Panel 1: A Background on Religious Discrimination in Land Use

Daniel Wood, Staff Writer, & Robert Magee, Staff Writer,

     The goal of the Symposium’s first panel was to provide a context for the development of the Religious Land Use and Institutionalized Persons Act (RLUIPA).1   Panelists discussed how property ownership patterns have affected the availability of land for religious uses, how religious discrimination has manifested itself in land use, and how the use of Native American sacred lands has been regulated. 

Participating in the panel were:

  • Angela C. Carmella, of Seton Hall University School of Law, who focused on why RLUIPA is necessary for religion, land use, and the common good.
  • Robert J. Miller, of Lewis and Clark Law School, who focused on sacred Native American sites.

     Each speaker had unique experience in the area of his or her specialty.  Professor Carmella studied at both Harvard’s law and divinity schools.  Professor Miller is a member of the Eastern Shawnee Tribe of Oklahoma, and is the Chief Justice of the Court of Appeals of the Confederated Tribes of the Grand Ronde Community of Oregon.2  

Prof. Carmella:  

     Religious worship is often an intense use of land.  RLUIPA allows for judicial scrutiny of development proposals for religious use. This is necessary because such development connects religious exercise to land use, to property ownership, and to the common good.  Prof. Carmella believes that courts need to make these connections explicitly in order to protect religious freedom in the United States. The RLUIPA preamble even states, “right to assemble for the purpose of worship is at the very core of religious freedom.”   

     Why did we need a statute to make a link between religious exercise and land use?  Many courts had already made the connection for themselves. For instance, the 6th Circuit held that the act of construction wasn’t a religious ritual or tenet, so was not a religious act. Therefore zoning prohibiting construction was not an infringement on the free exercise of religion.3  This and other decisions made land use decisions unassailable as free exercise infringements. RLUIPA overruled these precedents by drawing the connection between religious exercise and property ownership.4 

     RLUIPA can only be invoked by people who own affected property. This distinction is interesting because we have most often been preoccupied with religion as it relates to public forums, etc. The implicit understanding of this idea is that religious activity was to be carried out on private property, so the question of where religious groups may get property in order to worship matters a great deal. In courts, so long as there was somewhere in the jurisdiction for a church to exist, infringement of free exercise could not be claimed. But RLUIPA allowed for the notion that religious exercise could be infringed by an action’s effect on a church’s property. 

     Zoning laws are imprecise and may exclude religious use without explanation.  RLUIPA is needed to ensure equal access to private property for religious uses.  

    RLUIPA is aimed more specifically at anti-religious zoning rules, or zoning rules that don’t adequately account for the public good via religious worship and equality.  For example, when houses of worship are found to be commensurate with residential uses and disallowed, the church would not be able challenge the ordinance under under the Free Exercise clause, as Judge McConnell lamented earlier that morning/ Only under  RLUIPA could the aggrieved religious community seek redress. In turn, RLUIPA allows courts to examine these zoning decisions and allows them to determine whether or not there is a burden on religious exercise. Post-RLUIPA cases have allowed houses of worship to go up where they hadn’t before, and these churches have often been stabilizing forces in the communities in which they go up, adding to the public good, in civic republican sense espoused by Chief Justice Shepard on Wednesday night. 

Prof. Miller

     Prof. Miller spoke on Native American religious land use. He used to practice under the Religious Freedom Restoration Act (RFRA) which was later deemed unconstitutional in City of Boerne v. Flores. 12  

     Indian religions are ceremonial and are often centered on particular rituals and to be conducted at particular time and at particular sacred sites.  These sites are rarely on reservations. Instead, they are on state, federal, or private lands.  Gaining access to these sites is clearly critical to the exercise of many Native American religions.

     This is problematic for practitioners of Native American religion, since the thrust of American policy towards Indians has been to 1) ignore, 2) marginalize and 3) criminalize their religion and culture. Theis has been coupled with a implicit social policy of Christianizing and civilizing Native American religion.  

     In 1978, Congress enacted American Indian Religious Freedom Act (AIRFA).13But in practice, the Act amounted to a policy statement and as a practical matter hasn’t been very effective; Native Americans still couldn’t get onto the sites mentioned before and in no cases did AIRFA allow them to do so.   

     Prof. Miller discussed the Supreme Court case, Lyng v. Northwest Indian Cemetery Protective Ass’n.14 The plaintiffs in this case were three tribes who needed access to particular sights in the norther highlands of California in order to practice a crucial religious ritual.  They invoked the Free Exercise clause  in an attempt to win an injunction when the Forest Service was trying to build a road through this site to facilitate logging in the area. In the opinion, O’Connor wrote that the road worked no substantial burden on Native American religious exercise, that a substantial burden requires you be compelled to violate your religion. Prof. Miller noted, however, that the road in this case foreclosed the plaintiff’s ability to conduct this ritual and that it effectively destroyed their ability to practice their religion. It was interesting that even the destruction of a religion did not, apparently, violate the Free Exercise clause.

     Some years later, in 1996 President Clinton issued Executive Order 13007, mandating that federal agencies will accommodate Indian religious access to sacred sites.15This clearly marked an improvement in ensuring Indians retain the right to practice their religion, but, like AIRFA, it was ultimately a policy statement. Most progress has instead come through the legal ingenuity and work of Indian legal scholars.

    Recently Indian religious practitioners have used the NHPA (National Historic Preservation Act) to preserve certain sites.16  All you have to do is use the word “religion,” call it cultural, and NHPA provides plaintiffs a lot more protection from the federal government. This tactic has been successful in a number of places.  

     Tribes also lobby Congress well. which has led to some important accommodations.  There are laws allowing sincere practitioners of Native American religions to use peyote.  Also the Indian Civil Rights Act,17 passed in 1968, the Indian nations of the U.S. may recognize and support religion; there is no Establishment Clause. 

    The effort of Indian religious practitioners to adhere to the religious demand that an eagle feather be place on the body of a loved one has yielded mixed results.  Congress prohibits hunting eagles, but with  the needs of Indian religious practitioners, it has created a permit system to get eagle feathers from eagles that have been electrocuted or died of other natural causes.  Still, this process may take 18 months, which perhaps typifies the efforts of Indians to retain their religious a cultural identity in the face of rampant development across the nation.


1  42 U.S.C. § 2000cc (2006).  The full text of the Act can be viewed at

2  Also see Prof. Miller’s blog, “Native America, Discovered and Conquered,” at

3  Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983).

4  RLUIPA § 8(7)(B), 42 U.S.C. § 2000cc-5(7)(B) (“The 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.”).

5  Pub. L. No. 88-352, 78 Stat. 241.

6  RLUIPA § 2(a), 42 U.S.C. § 2000cc(a).

7  Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006).

8  Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).

9  RLUIPA § 2(b)(1), 42 U.S.C. § 2000cc(b)(1).

10  RLUIPA § 2(b)(2), 42 U.S.C. § 2000cc(b)(2).

11  RLUIPA § 2(b)(3), 42 U.S.C. § 2000cc(b)(3).

12  42 U.S.C. § 2000bb (2006).  The text of the Act can be viewed at; City of Boerne v. Flores, 521 U.S. 507 (1997).

13  Pub. L. No. 95-341, 42 U.S.C. §§ 1996, 1996(a).

14  485 U.S. 438 (1988).

15  Exec. Order No. 13,007, 61 Fed. Reg. 26771 (May 24, 1996).  The text of the Executive Order can be viewed at

16  National Historic Preservation Act (NHPA) of 1966, 16 U.S.C. § 470 (2000).  A copy of the Act can be downloaded from

17  Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303 (2006).  The text of the Act can be viewed at

1 thought on “Panel 1: A Background on Religious Discrimination in Land Use”

  1. Thanks very much for sharing this interesting post. I am just starting up my own blog and this has given me inspiration to what I can achieve.

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