LAND USE & FREE EXERCISE: ROUND II

How Appealing pointed me to the interesting religious liberty case of Congregation Kol Ami v. Abington Township, in which the Third Circuit is hearing oral arguments today. The issue is the contentious one of the ability of local governments to restrict religous land use through zoning policy, the same one at the center of the controversy leading to the landmark decision of City of Boerne v. Flores. That decision, in which the Court rejected what was in effect an effort by Congress to reverse its unpopular free exercise jurisprudence, left unresolved two questions (1) to what extent can Congressional protection for religious free expression exceed that of the Court's while still acting under its constitutional authority, and (2) do facially neutral zoning laws ever violate the Free Exercise Clause.

Kol Ami is a case that tests both questions. Abington Township recently modified the relevant zoning ordinance, covering the parcel where Kol Ami wishes to convert a former convent into a synagogue to exclude exemptions for religious use, but include exemptions for other non-residential uses. More damning for Abington is the fact that while 26 churches exist in "residential" zones, no non-Christian place of worship has been approved for a residential area. Thus, the Abington zoning boards' decision is called into question both by 1) its discrimination against all religious land use, and 2) its potential discrimination against a minority faith.

It is unclear, however, that this will be sufficient to violate the free exercise under the restrictive precedent of Smith, which held that generally applicable regulations do not have to accomodate religious practices in order to be constitutional. On the other hand, the Township is in clear violation of the latest Congressional effort to bolster religious free exercise - RLUIPA (Religious Land Use and Institutionalized Persons Act). Under the terms of RLUIPA, Abington has a steep burden to show why it could not accomodate Kol Ami's free exercise rights in order to meet the needs addressed by its land use regulations. There is no question that on these facts, it is violation of RLUIPA. Hovering over any application of RLUIPA, however is the question of its constitutionality - whether it can in any meaningful way be distinguished from RFRA (Religious Freedom Restoration Act), the statute struck down in Boerne.

I do not have much confidence in RLUIPA's prospects before the Court. Despite its smaller scope, it still faces the core problem of RFRA - it is quite clearly designed to replace, not enforce the Supreme Court's understanding of free exercise rights. That being said, there is still hope that the district court decision will be upheld without having to rely on RLUIPA's constitutionality. The alternative is that local governments will be able to get away with zoning shenanigans such as these, gerrymandering "unwanted" religious groups out of their borders. Facial neutrality is simply insufficient to preserve religious liberty. Whether the Rehnquist Court will realize that in light of the obtuseness of its decisions in Smith& Boerne is yet to be seen.