In a case we've been following, a San Francisco Bay Area municipality has filed a cert petition asking the U.S. Supreme Court to review the Ninth Circuit's opinion in International Church of the Foursquare Gospel v. City of San Leandro, No. 09-15163 (Feb. 15, 2011). In that case, the Ninth Circuit held that the church had established enough to get to trial under RLUIPA's “substantial burden” provision, and reversed the district court's grant of summary judgment to the city.
The court held that there was a triable issue of fact regarding whether the city's denial of the church's request for a an amendment to the zoning code and a conditional use permit to allow the construction of new facilities on industrial land imposed a substantial burden on the church's religious exercise under RLUIPA. The court applied the "strict scrutiny" standard of review, and held that the city failed to prove a compelling interest. More here from the San Francisco Chronicle and here from the San Leandro Patch.
The Questions Presented:
In Employment Div. v. Smith, 494 U.S. 872 (1990), this Court held that, under the First Amendment’s Free Exercise Clause, the "vast majority" of its precedents apply low-level scrutiny to neutral, generally applicable laws imposing a substantial burden on the free exercise of religious conduct. Id. at 884-85. This Court noted in dictum, however, that when a law is decided through a system of "individualized assessments," strict scrutiny applies. Id. at 884. Strict scrutiny requires the government to prove its law rests on a "compelling interest" and is narrowly tailored. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).Congress enacted the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1-4 (1993), to override this Court’s free exercise doctrine. It was invalidated in Boerne v. Flores, 521 U.S. 507 (1997). In response, Congress enacted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006) ("RLUIPA"), which is a conglomeration of (1) Congress’s preferred standard for free exercise cases, which is intended to trump this Court’s free exercise doctrine, and (2) concepts that are borrowed directly and intentionally from this Court’s free exercise doctrine.Three terms in RLUIPA, each of which was appropriated from this Court’s free exercise doctrine, are now the subject of persisting and deepening splits in authority among numerous federal circuit and state supreme courts. They are: "substantial burden," "individualized assessment," and "compelling interest." All three splits affect both First Amendment and RLUIPA free exercise cases, and each requires this Court’s attention and clarification.The questions presented are:1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a "substantial burden" under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006).2. Whether case-by-case analysis of a land use application constitutes an "individualized assessment" under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(2)(C) (2006).3. Whether neutral, generally applicable planning principles may be a "compelling interest" of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1)(A) (2006).
Thanks to Jacob Cremer (Florida Land Environment blog) for the tip.
