Land Use Consequences of the Birth Control Mandate Case

Even though it has been a few weeks since the opinion was handed down, unless you happen to read Land Use Prof Blog you probably have no idea that the birth control mandate case is likely to affect land use regulation. 

As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby Lobby.  The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.  

The State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion, because of the possible effect on land use. 

RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion.”  The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars state and local governments from enforcing land use regulations that substantially burden “the religious exercise of a person.” 

So, FRFA and RLUIPA are related statutes.  But FRFA only applies to the federal government, and RLUIPA only applies in the land use and institutionalized persons’ context.  Both apply to “persons.”   

If for-profit corporations are “persons” under RFRA they are also likely “persons” under RLUIPA.  As Justice Ginsburg points out in her opinion quoting the SLLC’s amicus brief, this will have negative consequences for state and local government:  “[I]t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’  That law applies to land-use regulation.  To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute's reach’ and deeply intrude on local prerogatives, contrary to Congress' intent. Brief for National League of Cities et al. as Amici Curiae 26.”   

The SLLC’s amicus brief focused exclusively on how “person” should be defined in RLUIPA.  It discussed at the practical difficulties that will arise for state and local governments if corporations are “persons” under RLUIPA.  “Interpreting RLUIPA to protect for-profit, secular corporations would dramatically expand the statute's reach. For-profit corporations could avail themselves of RLUIPA's broad definition of religious exercise to characterize secular commercial activity as religious in nature. They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely result would be a dramatic increase in the number of for-profit corporations claiming to engage in ‘religious exercise,’ with a concomitant increased burden on local governments administering land use regulations.”

The National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association signed onto the SLLC's brief.