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May 8, 2002


The opinion of the court was delivered by: Stewart Dalzell, J


On September 22, 2000, the President signed the Religious Land Use and Institutionalized Persons Act of 2000, Pub.L. No. 106-274, 114 Stat. 803-807, codified at 42 U.S.C. § 2000cc-2000cc-5 (hereinafter the "RLUIPA"), which Congress enacted in order "[t]o protect religious liberty, and for other purposes." Freedom Baptist Church of Delaware County and its Pastor, Chris Keay, invoke this new statute against the Township of Middletown, Delaware County, and its Zoning Hearing Board because of land use restrictions that plaintiffs claim run afoul of the RLUIPA and 42 U.S.C. § 1983.

The Township*fn1 has filed a motion to dismiss which, among other things, asserts that the RLUIPA is unconstitutional on its face. Pursuant to 28 U.S.C. § 2403(a), the United States of America moved to intervene in order to defend the statute. On February 25, 2002, we granted the Government's unopposed motion, and later granted its request for oral argument on this important question, which we held on April 26, 2002.

After extensive briefing, including our receipt of post-argument memoranda dealing with the Establishment Clause issue first raised in the Township's reply brief, we turn now to consider at length the constitutionality of the RLUIPA.


According to the complaint, Freedom Baptist Church is a non-denominational congregation of about twenty-five members. Under Pastor Chris Keay, this new assembly has been worshipping and holding services in Delaware County, Pennsylvania since late in 2000, and has attempted to make Middletown Township its home.

When the Church learned that space was available in an office building at 594 New Middletown Road in Middletown Township that D.R. Real Estate LLC owned, it entered into a lease for the use of half of the first floor of the building, reserving for itself a right of first refusal to rent the second half of the first floor. See Compl. ¶¶ 33, 37. Besides holding Sunday worship services from 8:00 a.m. to 1:00 p.m. and 5:00 p.m. to 7:30 p.m., the Church holds services from 6:30 p.m. to 9:30 p.m. on Wednesdays of each week. Id. at ¶ 34.

On April 5, 2001, defendant Jack McKeown, the Township Zoning Officer, advised one of the owners of the building that the Church's use of the property violated the Township zoning ordinances. Id. at ¶ 41. "Mr. McKeown directed that the use of the property for worship services cease." Id. at ¶ 45. After a hearing on the Church's application for a use variance, the Middletown Zoning Hearing Board allegedly denied that application, and this resulted in an appeal to the Court of Common Pleas of Delaware County, Pennsylvania. Id. at ¶ 47. Last month, we learned that the appeal in the Court of Common Pleas had been settled in early 2002, and that the application was granted, albeit subject to two conditions regarding times of use of the building and arrangements with an adjacent funeral home for overflow parking.

The Church alleges that the Township's zoning ordinance creates seventeen districts, but none "where religious worship is a permitted use." Id. at ¶¶ 48-49. In those districts where religious worship is an allowed use, it is claimed to be a "conditional use and is subject to onerous requirements, i.e., there must be a minimum lot of five (5) acres as well as parking requirements", id. at ¶ 50, and the "land requirement alone would make it next to impossible for a new church to locate within the Township" because such a parcel "within the Township would be prohibitively expensive and it is also unlikely that there would be available land to meet the requirement." Id. at ¶ 51. The Church then contends that the zoning ordinance treats schools less onerously than churches, id. at ¶¶ 54-57, and that the zoning ordinance has the effect of "shutting out any religious group from locating within the Township", id. at ¶ 60.

The first four counts of plaintiffs' complaint assert claims under the RLUIPA, specifically that the Township is discriminating on the basis of religion (Count I), treating the Church "on less than equal terms as a nonreligious assembly or institution" (Count II), placing a substantial burden on their religious exercise (Count III), and "imposing and implementing land use regulations that unreasonably limit religious assemblies within a jurisdiction" (Count IV). Count V asserts that plaintiffs' First Amendment free exercise rights have been deprived, in violation of 42 U.S.C. § 1983. Counts VI, VIII, X, XII and XIV assert violations of rights under the Pennsylvania Constitution. Counts VII, IX, XI and XIII assert § 1983 claims for violations of plaintiffs' freedom of speech, assembly, equal protection and due process rights under the United States Constitution, as applied to the states through the Fourteenth Amendment.

Although plaintiffs have made claims under § 1983 and other sources of law, all parties agreed at the April 26, 2002 oral argument that the RLUIPA constitutionality question is at the heart of this case and involves "a controlling question of law" within the meaning of 28 U.S.C. § 1292(b).*fn2


As noted at the outset, the RLUIPA became law on September 22, 2000. There is little dispute that it was adopted in response to the Supreme Court's partial invalidation in 1997 of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. § 2000bb-2000bb-4, in City of Boerne v. Flores, 521 U.S. 507 (1997). Of particular concern here is § 2 of P.L. 106-274, now codified at 42 U.S.C. § 2000cc. This section deals with "protection of land use as religious exercise" and establishes in subsection (a)(1) a "general rule" that:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly or institution —

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.
Notwithstanding the breadth of this "general rule", subsection (a)(2) immediately limits the applicability of the statute to:

any case in which —

(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

So limited, the statute then, in subsection (b), imposes four proscriptions:


(1) EQUAL TERMS. — No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
(2) NONDISCRIMINATION. — No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(3) EXCLUSIONS AND LIMITS. — No government shall impose or implement a land use regulation that —

(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

Section 4 of P.L. 106-274, now codified at 42 U.S.C. § 2000cc-2, confers a "cause of action" to aggrieved persons "in a judicial proceeding [to] obtain appropriate relief against a government", and specifically asserts that "[s]tanding to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution." The statute also, at § 7 of P.L. 106-274, amends certain sections of the Religious Freedom Restoration Act of 1993 (the "RFRA") that survived City of Boerne.*fn3

As noted, there is really no doubt that the RLUIPA is the result of the Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507 (1997). As the House Report on H.R. 1691, the Religious Liberty Protection Act of 1999, a legislative predecessor of the RLUIPA, put it, "H.R. 1691 was introduced in part in response to the Supreme Court's partial invalidation of the Religious Freedom Restoration Act . . . which itself was enacted in 1993 in response to an earlier court decision", to wit, Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). H.R. 106-219, at 4 (1999). It is apparent that, as the legislative process went on, the bill shrank until it reached the form of S.2869, which is the text of our present law. Indeed, one of the co-sponsors of S.2869, Senator Hatch, expressed his frustration in this respect on the Senate floor when he said:

It is no secret that I would have preferred a broader bill than the one before us today. Recognizing, however, the hurdles facing passage of such a bill, supporters have correctly, in my view, agreed to move forward on this more limited, albeit critical, effort.

146 Cong. Rec. S7774-01 (Jul. 27, 2000) (remarks of Sen. Hatch).

In their Joint Statement, Senators Hatch and Kennedy, S.2869's co-sponsors, noted that the bill in question "is based on three years of hearings — three hearings before the Senate Committee on the Judiciary and six before the House Subcommittee on the Constitution — that addressed in great detail both the need for legislation and the scope of Congressional power to enact such legislation." See, id., Ex. 1, Joint Statement of Sen. Hatch and Sen. Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000 (hereinafter the "Joint Statement"). According to the co-sponsors:

. . . The right to build, buy, or rent such a space [for churches and synagogues] is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.
The hearing record compiled massive evidence that this right is frequently violated. Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways.


The Joint Statement was also at pains to canvass Congress's constitutional authority in this area; as its authors put it, "The hearings also intensely examined Congress's constitutional authority to enact this bill in light of recent developments in Supreme Court federalism doctrine." Id. at S7775. Specifically, Congress identified its authority under the Spending*fn4 and Commerce*fn5 Clauses, as well as the Fourteenth Amendment in enforcing "the Free Exercise and Free Speech Clauses as interpreted by the Supreme Court."*fn6 Id. The Joint Statement then noted that:

Congress may act to enforce the Constitution when it has "reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." City of Boerne v. Flores, 521 U.S. 507, 532 (1997). The standard is not certainty, but "reason to believe" and "significant likelihood."


Defendants' motion to dismiss requires us to test whether Congress has, indeed, conformed this legislation with the Supreme Court's rapidly-evolving federalism jurisprudence of recent years. Indeed, as will be seen, there is a great deal of constitutional architecture that we must consider as we analyze the structure of this seemingly simple statute.

This case illustrates that the RLUIPA reaches down to what has traditionally been a matter of almost exclusively local concern, the enforcement of zoning codes. As far as we are aware, this is the first case to test this aspect of the RLUIPA.*fn7

Is This an Establishment or a Free Exercise Case?

In their memorandum of law filed in response to the Government's memorandum in support of the RLUIPA's constitutionality, defendants for the first time urge that "[w]hat the RLUIPA actually does is violate the Establishment Clause." Defs.' Mem. of Law in Opp. to the Constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 ("Reply") at 2. Defendants of course refer to the first ten words of the First Amendment, "Congress shall make no law respecting an establishment of religion". Specifically, defendants contend that:

The RLUIPA impermissibly advances religion. RLUIPA clearly shows favoritism for those in a religious organization over those who are not part of one. RLUIPA is not an example of Congress' intent to provide "religious protection." To the contrary, it represents congressional intent for a "religious preference." The RLUIPA arms religious entities with almost blanket immunity from land use requirements, while providing no ...

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