Rules Are for Schmucks: The Privilege Zone

Last week’s Atlantic featured religion writer Emma Green’s five-thousand-word homage to RLUIPA: the federal statute that undercuts the neutrality of every local zoning code in the country by mandating a jaw-dropping preference for religious institutions.

The Religious Land Use and Institutionalized Persons Act (RLUIPA) was enacted in 2000 in response to a run-of-the-mill land use dispute in Texas. A church, located in a historic district near San Antonio, wanted to expand in ways that violated normal historic district protocol. As Marci Hamilton describes in God vs. the Gavel, this is exactly the kind of disagreement that gets worked out in negotiation with zoning boards every day, all over the country—as ultimately happened here. But along the way, the matter made it all the way to the US Supreme Court and back because the church decided God didn’t want it to live with the same zoning rules as everyone else. Marci Hamilton, winner of the American Humanist Association’s 2015 Religious Liberty Award, beat them in the Supreme Court. But then the God industry ran crying to Congress, which passed RLUIPA, a statute that comes within an inch of saying that whenever a church is involved in a zoning or other land use matter, the church wins. The only way the zoning authority can keep it from building whatever it wants, wherever it wants, is if the government can prove a “compelling interest” in the regulation at issue and prove that the regulation is the “least restrictive means” of achieving that interest. Creative lawyers can almost always come up with a “less restrictive means” of accomplishing whatever goal a zoning board is trying to promote.

Most of the effects of RLUIPA never show up in the press. One that did occurred in Salem, Virginia, in 2010. The town spent hundreds of thousands of taxpayer dollars improving a parcel of land just off Interstate 81, putting in roads, parking, and utilities to create an industrial park to attract businesses and generate jobs for the community. Pastor Tom McCracken watched all this work patiently, and when it was finished he applied for a change in the zoning so that he could move his CommUNITY Church there. No way, said the town; the point of spending the taxpayers’ money was to attract jobs, not to build a church, which among other things would be unconstitutional. McCracken and his clever lawyers, though, relied on RLUIPA to bully the town into changing the zoning so his church could move in—a slick end run around Thomas Jefferson’s Virginia Statute of Religious Freedom, which proclaims that “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” Like most controversies under RLUIPA, this one never made it to court; when the town discovered that it would probably have to pay both sides’ attorney fees if it lost the case but that Pastor McCracken would not have to do likewise, it caved without a fight.

In her article, Green wrings her hands at some length over the plight of Muslims in a number of jurisdictions seeking to build mosques. It is certainly true they’ve faced some ugly discrimination, with townships imposing rules on mosques that aren’t imposed on Christian churches. But what she neglects to mention is that there is no need for RLUIPA to deal with this problem. We have civil rights laws in this country that are more than adequate to address favoring one religion over another. There is no need for a law favoring religion in general over every other consideration that goes into the zoning process.

I’m reminded of the line from the 1989 Kevin Costner film, Field of Dreams: “If you build it, they’ll come.” If you create a legal privilege as powerful as RLUIPA, all kinds of people will try to take advantage of it. Here are a few stories Green doesn’t mention:

The rodeo, calling itself a “Cowboy Church,” that plunked itself in the middle of an upscale residential community in Denton, Texas. Neighbors unhappy about living next to the noise, the smell, and the commotion must deal with a one-word response: “RLUIPA.”
The swingers’ club that attempted to open in Madison, Tennessee. After they were turned down flat by local officials, they re-invented themselves as a church. “We all have the FREEDOM to worship as we see fit,” their original website proclaimed, while they also boasted about giving away lots of money to homeless shelters. Once they became a church, the local authorities immediately caved—fighting against RLUIPA is too much like fighting against Godzilla.
In California, purchasing marijuana for medical purposes no longer violates state law—but that doesn’t mean that every small town has to let in a marijuana dispensary. When the town of Roseville turned down such a request, the applicants simply reformulated themselves as a Temple of Healing and Meditation, putting all the might of RLUIPA on their side. The battle isn’t over yet, but unless the temple is incredibly clumsy about how it operates, it has every expectation of being able to prevail under RLUIPA.

Green spends thousands of words bemoaning the fact that dealing with local zoning authorities can be a hassle, and that church leaders do not enjoy hassles. But she’s awfully light on why churches should be able to escape the bureaucratic frustration that every other organization in America has to put up with as an element of doing business, so that we can have communities organized in a sensible manner. Her sole justification for favoring churches over every other zoning applicant is that “A large body of social science has shown that religious people are more likely to vote, volunteer, and join other groups like PTAs or book clubs than people who aren’t religious.” But when you check her source for that bald statement, you won’t find any support for the proposition—if anything, it seems to imply just the opposite. Even if there were such a correlation, the proof of causation would be nil: we all know there are people who are “joiners,” who will join churches and PTAs along with book clubs and whatever else is out there. Giving churches an unfair land use advantage doesn’t affect that tendency one way or another. What it does affect is the ability of towns to pay for the basic services they exist to provide. When a new tax-exempt megachurch wipes acres off the commercial property tax rolls, town authorities are faced with a simple question: Should we lay off police, or should we lay off firefighters?

RLUIPA is a power grab, pure and simple. One sector of the economy had the political muscle to get Congress to place a giant thumb on its side of the land use regulation scales, so they used it. Getting us back to a level playing field is made vastly more difficult by misleading tear-jerkers like this in publications that ought to know better.