From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected by land use decisions).
I propose that the best method for analyzing land use decisions should be simple to apply, rely upon external and objective evidence to the greatest extent possible, create incentives for cooperation and resolution, reduce antagonism, and be deferential to both religious users and local government decisions. That can be better accomplished by flipping the traditional order of analysis by determining: first, if the land use decision violates Establishment clause norms; next, if it violates Equal Protection norms; and then, and only then, if the neutral decision nonetheless amounts to a denial of Free Exercise norms.
Albany Government Law Review
Elizabeth Reilly, Empathy and Pragmatism in the Choice of Constitutional Norms for Religious Land Use Disputes, 2 Albany Government Law Review 555 (2009).