And congress said, "let there be religious land use": a RLUIPA primer.

A Jewish congregation seeks to hold weekly religious services in a house located in a part of the city zoned for residential use only; must the city allow it to do so? A Christian congregation wishes to set up a church in storefront premises in a strip mall zoned for commercial use only; must the town allow it to do so? In each case, will the interests that have long led even well-motivated government actors to reject requests for variances and special use permits--such as reducing traffic, parking problems, noise, and congestion--suffice to rebut the cries of "religious freedom"?

As most of the city attorneys of this country are now undoubtedly aware, these questions have become much more difficult to answer in light of the enactment of the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). (1) The core provision of the section of the act entitled "Protection of Land Use as Religious Exercise" (2) is this:

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. (3)

The statute goes on to provide: "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." (4)

Why did Congress provide such extraordinary protection to religious institutions in the context of local zoning decisions? According to Senators Hatch and Kennedy:

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. (5)

Often, the statement continued, "discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or 'not consistent with the city's land use plan." (6)

The enactment of RLUIPA has led to an explosion of litigation and a growing body of judicial decisions interpreting RLUIPA, as religious institutions throughout the nation have challenged (and continue to challenge) local zoning restrictions. (7) The key issue--as to which courts are divided--is the question of the what constitutes a "substantial burden on ... religious exercise," within the meaning of the statute. The U.S. Court of Appeals for the 11th Circuit has recently contributed to this judicial debate through its decision in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).

To fully understand the significance of RLUIPA, it is appropriate to begin by addressing the question of why this statute was necessary. Why is the statutory standard of "strict scrutiny" not redundant in light of the Free Exercise Clause of the First Amendment to the U.S. Constitution?

Constitutional Background

From 1963 to 1990, strict scrutiny was indeed the standard utilized by the courts in assessing the constitutionality of governmental actions which substantially burdened the free exercise of religion. (8) In 1990, however, in the case of Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), a majority of the Supreme Court ruled that strict scrutiny was not the appropriate test to be used in evaluating a Free Exercise Clause challenge to "a neutral, generally applicable law." (9) Thus, a claim that one is constitutionally entitled to be exempted, on religious grounds, from having to comply with a "neutral, generally applicable" law unless the government can show a compelling reason for not allowing the exemption is, after the Smith decision, no longer a valid claim; such a claim will, in fact, simply fail, as a matter of constitutional law.

Smith made clear, however, that a Free Exercise Clause claim will trigger the exercise of strict scrutiny if either the government targets a religious practice, i.e., "if it [seeks] to ban such acts or abstentions only when they are engaged in for religious reasons;" (10) or if the government refuses to grant an exemption to one who seeks it on religious grounds, in the context of a governmental program "where the state has in place a system of individual exemptions." (11)

In 1993, Congress reacted to the Smith decision by enacting the Religious Freedom Restoration Act (RFRA), whose core directive was that government in this country "shall not substantially burden religious exercise even if the burden results from a rule of general applicability," unless (in essence) the government's justification for so doing could survive strict scrutiny. (12) But in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled that Congress, which had relied on [section]5 of the 14th Amendment (which gives Congress the "power to enforce" the other provisions of that amendment (13)) in enacting RFRA, had exceeded its [section]5 power in this instance. For the majority, Justice Kennedy explained that "[l]egislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the clause. Congress ... has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation." (14)

Present Viability of Constitutional Challenge

* Free Exercise Clause

A Free Exercise challenge can still be brought against a zoning decision today, RLUIPA notwithstanding, but does such a constitutional claim have any chance of succeeding? If the zoning ordinance in question is seen by the court as a neutral law of general applicability, then the answer should be no. In Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), for example, the court found the zoning ordinance to be neutral and generally applicable, despite its specific exclusion of "churches" from certain zones, because the ordinance "includes 'church' as just one among many and varied religious and nonreligious regulated uses." (15)

The answer is yes, however, in two instances. The first such instance is where a court is persuaded that a zoning law fits into the "individualized exemption" concept, and that the denial of an exemption imposes a "substantial burden" on the religious entity. (16) Some courts have found the "individualized exemption" concept to be applicable in these circumstances, on the ground that a statutory scheme that contemplates the possibility of special use permits, depending on the circumstances, is necessarily one that allows for individualized assessments. (17)

But few courts have found that the refusal to allow a church, for example, to exist in a particular location amounts to the requisite "substantial burden" on the practice of religion that is necessary to trigger the use of strict scrutiny in a Free Exercise Clause analysis. In fact, this author is aware of only one reported judicial decision that explicitly embodied such reasoning. (18) In Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002), a federal district court entered a preliminary injunction in favor of a church which, because of its large and growing membership, sought to build a new facility on land not zoned for religious use. In finding the requisite "substantial burden" on religious practice, the court said that "[p]reventing a church from building a worship site fundamentally

inhibits its ability to practice its religion." (19)

This reasoning, however, has essentially been rejected by virtually every other court that has considered the issue. (20) The prevailing (and, in this author's opinion, better) view is that generally there is no connection between adhering to the dictates of one's religion and worshiping collectively in a particular geographic location; thus, the freedom to practice one's religion is not meaningfully impaired by a governmental act making particular real property unavailable for that purpose. Long ago the Supreme Court made it clear that government does not violate the Free Exercise Clause when it simply makes the practice of religion "more expensive" that it would otherwise be, (21) and, more recently, that no heightened judicial scrutiny is called for with respect to "government programs which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs." (22) Those characterizations are apt, in the present context. As one court has said: "Regulation of the location of church construction is not an impediment to religious observation in the sense of a prohibition." (23)

The second instance in which a Free Exercise violation will be found is where the zoning decision was the product of intentional discrimination against a religious institution. (24) In essence, that was found to be so in the Midrash Sephardi case, where the Surfside zoning ordinance excluded churches and synagogues from locations in Surfside's business district where private clubs and lodges were permitted. The 11th Circuit held that the ordinance violated both the "equal terms" provision of RLUIPA and, because it was neither "neutral" nor "generally applicable," the Free Exercise Clause as well. Applying strict scrutiny, the court concluded that the ordinance was both overinclusive and underinclusive with respect to Surfside's objectives of promoting retail activity and synergy because the synagogues contribute to the retail and commercial activity of the business district.... [and] Surfside provides no evidence that private clubs and lodges actually contribute to the business district in a way appreciably different than religious institutions. (25)

A Free Exercise Clause challenge to the enforcement of an exclusionary zoning law, therefore, is not likely to succeed unless the law discriminates against religious entities.

* Equal Protection

Might a religious institution succeed in challenging a zoning restriction under the Equal Protection Clause? Possibly, but not likely. The Supreme Court has recently reiterated its previously stated position that, in the absence of a Free Exercise Clause violation, an equal protection claim that asserts discrimination on the basis of religion will be subjected to only minimal judicial scrutiny. (26) Thus, a challenger whose free exercise of religion has not been substantially burdened by the zoning law at issue should not gain the benefit of strict scrutiny by adding an equal protection claim.

The question, then, is whether a zoning ordinance discriminates so indefensibly against religious entities that it violates the Equal Protection Clause even under minimal judicial scrutiny. At least two federal courts have found that to be so (or at least potentially so), when the zoning ordinance at issue treated religious institutions differently from other uses of land that appeared to be just as likely to give rise to the problems that ostensibly justified the exclusion of the church from the neighborhood. (27) A municipality would be well-advised, therefore, to avoid treating religious uses of land differently from other uses that differ only by virtue of their not being religious. However, a zoning law that excludes churches along with other entities (such as theaters or fraternal lodges) that are likely to increase traffic or parking problems, to list two of the more typical bases for such exclusions, is likely to survive minimal scrutiny. (28)

* Freedom of Speech

Constitutional challenges to zoning decisions of this kind have also been based, on occasion, on the far-from-intuitively-obvious contention that an exclusion of religious uses amounts to a prohibition of religious speech, in violation of the Free Speech Clause of the First Amendment. In each of the reported decisions known to this author in which such a claim was considered, the zoning ordinance was viewed, explicitly (29) or implicitly, (30) as a content-neutral regulation of speech to be evaluated by the use of intermediate judicial scrutiny. While one of these courts brushed off the free speech claim fairly quickly and conclusorily, (31) the claim was taken quite seriously in two other cases. In one, an appellate court set aside a grant of summary judgment for the city, requiring factual support for the city's position that the presence of a church would have harmful effects "on economic vitality in the central business district." (32) In the other, the court found a violation of the church's right to freedom of speech, due to a lack of the requisite "narrow tailoring," based on the underinclusiveness (with respect to every one of the city's stated interests) of the city's exclusion of churches alone from the city's "office district." (33)

In sum, it remains possible for a zoning ordinance to be vulnerable to a constitutional challenge by virtue of its treatment of religious uses of land, but, if the ordinance does not single out such religious uses alone for exclusion from particular zones, it will likely withstand such a challenge. That leads us to RLUIPA.

RLUIPA: Key Issues in its Application

* "Substantial Burden"

As noted above, the key provision of [section]2 of the statute is the requirement that government must satisfy strict scrutiny when it imposes a land use regulation "that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution." (34) Significantly, the statute goes on to define the phrase "religious exercise" as follows:

Religious exercise is defined as follows:

(A) The term "religious exercise" includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

(B) The use, building or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise.... (35)

Thus, by defining "religious exercise" so broadly, the statute, on its face, appears to have the important effect of making the threshold requirement of a "substantial burden" much easier to satisfy under RLUIPA than it is under the Free Exercise Clause. This understanding of the statute is shared by some of the federal courts that have had the opportunity to apply RLUIPA, who have found, accordingly, that a refusal to allow a religious use of land in a particular location did amount to a "substantial burden" on "religious exercise," (36) despite the assertion made by Senators Hatch and Kennedy that "[t]he term 'substantial burden' as used in this Act is not intended to be given any broader interpretation than the Supreme Court's articulation of the concept of substantial burden on religious exercise." (37)

Thus, in the words of one federal district court:

Although RLUIPA's legislative history suggests that "substantial burden" should be interpreted as it has been in prior case law, ... [i]t is the Act's explicit redefinition of "religious exercise" that effects a manifest change in the analysis. Because use of land is "religious exercise" under RLUIPA, there can be no doubt that the City's action denying use of the Subject Property is a "substantial burden" on that use. (38)

But other courts--including the 11th Circuit, in the Midrash Sephardi case--have taken a very different view of the meaning of the statutory term "substantial burden," which is not defined in the act. The legislative history led Judge Bauer of the Seventh Circuit to conclude, in essence, that the statutory language cannot properly be interpreted so as to apply to every denial of a request by a religious institution for a zoning variance. He explained:

Application of the substantial burden provision to a regulation inhibiting or constraining any religious exercise, including the use of property for religious purposes, would render meaningless the word "substantial," because the slightest obstacle to religious exercise incidental to the regulation of land use--however minor the burden it were to impose--could then constitute a burden sufficient to trigger RLUIPA's requirement that the regulation advance a compelling governmental interest by the least restrictive means. We therefore hold that, [under RLUIPA], a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct ... responsibility for rendering religious exercise--including the use of real property for the purpose thereof ... --effectively impracticable. (39)

The court went on to reject the plaintiffs' "scarcity of available land" argument, noting that each of the five plaintiff churches "has successfully located within Chicago's city limits." (40)

In the Midrash Sephardi decision, Judge Wilson explicitly declined to adopt the Seventh Circuit's definition of "substantial burden," adopting in its stead the somewhat cryptic conclusion that "a 'substantial burden' is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly." (41) Exactly what that means, in the context of municipal denials of special use permits, is unclear to this writer. What is clear is that the court found no substantial burden in this case, in which the affected Orthodox congregations argued that the zoning restrictions had the effect of requiring their members to walk a greater distance to reach their synagogues, with the possible ultimate result that some would stop attending services altogether. The court concluded that "the burden of walking a few extra blocks ... is not 'substantial' within the meaning of RLUIPA." (42)

If additional federal appellate courts adopt similarly narrow interpretations of RLUIPA's key "substantial burden" provision, or if the Supreme Court ultimately does so, it will be difficult to perceive any significant contribution made by the land use section of the statute.

* Can a Zoning Restriction Survive Strict Scrutiny?

Based on the few reported RLUIPA decisions that have applied the test of strict scrutiny, along with the handful of related Free Exercise Clause cases that have done so, one may conclude that, when the standard is taken seriously, the government is unlikely to prevail. (43) Because, interestingly, some zoning ordinances tend to exclude religious uses from residential areas while others exclude them from business districts, and because different government interests tend to arise in those two very different situations, it is helpful to analyze the "business district" cases separately from the "residential area" cases.

When a city chooses to exclude religious institutions from a commercial district, its reasons tend to be one or more of the following: encouraging commerce, generating additional tax revenues (since churches tend to be tax-exempt), and eliminating urban blight. Might any of those interests rise to the level of a "compelling" government interest?

The "tax revenue" interest has, thus far, been deemed "important" by one court (44) but rejected as insufficient by two others, (45) with one court noting that

[t]he maintenance of property tax revenue is a potentially pretextual basis for decision-making that appears to have been a specific target of RLUIPA.... Indeed, if a city's interest in maintaining property tax levels constituted a compelling governmental interest, the most significant provision of RLUIPA would be largely moot, as a decision to deny a religious assembly use of land would almost always be justifiable on that basis. (46)

The "commerce" interest has served as the basis for one court's conclusory holding that strict scrutiny was satisfied, (47) and was deemed an "important goal" by another court. (48) Finally, the "blight" interest has been rejected by one court, (49) but treated as a potentially compelling interest, for purposes of continuing the analysis, by another. (50)

Even when a court has found (or assumed) a sufficiently important government interest, however, it was likely to find that the zoning ordinance, as applied to the challenger, did not advance the municipality's interest in the least restrictive manner. (51)

When a religious institution is excluded from a residential district, on the other hand, the stated governmental interest tends to be a desire to minimize one or more of the following undesirable phenomena: traffic, congestion, parking problems, and noise. Can any of those interests credibly be described as "compelling," as the statute requires? One might reasonably conclude that they are not, (52) but courts have at times displayed a tendency to accept, as "compelling," government interests that have been articulated at a very high level of generality (such as "health and safety"). (53) At a more appropriate level of specificity, it is certainly possible for a court to credibly invoke an interest in "safety" (undoubtedly a compelling interest) as the underlying reason for concern about an increase in vehicular traffic in a residential neighborhood, as the court did in Murphy v. Zoning Comm'n of Town of New Milford, 148 F. Supp. 2d 173, 190 (D. Conn. 2001). The court went on to hold, however, that the zoning commission's response (which focused on the number of persons in attendance at the prayer meetings, rather than the number of vehicles in which they arrived) did not address the problem in the least restrictive manner, and therefore violated RLUIPA. (54) Conceivably, however, a municipality might succeed in crafting an appropriately tailored zoning regulation based upon the "safety" rationale.

A municipality should fare even better if the court utilizes--under RLUIPA--the approach to "strict scrutiny" taken by the U.S. Court of Appeals for the 11th Circuit over 20 years ago in the case of Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983). (55) That pre-Smith, pre-RLUIPA case involved the holding of religious services, on a regular basis, in a private residence in an area not zoned for such activity. The court rejected the homeowners' Free Exercise claim, reaching that result through a balancing of interests that (as this writer sees it) completely ignored 1) the need to find a "substantial burden" on the free exercise of religion, as a threshold requirement, and 2) the need to identify a compelling government interest in order to uphold the zoning regulation. Thus, the court ruled for the city without ever asking whether any of the city's interests--fleetingly identified via a reference to "noise and disturbance" (56)--were "compelling." The Grosz approach has already been followed in a RLUIPA case which was, on its facts, a virtual reincarnation of Grosz. (57)

In sum, the potency of RLUIPA will be seriously undermined if courts employ a restrictive interpretation of the "substantial burden" requirement, or if they allow the statute's strict scrutiny test to be satisfied by a less demanding balancing test.

Is RLUIPA Constitutional?

The reader may well wonder: If RFRA was struck down as exceeding Congress' power, then how can RLUIPA be constitutional? The answer is that Congress sought to cure the infirmity of the prior statute by specifying that the protections of RLUIPA apply only if

(a) the substantial burden is imposed in a program or activity that receives federal financial assistance, (b) the substantial burden affects, or removal of that substantial burden would affect, commerce ... among the several States, or (c) the substantial burden is imposed in the implementation of a ... system of land use regulations, under which a government makes, or has in place ... procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. (58)

Congress thus sought to take advantage of three separate constitutional sources of power: 1) its spending power, which would seem to have little applicability to local land use regulations, but which has served as a basis for the part of RLUIPA dealing with the rights of institutionalized persons; (59) 2) its commerce power; and 3) its power, under 5 of the 14th Amendment, to enforce the Free Exercise Clause, with respect to the "individualized assessments" concept recognized by the Supreme Court in the Smith decision.

Municipalities defending themselves against RLUIPA claims have routinely challenged the constitutionality of the statute, typically arguing both that Congress lacked power to enact RLUIPA and that RLUIPA violates the Establishment Clause.

* Congressional Power to Enact RLUIPA

At least a few courts--including the 11th Circuit in the Midrash Sephardi case (60)--have held that, in the words of one court, "zoning ordinances must by their nature impose individual assessment regimes, (61) and that RLUIPA is a constitutional exercise of Congressional power because "[w]hat Congress has done ... is to codify the individualized assessments jurisprudence in Free Exercise cases that originated with the Supreme Court's decision in Sherbert v. Verner." (62)

One federal district court has disagreed, persuasively taking the position that, because RLUIPA expands the meaning of "substantial burden on religious exercise" beyond the meaning given to that concept by prior Free Exercise Clause decisions, RLUIPA cannot be viewed as a codification of the Supreme Court's Free Exercise Clause jurisprudence. (63) Thus, the court went on to say, "Congress has effectively redefined the First Amendment rights it is purporting to enforce," (64) thereby exceeding its powers under [section]5 of the 14th Amendment. But, as has already been noted, the 11th Circuit--which interpreted RLUIPA as expanding the "substantial burden" threshold to only a modest degree--apparently perceived no such constitutional problem.

It may not matter whether RLUIPA represents a proper exercise of Congress' power under 5 of the 14th Amendment, however, because, in each of the few reported judicial decisions in which the point has been considered, Congress' power to enact RLUIPA as a means of regulating interstate commerce has been upheld. (65) These courts have apparently had no difficulty perceiving potential interstate economic effects flowing from the establishment of a church or a religious school in a particular location, and their rulings have drawn additional support from the fact that the interstate-commerce link, in order to be operative, is a jurisdictional element to be pled, and established, in individual RLUIPA actions. (66)

* Does RLUIPA Violate the Establishment Clause?

The argument has been made repeatedly that RLUIPA violates the Establishment Clause because it has the "primary effect" of advancing religion, (67) by bestowing rights upon religious institutions (and religious prisoners) that are not bestowed upon similarly situated nonreligious actors. Most of the courts that have considered the Establishment Clause argument in RLUIPA "prisoner" cases have rejected it, (68) finding that Congress, through RLUIPA, "has simply lifted government burdens on religious exercise," (69) which government may do--at least sometimes--without violating the Establishment Clause. (70) One court of appeals has ruled to the contrary, however, concluding that RLUIPA "does not lift any burden on the exercise of religion" (71) and thus cannot properly be viewed as a neutral accommodation of religious interests. However, in the few reported RLUIPA "land use" cases in which the Establishment Clause argument has been considered, including the Midrash Sephardi decision, (72) it has been uniformly rejected. (73)

Unless the Supreme Court steps in and rules to the contrary, then, RLUIPA must be regarded, in the 11th Circuit, as a constitutional enactment. The Midrash Sephardi decision has limited the potential impact of RLUIPA, with respect to the key "substantial burden" issue, but the extent of that limitation, along with the outcomes to which strict scrutiny will lead in these cases, remain unclear as of now.

(1) 42 U.S.C. [section]2000cc et seq. (2003).

(2) Another [section]3 of the Act, entitled "Protection of Religious Exercise of Institutionalized Persons," extends similar protection to institutionalized persons. 42 U.S.C. [section] 2000cc-1(a).

(3) 42 U.S.C. [section]2000cc(a)(1).

(4) 42 U.S.C. [section]2000cc(b)(1) (the "equal terms" provision).

(5) Joint Statement of Senator Hatch and Senator Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000, 146 Cong. Rec. S7774 (July 27, 2000).

(6) Id.

(7) This article contains citations only to reported judicial decisions, and--due to space limitations--not even all reported decisions are cited herein. For a continually updated description of many unreported RLUIPA decisions, cases not yet resolved, and appeals in progress, go to www.rluipa.com.

(8) See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

(9) Smith, 494 U.S. at 881.

(10) See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 1993).

(11) Smith, 494 U.S. at 884.

(12) 42 U.S.C. [section]2000bb-1 (2003).

(13) The Due Process Clause of the 14th Amendment has been deemed to "incorporate" most of the provisions of the first eight Amendments, including the Free Exercise Clause. Thus, the argument for RFRA's validity was that Congress was thereby enforcing the Free Exercise Clause.

(14) Flores, 521 U.S. at 519. Lower courts have understood the Court's ruling to be limited to invalidating the statute only to the extent that it applied to state and local governmental actions. See, e.g., Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002). Thus, RFRA survives as a limitation on federal regulations that place substantial burdens on religious practices.

(15) Civil Liberties for Urban Believers, 342 F.3d at 763. See also Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991).

(16) See, e.g., Keeler v. Mayor & City Council of Cumberland, 940 F. Supp. 879, 884-86 (D. Md. 1996).

(17) Hale O Kaula Church v. Maui Planning Commission, 229 F. Supp. 2d 1056, 1073 (D. Haw. 2002); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1222-24 (C.D. Cal. 2002). See also Midrash Sephardi, 366 F.3d 1214. But see San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1032 (9th Cir. 2004); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 764 (7th Cir. 2003).

(18) But see Alpine Christian Fellowship v. County Comm'rs of Pitkin County, 870 F. Supp. 991, 994 (D. Colo. 1994); Western Presbyterian Church v. Bd. of Zoning Adjustment of District of Columbia, 862 F. Supp. 538, 545-46 (D.D.C. 1994).

(19) Cottonwood Christian Center, 218 F. Supp. 2d at 1226-27.

(20) See, e.g., Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990);Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 825 (10th Cir. 1988); Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303,307 (6th Cir. 1983); Konikov v. Orange County, 302 F. Supp. 2d 1328, 1342 (M.D. Fla. 2004).

(21) Braunfeld v Brown, 366 U.S. 599,605 (1961).

(22) Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450 (1988).

(23) Messiah Baptist Church, 859 F.2d at 825.

(24) See, e.g., Islamic Center of Mississippi, Inc. v. City of Starkville, Miss., 840 F.2d 293 (5th Cir. 1988); Cottonwood Christian Center, 218 F. Supp. 2d 1203.

(25) Midrash Sephardi, 366 F.3d at 1233-34.

(26) Locke v. Davey, 124 S.Ct. 1307, 1313 n.3 (2004).

(27) Cornerstone Bible Church, 948 F.2d at 471; Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F. Supp. 2d 961, 978-79 (N.D. Ill. 2003). See also Congregation Kol Ami v. Abington Township, 309 F.3d 120 (3d Cir. 2002).

(28) See, e.g., Christian Gospel Church, 896 F.2d 1225-26; Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186, 1207 (D. Wyo. 2002); see also Konikov, 302 F. Supp. 2d at 1347-51.

(29) See, e.g., San Jose Christian College, 360 F.3d at 1033.

(30) Civil Liberties for Urban Believers, 342 F.3d at 765.

(31) Id.

(32) Cornerstone Bible Church, 948 F.2d at 468-69.

(33) Vineyard Christian Fellowship, 250 F. Supp. 2d at 983.

(34) 42 U.S.C. [section]2000cc(a)(1) (emphasis added).

(35) 42 U.S.C. [section]2000cc-5(7)(A) and (B).

(36) Elsinore Christian Center v. City of Lake Elsinore, 270 F. Supp. 2d 1163,116970 (C.D. Cal. 2003); Murphy v. Zoning Comm'n of Town of New Milford, 148 F. Supp. 2d 173, 188-89 (D. Conn. 2001); see also Cottonwood Christian Center, 218 F. Supp. 2d at 1226-27, and Westchester Day School v. Village of Mamaroneck, 280 F. Supp. 2d 230,239-40 (S.D.N.Y. 2003) (finding a religious school to come within the definition of "religious exercise").

(37) Hatch-Kennedy Statement, supra note 5, at 7776.

(33) Elsinore Christian Center, 270 F. Supp. 2d at 1170.

(39) Civil Liberties for Urban Believers, 342 F.3d at 761. Accord, San Jose Christian College, 360 F.3d at 1035; Grace United Methodist Church, 235 F. Supp. 2d at 1197.

(40) Civil Liberties for Urban Believers, 342 F.3d at 761.

(41) Midrash Sephardi, 366 F.3d at 1227.

(42) Id. at 1228.

(43) See, e.g., Westchester Day School, 280 F. Supp. 2d at 242; Cottonwood Christian Center, 218 F. Supp. 2d 1203; Alpine Christian Fellowship, 870 F. Supp. 991; but see Int'l Church of Foursquare Gospel v. City of Chicago Heights, 955 F. Supp. 878 (N.D. Ill. 1996).

(44) Vineyard Christian Fellowship, 250 F. Supp. 2d at 977.

(45) Elsinore Christian Center, 270 F. Supp. 2d at 1172-73; Cottonwood Christian Center, 218 F. Supp. 2d at 1228.

(46) Elsinore Christian Center, 270 F. Supp. 2d at 1172-73.

(47) Int'l Church of Foursquare Gospel, 955 F. Supp. at 881.

(48) Vineyard Christian Fellowship, 250 F. Supp. 2d at 977.

(49) Cottonwood Christian Center, 218 F. Supp. 2d at 1228.

(50) Elsinore Christian Center, 270 F. Supp. 2d at 1174.

(51) Id. at 1174-75; Vineyard Christian Fellowship, 250 F. Supp. 2d at 977-78.

(52) See Westchester Day School, 280 F. Supp. 2d at 242 ("traffic concerns have never been deemed compelling government interests"); Love Church v. City of Evanston, 671 F. Supp. 515, 519 (N.D. Ill. 1987).

(53) Murphy, 148 F. Supp. 2d at 189. See also Konikov, 302 F. Supp. 2d at 1343.

(54) Murphy, 148 F. Supp. 2d at 190-91.

(55) See also Christian Gospel Church, 896 F.2d at 1224-25.

(56) Grosz, 721 F.2d at 738.

(57) Konikov, 302 F. Supp. 2d at 1341-43. The continued vitality of Grosz in the 11th Circuit is further indicated by the decision in First Assembly of God of Naples, Fla., Inc. v. Collier County, 20 F.3d 419 (11th Cir. 1994).

(58) 42 U.S.C. [section]2000cc(a)(2) (2003).

(59) See, e.g., Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003).

(60) Midrash Sephardi, 366 F.3d at 1225.

(61) Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F. Supp. 2d 857, 868 (E.D. Pa. 2002).

(62) Id. Accord, US. v. Maui County, 298 F. Supp. 2d 1010, 1016-17 (D. Haw. 2003); Westchester Day School, 280 F. Supp. 2d at 236-37.

(63) Elsinore Christian Center, 270 F. Supp. 2d at 1177.

(64) Id. at 1181-82.

(65) Westchester Day School, 280 F. Supp. 2d at 237-38; Hale O Kaula Church, 229 F. Supp. 2d at 1072; Freedom Baptist Church, 204 F. Supp. 2d at 866-68.

(66) Westchester Day School, 280 F. Supp. 2d at 238; Hale O Kaula Church, 229 F. Supp. 2d at 1072.

(67) See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

(68) See, e.g., Madison v. Riter, 355 F.3d 310 (4th Cir. 2003).

(69) Id. at 318.

(70) These rulings rely on Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).

(71) Cutter v. Wilkinson, 349 F.3d 257,267 (6th Cir. 2003), cert. granted, 2004 WL 843727.

(72) Midrash Sephardi, 366 F.3d at 1240-42.

(73) US. v. Maui County, 298 F. Supp. 2d at 1014-15; Westchester Day School, 280 F. Supp. 2d at 238; Freedom Baptist Church, 204 F. Supp. 2d at 863-65.

Marc Rohr is a professor of law at Shepard Broad Law Center, Nova Southeastern University. He received a B.A. in 1968 from Columbia University and a J.D. in 1971 from Harvard University. Professor Rohr has been at NSU since 1976 and teaches constitutional law, copyright and trademark, and civil procedure.