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Washington�A recent federal appellate court ruling upholding the constitutionality of land-use provisions in a religious freedom statute may influence a growing number of zoning battles between local governments and religious groups in courts throughout the country. The 11th U.S. Circuit Court of Appeals ruling was the first appellate decision upholding the constitutionality of the land-use provisions in the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). And it was the first appellate decision in favor of a religious institution in a RLUIPA land-use case. Midrash Sephardi Inc. v. Town of Surfside, No. 03-1358 (April 21). Church-state litigators and others say the decision may have a significant impact on similar challenges pending in the 2d, 3d, 9th and 10th circuits. And, they add, it may influence lower courts struggling to define some of the act’s provisions in more than 100 RLUIPA cases now pending. “Until six months to a year ago, it was still often the case that municipalities thought they could avoid RLUIPA by challenging its constitutionality,” said Patrick Korten, who tracks RLUIPA cases for the Becket Fund for Religious Liberty. “It’s becoming more and more apparent they can’t do that.” The 11th Circuit ruled in a dispute between the one-square-mile coastal town of Surfside, Fla., and Midrash Sephardi and Young Israel of Bal Harbour, Fla., two small Orthodox Jewish synagogues whose congregations meet on the second floor of the Ohio Savings Bank in the town’s business district. Surfside’s business district encompasses two blocks. Its zoning ordinance states that the district is “to provide for retail shopping and personal service needs of the town’s residents and tourists.” Theaters and restaurants may operate on the first-floor level of the district. Private clubs and lodge halls, health clubs, dance studios, language schools, music studios, modeling schools and athletic schools are permitted only above the first floor. The ordinance prohibited churches and synagogues in the business district. They are permitted in one of the town’s eight zoning districts. The suit before the 11th Circuit was brought by the congregations to halt the town’s legal attempts to move them into the permitted district-a move that, they claimed, would be futile because suitable land was unavailable. Protecting free exercise The land-use provisions of RLUIPA protect individuals, houses of worship and other religious institutions from discrimination in zoning or other land-marking processes. Congress, after a series of hearings, found that such discrimination is widespread and often results in excluding churches and synagogues even from places where theaters and secular assemblies are permitted. The statute tackles this problem by prohibiting zoning laws that substantially burden the religious exercise of religious institutions absent the least restrictive means of furthering a compelling governmental interest. It also prohibits zoning laws that treats religious institutions on less than equal terms with nonreligious ones, that discriminate on the basis of religious denomination and that totally exclude from a jurisdiction or unreasonably limit religious groups. In the Surfside case, the 11th Circuit held that the zoning restriction did not place a “substantial burden” on the synagogues’ exercise of religion, but it did treat religious institutions on less than equal terms with nonreligious groups. By allowing private clubs such as a Masonic lodge in the business district but barring the synagogues, the court held that the city had violated RLUIPA. The court also upheld the act’s constitutionality, finding it a valid exercise of Congress’ authority under the First, 10th and 14th amendments. “From here on out, if you’ve got a zoning ordinance that treats religious and nonreligious uses differently, you’ve got a problem,” said Becket Fund’s Korten. “That will probably lead to a lot of change in local zoning laws.” Korten noted that a number of district courts have upheld the act’s constitutionality, but the 11th Circuit is the first appellate court to do so. The act also protects the religious exercise of people in institutions. One circuit-the 6th-struck down provisions relating to institutionalized people in a prisoner case, contrary to rulings by the 4th, 7th and 9th circuits. On the act’s land-use side, two challenges are pending in the 9th Circuit, said Jeff Melching of Rutan & Tucker in Costa Mesa, Calif., who represents a local government in one of them. “Fundamentally, the problem for us has been on the substantial-burden side of things,” said Melching. “The term is not defined specifically by the act.” The 9th Circuit, he explained, has defined it to mean a significantly great onus or oppression of religious exercise. “The problem for a local government is that in many instances, plaintiffs in RLUIPA cases interpret substantial burden so broadly it takes away all local land-use authority if accepted.” In the synagogues’ case, the 11th Circuit rejected a 7th Circuit definition of “substantial burden,” saying it is “akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.” Korten said Congress should have defined substantial burden, but courts will work it out. He noted a “notorious” case in Huntington Beach, Calif., involving a small church that wants to worship in a warehouse but cannot because local authorities contend the warehouse does not meet fire safety and other code requirements. At a recent hearing, Korten said, “The judge asked, ‘Is this a civil rights thing or a money thing?’ He decided it was money. The church didn’t want to pay for a sprinkler system. He decided it didn’t belong in federal court. “Courts are becoming much more serious about judging what is and is not a substantial burden. There are still lots of legitimate cases being filed by churches, but some are being filed by churches who think RLUIPA is a get-out-of-jail- free card. It is not.” RLUIPA is “strong medicine,” said Surfside’s appellate counsel Bruce Rogow of Fort Lauderdale, Fla. He said his client is considering its next steps. Proponents of RLUIPA and similar state laws, he said, “have done a very effective job of convincing legislatures and Congress to give more rights to religious organizations than are given to secular organizations.” Reconciling the free exercise and establishment clauses is not easy, he said. “The court has struggled with it for a long time. As long as there is religion and law, this litigation will never end.” But zoning authorities are still hostile toward religious groups, particularly small congregations, said Nathan Lewin of D.C.’s Lewin & Lewin, the synagogues’ counsel. “I think it will take a couple of substantial attorney fee awards before local authorities get the message.”

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