Mamaroneck, NY – The federal appeals court ruled last week that the village of Mamaroneck had improperly denied an application by the Westchester Day School, an Orthodox Jewish school, for a new $12 million classroom building.
Subscribe to our Daily Roundup Email
Congress in 2000 passed a law commonly known as Rluipa (pronounced ar-LOO-pah), which said governments could not impose any land use regulations that placed a substantial burden on religious activity unless there was a "compelling governmental interest."
In the Westchester case, the zoning board cited neighborhood concerns about traffic and the impact on a quiet neighborhood. But the courts said the village's decision was based only on "intense and unrelenting pressure" from politically connected nearby residents.
But the law, while enacted as a shield to protect hallowed American rights of religious freedom, can also be a sword, critics say, wielded against the hallowed American rights of local control and homeownership. Consider, for example, the bitter dispute over a proposed rabbinical college that could bring some 4,500 people to an area now zoned for single-family homes in Pomona in Rockland County. As in dozens of other Rluipa disputes, the community not only faces an enormously high bar for rejecting the project, it has to pay all the legal costs if it loses.
"It's an issue Congress never even thought about during its enactment," said Marci Hamilton, one of the lawyers representing Pomona. "All the input was from religious groups. None of it was about its impact on homeowners, and homeowners are one of the largest constituencies in the country."
The law seems headed for the increasingly conservative Supreme Court, where justices will be pulled in two ways: federalism will cast doubts about federal law trumping local land use regulations, and respect for religion will remind them why the law was passed in the first place.
That said, in American life it's hard to bet against religion. "Chances are if you had any efforts to modify it, you'd have parades of monsignors, ministers and rabbis trooping up to Capitol Hill," said Professor Baker. "Elected officials want to do what's popular. No one wants to antagonize religious groups." [NY Times]
The Religious Land Use and Institutionalized Persons Act- RLUIPA – was enacted for 2 reasons. First, many communities used zoning laws to discriminate against certain minority religious groups, such as Jews, Muslims, Buddhists, etc. while usually granting variances for Christian churches and institutions. Second, RLUIPA allows institutionalized persons, such as prisoners, to properly maintain their religion. For example, many prisons would deny Jewish prisoners kosher food, as well as religious needs such as siddurim, tallaisim, tefillin, etc. (a recent case involves the banning of the Rambam’s commentaries because they aren’t on the NYS Dept of Corrections approved book list).
By the way, Marci Hamilton, the lawyer for homeowners who is quoted in the article, has been a long time critic of RLUIPA as unconstitutional for violating the First Amendment separation of church and state, an issue which has already been determined by the U.S. Supreme Court which found RLUIPA constitutional. Interestingly enough, Marci Hamilton is also a professor of Law at Yeshiva University’s Benjamin N. Cardozo School of Law. A graduate of Cardozo, Isaac Jaroslawitz, who was the legal director at the Aleph Institute, testified in Congress in support of RLUIPA.