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Jewish World Review May 6, 2004 / 15 Iyar, 5764 Score one for the faithful in the culture wars! By Roger Severino Orthodox synagogues battled discrimination by local government and won, reinforcing protection for all faiths http://www.jewishworldreview.com | With the recent re-affirming by a federal appeals court of the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the days when municipalities could discriminate against religious believers with impunity are numbered. It should be self-evident. Unless you are on a plane or a boat, religious expression involves some kind of land use. Unfortunately, far too many municipalities are ignoring this fact when applying their zoning laws and religious liberty suffers. In response, the courts have put teeth into the RLUIPA, a young civil rights law designed to restore full religious freedom to the land use context. This development is necessary as local zoning officials have time and again trampled on the rights of sincere religious believers, and for a variety of reasons. Many municipalities shut the door on houses of worship to prevent real or imagined tax-base erosion. Others listen too closely to the NIMBY fears of activist neighbors who, oddly enough, think houses of worship make bad neighbors. And finally, as hard experience has shown, cities and townships at times use zoning laws as a cover for outright religious bigotry. As a result, religious expression has slowly been banished and ghettoized; sometimes through supposedly "general" laws, sometimes through impenetrable red tape or impossible conditions, and sometimes by arbitrarily denying permits to the "wrong type" of church or religion. Houses of worship are routinely banished to the far corners of municipalities by being categorized as "inconsistent with the character" of residential, commercial, industrial, and agricultural zones in turn (are there any places left?). Not to be outdone, some municipalities actually amend their zoning laws in direct response to permit applications by religious groups. These religious gerrymanders leave congregations with literally no place to go. Recognizing these threats to religious liberty, the United States Congress unanimously passed RLUIPA in 2000. RLUIPA is robust. It prevents municipalities from discriminating against or "substantially burdening" sincere religious exercise without a compelling reason and, with the help of the courts, is providing a potent counterweight to the discretionary power of local zoning officials. Predictably, some municipalities are not happy with RLUIPA's strong civil rights protections and have even gone as far as to challenge the law's constitutionality. However, in Midrash Sephardi v. Town of Surfside, the Eleventh U.S. Circuit Court of Appeals recently re-affirmed the following common sense principle: Local zoning interests, while important, do not outweigh the fundamental right to freedom of religion. In a 60 page decision, the three judge panel unanimously found that RLUIPA "is a constitutional exercise of Congress's authority under the First, Tenth and Fourteenth Amendments." This is the first time a federal appeals court has ruled on the constitutionality of RLUIPA's land use provisions, and it upheld the law against all objections. This is an extraordinarily important decision and will have significant ripple effects throughout the court system. The facts of Midrash are not unusual for a RLUIPA case. Midrash Sephardi and Young Israel of Bal Harbor, two small Orthodox Jewish congregations formed in the 1990s, were holding prayer services on the second floor of a bank building in the town of Surfside, Florida. The dispute began in 1999 when Surfside tried to shut down the worship services on the premises and threatened fines of $1,000 per day. Surfside argued that it was merely following its "neutral" zoning laws — laws that completely ban churches and synagogues in seven out of the town's eight zoning districts but allow private clubs, lodge halls, cinemas, schools, studios and health clubs instead. Not surprisingly, the Eleventh Circuit had a far different take on Surfside's zoning ordinance and held that it "improperly targeted religious assemblies and violated Free Exercise requirements of neutrality and general applicability." Key to the holding was the fact the town's "provision excluding churches and synagogues from locations where private clubs and lodges are permitted violates the equal terms provision of RLUIPA." The little guy won for a change and RLUIPA made all the difference. RLUIPA codifies the best of our nation's tradition of religious tolerance and accommodation. It makes explicit what Jefferson and Madison knew at the founding and what most Americans already know today — that religious liberty is not a matter of local concern but of national importance. Far too often unfounded (and often prejudiced) complaints from fearful neighbors on the one hand, or the cold tax-base calculations of zoning officials on the other, spur a municipality to remove the welcome mat when it comes to religious land use and only religious land use. However, in its thorough and well-reasoned opinion, the Eleventh Circuit determined that RLUIPA is a constitutional response to unconstitutional zoning practices Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here. Roger Severino is Legal Counsel for the Becket Fund for Religious Liberty. (The Becket Fund's "friend of the court" brief in the Midrash case can be found at http://www.rluipa.com/cases/MidrashSephardiAmicus.pdf). Comment by clicking here. © 2004, Roger Severino