Throughout its First Amendment jurisprudence, the Supreme Court has acknowledged the difficulty inherent in determining the scope of the multivalent term “religion.” The Court has repeatedly struggled to articulate workable definitions of religion, religious belief, and religious exercise. And the struggle is ongoing. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) protects “religious exercise” in the land-use context. If a claimant can prove that its religious exercise is substantially burdened by a land ordinance or zoning regulation, it may receive an exemption.
Although RLUIPA offers a definition of “religious exercise,” it remains unclear just what types of land uses and activities are protected by the statute’s broad scope. Surely RLUIPA protects formal worship uses, such as hosting a mass or offering Sunday School classes, but does it protect a homeless shelter on church grounds? Residential housing for synagogue staff? A Christian radio show?
This Note examines the current framework used to assess religious land-use claims under RLUIPA, arguing that this analysis not only leads to inconsistent outcomes but also impermissibly requires judges to involve themselves too deeply in questions of religious belief. Recognizing the danger in having judges act as the arbiters of religious belief, this Note proposes an alternative criterion for what uses ought to count as religious exercise: sincerity alone. If a land use is considered to be a sincere extension of a religious person or entity’s religious belief it should qualify as religious exercise. This principle is supported by the Court’s own First Amendment jurisprudence and the text and legislative history of RLUIPA.
Taylor Luckey Brennan, “Souls Aren’t Saved Just in Church Buildings”: Defining “Religious Exercise” Under the Religious Land Use and Institutionalized Persons Act, 69 Duke L.J. 1353-1390 (2020)
Available at: https://scholarship.law.duke.edu/dlj/vol69/iss6/3