Religious grounds for avoiding land use laws

The United States Supreme Court, at the end of its term in June, handed down in Burwell v. Hobby Lobby Stores Inc. a 5-4 decision that dealt a setback to implementation of the Affordable Care Act (also known as Obamacare). The decision found closely held, for-profit corporations to be "persons" able to assert another federal law - i.e., the Religious Freedom Restoration Act (RFRA) - requiring a higher level of judicial review that may restrict federal regulations imposing obligations. In this case the federal regulations required employers to provide their female employees with no-cost access to contraception.

Whatever one thinks of this result, there are other implications that the Hobby Lobby ruling might have in the land use field.

The owners of Hobby Lobby were Christians who believe that life begins at conception. The Department of Justice contended that corporations are not "persons" who may engage in the "exercise of religion," and thus seek RFRA protections. The majority opinion by Justice Samuel Alito reasoned that the Dictionary Act defines word "person" as including for-profit corporations. Moreover, the court accepted the argument that furthering religious autonomy of for-profit corporations serves to further individual religious freedom as well.

RFRA does not prohibit laws and regulations that would have an adverse effect on religious practices; however, it does make such regulations more difficult to promulgate by requiring both a compelling governmental interest to do so and a showing that the least-restrictive-means are used.

Even if the federal government could prove that there was a compelling governmental interest in providing women with cost-free access to four challenged contraceptive methods, the court found the government had not shown why it could not assume the costs of such methods, or why an accommodation afforded to for-profit organizations with religious objections would fail to protect asserted needs of women as effectively as a coverage mandate.

RFRA has been succeeded in the land use context by the Religious Land Use and Institutionalized Persons Act (RLUIPA). Among other things, RLUIPA prohibits imposition or implementation of a land use regulation in a manner that imposes a substantial burden on the religious exercise of a "person." In such cases, the regulation may be upheld only if the public agency shows a "compelling governmental interest" and uses the "least restrictive means" of achieving that interest. RLUIPA does not define "person;" however, the Department of Justice has used the term to include only "individuals, religious assemblies and institutions." The Hobby Lobby ruling thus expands this term.

It wasn't as if the court wasn't warned. An amicus curiae brief of the National League of Cities said, "To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would 'dramatically expand the statute's reach' and deeply intrude on local prerogatives, contrary to Congress' intent."

Justice Ruth Bader Ginsburg's dissent agreed and noted the potential application of RLUIPA to land use regulations applied to religious uses. In other words, RLUIPA protections could run to any for-profit entity that claims a religious objection to a land use requirement.

One doesn't need to have special expertise in land use law to think of the anomalies that this application might create. Individual regulations on signs, setbacks, parking and other matters could be challenged as not meeting the strict scrutiny tests to justify their inclusion in a zoning code.

Moreover, individual conditions imposed on a variance or conditional use permit must meet those standards as well and may lack justification in that they require highly discretionary decision-making driven by the facts. The world indeed would be turned upside down.

Even more troubling is the trigger for this analysis - it need be only a deeply held religious (or perhaps ethical) consideration that would transform a zoning, subdivision, design or other land use regulation into an analysis of whether the regulation were needed at all and whether there were a less-restrictive alternative. Those people who know the world of environmental impact statements can appreciate the fertile field for speculation and litigation that would result.

Time will tell whether the Supreme Court will continue its result-based orientation favoring religion. Justice Antonin Scalia, who once abjured separate treatment of religious uses, joined the majority in the Hobby Lobby decision. Perhaps the prospect of undoing zoning laws may cause him to take a different approach. However, ideology appears to have a stronger position than practical consistency on this court.


Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at

Published: Wed, Aug 13, 2014