RLUIPA and compelling government interests

Well this is good news. An Anglican church in Jacksonville Beach has received permission to build a new church, over two rejections from the local planning board. A court found that under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the community had the right to build their church.

Controversy over building churches occurs much more often than one would think, at least to me. Many communities do not want them, and provide for zoning plans to exclude them (and, it is true, many other types of non-residential buildings) from residential zones. Although there is a healthy debate about whether this kind of zoning makes sense as a matter of planning, RLUIPA is directed at the particular issue of preventing discrimination against religious buildings and treating them differently from other kinds of structures.

The Church of Our Savior purchased plots of land on which to build their church. Although the town planning department approved the application, the planning commission rejected it, citing concerns unspecified in the opinion about the traffic and the “character” of the neighborhood. A further refinement of the proposed plan, including turning part of the plot into a public park, failed to satisfy the commission. The town promptly changed its zoning code to try to neutralize the church’s claim it was being treated unequally.

The court wrote a thorough opinion addressing the RLUIPA claims. Simply denying a church a permit to build, or to require changes to a building plan, do not “substantially burden” a religious group’s rights under RLUIPA. Land is finite and, as is taught in law school, each parcel is unique. Market conditions, and not government action, are often the cause of a religious group not getting the property it wishes. Accordingly, the Court rejected most of the church’s claims of RLUIPA violation as a general principle.

However, the Court upheld a RLUIPA claim, as applied to the church, finding that the planning commission had treated it unequally. The commission had recently approved a very similar application for a school, and could not, to the Court’s satisfaction, articulate a “compelling government interest” that justified a full rejection of the Church’s plan. The commission asserted an interest in “preserving the character and safety of its residential neighborhoods through enforcement of its zoning regulations …. Even assuming that this constitutes a compelling government interest under RLUIPA, the Court finds that a blanket denial of the Church’s application was not narrowly tailored to further that interest.”

This seems like the right result.  Since the church location was near a large street and an amusement park, it is difficult to see how their parking spaces and 200-person church would affect the “character” of the neighborhood. What seems to have (rightly) bothered the court is the sudden change in the zoning code and its obvious unequal treatment of the church.  This kind of last-minute objection and inarticulate “character” assertions are exactly the kind of arguments RLUIPA holds up to scrutiny, but one can’t help but wonder how many times they prevail.

Rugh, “Christians in Egypt”

In November, Palgrave-MacMillan will release “Christians in Egypt: Strategies and Survival,” by Andrea B. Rugh (Middle East Institute, Washington, D.C.).  The publisher’s description follows:

Christians in the Middle East have come under increasing pressure in recent years with the rise of radical Islam. Nowhere is this truer than in Egypt, where the large Coptic Christian community has traditionally played an important role in the country’s history and politics. This book examines Christian responses to sectarian pressures in two contexts: nationally as Church leaders deal with Egyptian presidents and locally as a community of poor Christians cope in a mostly-Muslim quarter of Cairo. This intensive study, based on the author’s five years of research in Bulaq, looks at existential questions surrounding the role of religion in poor communities. The book concludes with a review of strategies Egyptian Christians have used to improve their minority status, showing that although expressed differently, both Church leaders and members of the Bulaq community ultimately have worked toward similar goals. The study suggests that under the al-Sisi Government, Christians may be emerging into a more active period after a relative quiescence before the events of the 2011 Uprising.