In last week’s, RLUIPA Round-Up we reported about the case Hale v. Federal Bureau of Prisons (D. CO 2015) in which the court found that the Church of the Creator – a white supremacist movement that advocates “total racial segregation so as to stop the mixture, and hence destruction, of White culture and genetic stock” – may qualify as a religion under the First Amendment to the U.S. Constitution.

Why do we think it is worth mentioning the decision in a second post?  After all, our focus at RLUIPA Defense is religious land use and zoning.  When considering a land-use application for a proposed religious use, it is important for planners and local officials to know how to treat a use that might not, at first blush, appear religious in nature.

The Religious Land Use & Institutionalized Persons Act (RLUIPA) defines “religious exercise” broadly as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”  It adds that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”

The courts have afforded religious protection to individuals with what some may describe as non-traditional religious beliefs.  In Kaufman v. Pugh, the Seventh Circuit found that Atheism should be treated on the same footing as other religious beliefs under the First Amendment.  Courts have also treated Wiccan beliefs as religious exercise under RLUIPA.  And many courts have found that social services and other activities that do not appear inherently religious can still be religious in nature.  Here’s a quick RLUIPA quiz.  Do you think the following activities are religious exercise?[1]

• Running a food pantry
• Allowing homeless individuals to sleep on the steps of a place of worship
• Leasing space within a place of worship to pay for certain repairs to the building
• Selling property to fund a religious mission
• Operating a cemetery
• A gathering place for swingers
• Providing psychic services
• Physical abuse of a fellow cult member
• Operating a homeless shelter
• Operating a Glee Camp

Courts and local governments should know that they cannot question the validity of one’s religious beliefs.  The Supreme Court stated in Employment Division v. Smith: “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”  But local governments can question whether the beliefs are sincerely held or if they have been manufactured for some ulterior motive.

In the land use context, a religious belief may not be sincerely held if it appears that an applicant is simply asserting the belief as a way to circumvent zoning regulations.  The example of the Georgetown frat brothers who incorporated as a nonprofit religious organization known as the “Apostles of Peace” comes to mind.  The Apostles had hoped to get around local regulations limiting the number of unrelated individuals in a single house, but were not successful.  In Church of Universal Love & Music v. Fayette County, a federal court in Pennsylvania found that there was some evidence to suggest that a religious group – which claimed its religious mission was to “advance religion through music and to provide a spiritual resource for all …” – seeking to use 150 acres to host music events had been created to bypass zoning requirements.

What might one make of all of this?  As a general rule, planners and local officials may be well advised to assume a use is religious if an applicant says it is.  It may be better to proceed cautiously and evaluate whether denial or partial approval of an asserted religious use could be deemed a burden on religious exercise, and whether other analogous religious uses have been approved by the municipality.  Otherwise, it is possible that challenging religious beliefs could be used to support a claim of discrimination.  Still, there are some situations, such as the Georgetown fraternity example and the Church of Universal Love and Music, where it may be obvious that the “religious beliefs” have been concocted for non-religious reasons.

[1] Courts have held; yes; yes; no; no; yes; still undecided; no; no; yes; still undecided.

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