2013 Articles

Abandoning the Use of Abstract Formulations in Interpreting RLUIPA’s Substantial Burden Provision in Religious Land Use Cases

Bernstein, Robert M.

This Note argues that the circuits’ use of vague formulations in interpreting RLUIPA is overly restrictive and that an alternative multifactor approach—one that considers both the manner in which the state implements its law and the manner in which the church experiences the burden—would provide a more practical, workable paradigm for courts to employ in the future in resolving actual historic preservation and land use disputes. That is, this Note suggests that it is the circuits’ very reliance on talismanic formulations that is problematic because RLUIPA’s substantial burden provision, particularly in the land use context, does not lend itself to the kind of bright-line definitions that the circuits have developed. The solution is not to choose among the circuits’ formulations but to chart a new approach entirely. To clear some underbrush, Part I introduces the structure and text of RLUIPA and outlines the colorful legislative history of the statute. This Part sketches the roughly ten-year prelude to RLUIPA, which commenced with the Supreme Court’s landmark free exercise decision in Employment Division, Department of Human Resources of Oregon v. Smith and climaxed with a constitutional waltz between Congress and the Court. Part II provides an in-depth examination and critique of regnant approaches to interpreting RLUIPA’s substantial burden provision. It argues that the various formulations relied on by the circuits, though derived through different means, are problematic in that they do not provide a workable framework for courts to use in deciding actual disputes. Part III first proposes an alternative multifactor framework that courts can employ to resolve real RLUIPA controversies. It then illustrates the utility of this analytical approach by applying it to the case of the Third Church.