I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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RFRAs, the Establishment Clause, and Land Use Regulation (no! seriously!)

I’ve been giving a lot of thought about Religious Freedom Restoration Acts (RFRA), state and federal, since this Spring (with the passage of Mississippi’s own such act) and this week (with the Hobby Lobby case using the federal act).

Recall that we were told that the state act was fine because the federal act was fine.

What the language of the federal and state RFRA does is this:  It says that, if someone can show that a neutral statute of general application is a “substantial burden” on the exercise of their religious faith, the statute fails unless it can survive strict scrutiny review, which is the most onerous form of constitutional review.  Although the professor’s rubric that strict scrutiny is “strict in theory, fatal in fact,” may be slightly exaggerated, it’s not exaggerated by much.  If a court reaches the point of deciding a statute is a “substantial burden,” that statute is well on the way to being held illegal as applied under the language in RFRAs.

This Spring, my reaction to the passage of the Mississippi RFRA was a little bit visceral, a little bit little-c conservative (do we really know what this thing will do?), and a little bit willing to accept the arguments from supporters of LGBT rights that this was a serious blow to their efforts toward full citizenship.

I’m still where I was on the last point, but, having spent some time trying to become better informed, I’m a lot less reliant on a visceral hostility and more willing to phrase the middle point like this:  OK, given the federal experience and the literature, is this really something we want, and are we sure we know what it will do?

But I want to thrash this out with a more neutral question than gay rights or parades of horribles involving race and folks who believe in Christian identity or who believe as Christians that part of their faith is a Biblical basis for segregation.

Reading about the subject, I decided to seek out the writing of Douglas Laycock, a professor at the University of Virginia Law School, who is to a great extent the intellectual father of RFRAs.

One of his major articles, and a major issue for him, is about when (in his opinion) land use regulation can burden religious worship such that it would violate the RFRAs he is advocating.   The article, “State RFRAs and Land Use Regulation,” 32 U.C. Davis L. Rev. 755 (1999), is available online through Professor Laycock’s site at Virginia.

Laycock presents several problems for which he advocates RFRAs.  He is absolutely convinced that there is a national problem of using zoning laws to discriminate against churches, and that the great power of things like neighborhood associations (HA!), who oppose any development, is making it hard for new churches to open, and he thinks that historic preservation ordinances or statutes are a problem by tying the hands of churches who happen to have buildings designated as historic.  He also thinks that minority churches are particularly likely to get mistreated.

But he’s somewhat slippery about what “mistreated” might be.  I agree with him that there is a problem with the (very few) places he names where public officials are saying, “We don’t want new churches,” and where zoning is used to discriminate against churches as opposed to other similar uses.

But he goes far beyond that.  He makes pretty clear that churches should be privileged and that RFRAs are designed in part to accomplish that.

I’ll make an assertion of what I believe, and would hope the Establishment Clause of the Constitution would support:  That a government entity enforcing land use planning laws should treat a church like any other similar entity, such as a movie theater.    Laycock admits that a city would have an interest in regulating street parking and saying to a church it must have adequate parking to build, but he goes farther than that:  He suggests that ordinances that tie a set number of lots to a set size of building (that apply to everyone) should probably not be applied to a church, because it is a church.

In my view, any arrangement that gives favored status to a church should run afoul of the Establishment Clause.  And, if RFRAs are designed to do that (I am growing to a relatively certain view that they are so designed), they ought to be unconstitutional.

So here’s a non-hot-button way to debate these things:  For land use purposes, should a church be treated the same as other similar uses, or, if the church or its members can concoct a reason to argue that a land use ordinance is a burden on their religious services, must that ordinance survive strict scrutiny when challenged based on a state’s RFRA?

And, if you think my question is unlikely to occur in the real world, recall that, in the case where the United States Supreme Court held that federalism barred Congress from imposing a national RFRA on the states, the church was arguing that a historic preservation ordinance that limited their ability to alter the outside of a historic church was a substantial burden on their religious faith.   Separate out whatever you think of historic preservation ordinances before you leap to answers here.  Is that really the sort of argument we want to allow?

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