Panel 3: Constitutional Theories of RLUIPA

Eric Schillinger, Staff Writer, & Daniel Katz, Staff Writer,    

     We’re back live in the Dean Alexander Moot Court Room for the third panel of the Albany Government Law Review’s Symposium – God and the Land.1  The final panel of the day focused on the constitutional issues surrounding RLUIPA and the interaction of land use and religion.2  Four speakers made up the third panel, land use attorney Wendie L. Kellington,3 the former chief referee of Former Chief Referee for Oregon Land Use Board of Appeals and presently a member of the faculty at Puget Sound Law School.  Elizabeth Reilly,4 dean of the University of Akron School of Law, is our second speaker.  Following Ms. Reilly was Leslie Griffin,5 Larry and Joanne Doherty Chair of Legal Ethics at U of Houston Law Center.  Last to speak was Frederick Gedicks,6 Guy Anderson Chair at the Bingham Young School of Law.

     Wendie Kellington began her discussion with an examination of how discrimination in land use proceedings is rarely overt.  Providing a historical background, Ms. Kellington argued that the revolutionary passions that made up the world of eighteenth century America were key to the development of the free exercise clause.  She argued that during the revolution, American colonists wanted  to overthrow all hereditary forms of government, create a government of laws and not of men, and develop a republican system of government that could protect the governed and grow with time.  She stated that the key to the free exercise clause’s development relied on this revolutionary spirit, and that in today’s society, where the passionate struggle for revolution in government is long over, American society lacks the tenacity it once had in this realm.

     Ms. Kellington went on to discuss the role of Thomas Paine and his works, Common Sense7 and The Age of Reason.8  Ms. Kellington noted that the phrase “free exercise of religion” originally came from Common Sense.  She emphasized that the free exercise of religion essential boiled down to a – believe what you want, do what you want, don’t have to go to a government church model.  Ms. Kellington went on to discuss the case, Cam v. Marion County,9 illustrating how Paine’s enlightenment based ideology on free exercise operated in twenty first century America.

    In Cam, a group of Russians came to Oregon and established a church.10  Eventually a portion of the church goers separated themselves from the original congregation and began worshiping in a barn, a few hundred feet down the street from the original church.11  This barn was built on what had been zoned as “high value farm land.”12  There was an exception for preexisting uses on high value farm land, allowing the original church, but the second church failed to qualify as a preexisting use.13  The original church goers were actually the people that reported the zoning violation of the second church.14  The court held that the instigator rival church could not receive the benefits of county powers over the second church.  They concluded that although the preexisting use exception did not apply, because the barn used for prayer was preexisting, enforcing the zoning laws in this instance would have provided the original church with a means of wielding government authority against the second church.15

     Ms. Kellington concluded by suggesting that where local opposition opposes religious land use – local policies makers are likely to not uphold RLUIPA or the first amendment to avoid political disaster.  Finally she stated that it is critical to keep the history of the country and first amendment in mind when advocating in free exercise situations.

     Elizabeth Reilly spoke next.  Ms. Reilly noted that she is a member of the Unitarian Univeralist Church and argued that the analytical approach to religious land use claims is backwards today.  She believes the order should be restructured so that free exercise is not the first thing analyzed when it a claim of this nature is brought.

     She argued that from the perspective of both governments and religious entities requests for religious land use needs to be handled quickly and locally.  Ms. Reilly used the example of her own growing congregation, which was called a cult by other locals when it started to expand.  It was an inescapable antagonism, forcing the church to litigate issues to achieve what they thought was best for their congregation.  Ms. Reilly emphasized the fact that religious communities should not exist so they can fight together, rather they places which should be devoted to internal peace seeking.  Having to go to court to receive fair treatment was a deeply frustrating situation for the congregation she is a member of. 

     Ms. Reilly went on to suggest a preferred method for resolving religious land use disputes.  She argued that the current method is all wrong, and that free exercise claims should not be the emphasis of religious land use issues.  Rather, Ms. Reilly argued that external and objective evidence should be examined when a RLUIPA issue presents itself.  She believed this model would reduce antagonism among religious communities and encourage respectful interaction.

     Ms. Reilly went on to present a refined set of guidelines for application in religions land use issues.  She argued that the first question asked in such a situation should be “how has the local government treated all of the other religious requests”?  This question allows for comparison to other religions.  If no consistency exists, a differential impact, establishment problem is created.  This question is beneficial because it keeps highly charged questions about what is core to religion and proper exercise out of the mix.  Ms. Reilly continued to argue that consistency should be the main consideration of the guidelines, and that where an inconsistent decision is made the government’s actions would be subject to strict scrutiny by the court.

     Ms. Reilly argued that equal protection should be the second question addressed in religious land use issues.  She stated that the court should ask “are we treating religious uses in the same way we treat secular uses?”  Again, this model of analysis provides legitimate grounds for litigation where equal protection is violated, but likely avoids highly charged religious debates which have little impact on the actual legal proceedings, but can cause great frustration and anger members of the involved congregation of congregations.

     Ms. Reilly argues that only after looking at consistency between churches and equal protection between secular and religious institutions, should a traditional free exercise claim be addressed.  By placing this claim third in the analysis of the issue it would narrow the discussion and establish good faith of the parties according to Ms. Reilly.  This would create a more effective, less antagonistic mode of resolving potential disputes.  Finally, Ms Reilly argued that this form of analysis would add more predictability, clearer standards and better communication, among related parties.

     Leslie Griffen spoke third in the panel.  She argued that a role of the Constitution is to protect against discrimination but that sometimes in trying to fight discrimination the establishment clause is improperly implicated.  Mr. Griffen stated that proper construction of the establishment clause should be a single precept.  In her opinion, it prohibits classification based on religion to justify action or inaction.  Simply put the law shouldn’t confer a benefit or impose a burden. Analysis of RLUIPA is troubling because it focuses on its own gaps rather then the actual statute being challenged. 

     Ms. Griffen further discussed the free exercise clause, looking at Employment Division v. Smith,16 which held simply that in a constitutional democracy religious services are not above the law. 

     Ms. Griffen argued that the free exercise clause prohibits discrimination against religion, but RLUIPA targeted neutral generally applicable laws for zoning creating sweeping legislation regarding any exercise of religion

     Finally, Frederick Gedicks provided a summary commentary, discussing each of the first three panelist points.  He noted a common theme: that RLUIPA is a statute designed to prevent deprivation of religious authority, but only in a primitive sense.  He argued that the statute is only half necessary, but plays a role in the “slow but steady eclipse of liberty by equality.” 

     Mr. Gedicks commented on Ms. Kellington’s discussion of Thomas Paine.  He stated that a non-denominational use model would likely gain Paine’s approval, and questioned if Paine could have envisioned a society where religious and political beliefs were totally separate?  He noted the fact that even today the United States as a majority is a Christian nation, which gives the majority the power to treat other minority religions as if they are odd.

     Mr. Gedick’s then commented on Ms. Riley’s discussion of denominational discrimination, drawing an analogy to viewpoint discrimination under the first amendment. 

     Finally Mr. Gedicks commented on Ms. Griffin’s discussion, stating that once we protect religion against varies forms of discrimination, it must compete with other ideas.


1 Albany Government Law Review Symposium, God and the Land (Oct. 1-3, 2008) (last visited Oct. 7, 2008).

2 Religious Land Use and Institutionalized Persons Act, 42 USC §§2000cc – 2000cc-5 (2008) (hereinafter, RLUIPA).

3 Law Offices of Wendie L. Kellington, Attorney at Law, Attorney Profile for Wendie Kellington, (last visited Oct. 7, 2008).

4 University of Akron School of Law, Faculty Profile for Elizabeth Reilly, (last visited Oct. 7, 2008).

5 University of Houston Law Center, Faculty Profile for Leslie Griffen, (last visited Oct. 7 2008).

6 BYU Law School, Faculty Profile for Fredrick Gedicks, (last visited Oct. 7, 2008).

7 Thomas Paine, Common Sense (Big Fish Publishing Inc. 2006) (1776).

8 Thomas Paine, The Age of Reason (Book Jungle 2007) (1795).

9 Cam v. Marion County, 987 F. Supp. 854 (U.S. Dist. Ct. 1997).

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Employment Div. v. Smith, 494 U.S. 872 (1990).

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