Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When zoning officials in Middletown Township in Delaware County, Pa., discovered that a 25-member church was holding regular services in an office building, they ordered it shut down since the makeshift chapel was located in a strictly commercial zone that does not allow for any houses of worship. But Freedom Baptist Church of Delaware County and its pastor, Chris Keay, took the township to court, arguing that the zoning code violates the First Amendment rights of the church and its congregation. The lawsuit also invoked a relatively new and so-far untested law — the Religious Land Use and Institutionalized Persons Act — which effectively exempts religious groups from most local zoning rules unless a community can show a “compelling” need to impose the restrictions. Middletown Township’s lawyers responded to the suit by attacking the law itself, arguing that RLUIPA is unconstitutional because it requires “preferential treatment” for religious organizations. Now, in the first decision of its kind, a federal judge on Wednesday upheld the constitutionality of RLUIPA, finding that the new law does not suffer from the same flaws that prompted the U.S. Supreme Court to strike down key provisions of the Religious Freedom Restoration Act (RFRA). In his 46-page decision in Freedom Baptist Church of Delaware County v. Township of Middletown, U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania found that Congress was acting within its powers under the Commerce Clause. The ruling is a victory for the church’s lawyer, L. Theodore Hoppes of Shields & Hoppes and Becket Fund attorneys Anthony R. Picarello and Roman P. Storzer. The church originally filed suit in the Delaware County Court of Common Pleas and, in a settlement, won the right to stay in the office building. Dalzell found that the state court settlement didn’t moot the federal suit since the church is seeking monetary damages for the costs of the state court litigation, as well as attorney fees if it wins the federal suit. Dalzell rejected defense arguments that RLUIPA is an improper attempt by Congress to overturn recent Supreme Court decisions. Instead, Dalzell concluded that Congress carefully avoided the problems that had proven fatal to RFRA. For the most part, Dalzell found that RLUIPA simply “codifies” the right to freedom of religion as it has played out in case law from the high court. To the extent that the law goes further, Dalzell found that since its scope is limited to land use decisions — where governments often make “individual assessments” — Congress was following the Supreme Court’s lead in distinguishing between neutral laws of general applicability and those “where the state has in place a system of individual exemptions,” but nevertheless “refuse[s] to extend that system to cases of ‘religious hardship.’” Middletown Township’s lawyer, Jennifer Holsten, argued that RLUIPA violates the Establishment Clause. “RLUIPA impermissibly advances religion. RLUIPA clearly shows favoritism for those in a religious organization over those who are not part of one,” Holsten wrote. As a result, she said, the law “is not an example of Congress’ intent to provide ‘religious protection.’ To the contrary, it represents congressional intent for a ‘religious preference.’ The RLUIPA arms religious entities with almost blanket immunity from land use requirements, while providing no such immunity or protection to non-religious entities. This favoritism violates the Establishment Clause.” Dalzell disagreed, saying RLUIPA doesn’t implicate the Establishment Clause at all, but instead it must be analyzed under the Free Exercise Clause since its goal is to protect churches and religious institutions from discrimination. But Dalzell also rejected the arguments of Justice Department lawyers who said RLUIPA did nothing more than reiterate the rights and remedies already available in a civil rights suit under Section 1983. Instead, Dalzell concluded that RLUIPA “in fact places a statutory thumb [on the scale] on the side of religious free exercise in zoning cases.” But since Congress was acting to remedy a problem, Dalzell found that the thumb was properly on the scale. Sens. Ted Kennedy and Orrin Hatch, the two co-sponsors of RLUIPA in the U.S. Senate, stated that they had compiled “massive evidence” that churches and synagogues were routinely denied the right to build, buy, or rent space — a right they termed “an indispensable adjunct of the core First Amendment right to assemble for religious purposes.” Their joint statement said that “churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways.” Holsten argued that Congress exaggerated the problem and that, for federalism’s sake, Dalzell should reject a law that upset the traditional divisions of power in which zoning decisions are left to local governments. Dalzell disagreed, saying it was not his place to second-guess Congress. “Whatever the true percentage of cases in which religious organizations have improperly suffered at the hands of local zoning authorities, we certainly are in no position to quibble with Congress’s ultimate judgment that the undeniably low visibility of land regulation decisions may well have worked to undermine the Free Exercise rights of religious organizations around the country,” Dalzell wrote. “And the mere fact that zoning is traditionally a local matter does answer Congress’s undoubtedly broad authority … to regulate economic activity even when it is primarily intrastate in nature.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.