an
interesting challenge.Photo credit: AP
This transcript has been edited for clarity, spelling and grammar.