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Gary Mortara, pastor at the Faith Fellowship Church in San Leandro, CA, wanted to move his congregation into a bigger building (PDF). The plans he submitted to the city, though, called for use of a building located in an area of town that was zoned for a job promotion initiative and did not permit religious assembly, so Mortara’s plans were rejected.

Gary Mortara's image, courtesy of his own church

Done deal, right? Not so fast.
This is where the Religious Land Use and Institutionalized Persons Act comes in. The act, otherwise known as RLUIPA (perhaps the least-helpful acronym ever), requires that, if the government imposes a substantial burden on a landowner’s sincerely-held religious beliefs, then the government must show that it is acting in furtherance of a compelling state interest, and that it has pursued that interest in the least restrictive way possible.
While this seems like a pretty big boon to house-of-worship owners everywhere, RLUIPA actually replaced an earlier statute that allowed local governments even less authority to enact laws that burdened religious activity (that earlier statute was declared unconstitutional).
RLUIPA poses, in my opinion, a handful of interesting questions, both legal and political (only two of which I’m mentioning here).
First: why was Congress so emphatic about getting this law on the books? The Supreme Court had already noted: “It is difficult to maintain that [laws that impact religion] are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.” In other words: Religion doesn’t really have anything to worry about here.
The easy answer is that it’s all politics. This is a very religious country, and voting for laws that help religion helps one’s career. (To be honest, I think that in this case the easy answer is the right answer.)
But for the sake of argument, I wonder if that’s too simple, which leads me to…
Second: What is the proper balance between the Establishment Clause and the Free Exercise Clause? Most of us reading this website are somewhat partial to the Establishment Clause (I know I am), so it’s easy for me to say, “Balance? What balance? This isn’t the 18th century, so let’s just focus on keeping religion out of the government and call it a day.” But the freedom to worship is inextricably linked to the freedom NOT to worship. It is also deeply connected to freedom of speech. Not only can we say what we want, but we can believe what we want, too. So perhaps it’s important to ensure that local governments aren’t phasing out unpopular religious groups through questionable “zoning regulations.” All I know is that atheists are fighting an uphill battle, and it’s one we’ll never win without the First Amendment.
So how do we walk the line between using the Establishment Clause to our advantage, without forgetting that the Free Exercise Clause isn’t going anywhere?
And what will become of Pastor Mortara? The Supreme Court declined to hear his case, and the 9th Circuit has held that summary judgment in favor of the city was improper. This means that, unless a settlement is reached, Mr. Mortara’s case is going to trial. Stay tuned.