February 13, 2023

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The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)¹ was enacted to combat widespread discrimination against individuals and institutions seeking to use land for religious purposes. During the time immediately preceding RLUIPA’s enactment, Congress found that zoning ordinances often excluded churches from meeting in places where large groups of people assemble for secular purposes.² And with the Supreme Court’s 1997 invalidation of the application of the Religious Freedom Restoration Act³ to state and local government actors,⁴ Congress found it more important than ever to protect the free exercise of religion in land use cases.  

Unfortunately, discriminatory zoning codes are still a reality today. One such reality involves religious individuals or organizations seeking to use property for transitional homes, women’s shelters, or places of respite. These uses may be religious, but to bring the organization within RLUIPA’s protection, the organization must demonstrate its eligibility. Without a clear characterization as a place of worship, institution sponsored by a place of worship, or institution affiliated with a place of worship, RLUIPA may not clearly protect an institution. This whitepaper will seek to educate individuals and organizations on best practices — in operations, documentation, and beyond — to qualify for RLUIPA protections.  

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RLUIPA’s Requirements

RLUIPA’s text reads, in relevant part:  

"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."⁵  

As a general matter, this text can be broken down into four parts:  

        (1) whether the challenged ordinance is a land use regulation;  

        (2) whether the challenging entity is a religious assembly or institution;  

        (3) whether there is a religious exercise; and  

        (4) whether the enactment or implementation of the challenged ordinance(s) results in substantial burden⁶ or discrimination and exclusion of the challenger’s religious exercise.⁷  

This second part of a ‘religious assembly or institution’ is often overlooked because most precedent for RLUIPA cases comes from litigation brought by places of worship such as churches, synagogues, and mosques. But Congress did not intend for RLUIPA to protect only churches. Indeed, the term ‘religious exercise’ comes with a broad definition to “include[ ] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”⁸ Congress gave a similarly broad explanation for the application of religious exercise to land use:  

"The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose."⁹  

If this seems circular, then you are not alone. Essentially, if an individual or organization believes it is using land or property for religious purposes, then it is engaged in religious exercise involving land use. With these broad definitions, the third part of religious exercise or use is not generally in question. The question then (possibly) centers on whether an organization is an assembly or institution. At the same time, many situations are not this black and white, and in close-call situations concerning what falls under a religious assembly or institution, courts tend to examine all the facts with a particular emphasis on facts that point to a property’s religious nature.  

That question is very fact-intensive because Congress did not define ‘assembly’ or ‘institution.’ Two federal appellate courts defined these terms according to their ordinary meaning,¹⁰ and no other federal appellate courts — including the Supreme Court of the United States — have defined the terms differently. These definitions are broad and favor religious organizations. For example, one federal appellate judge cites Black’s Law, a well-known legal dictionary, to define assembly as “[a] group of persons organized and united for some purpose.”¹¹ And more than an implication that assembly and institution are broadly defined, RLUIPA’s rules of construction state that it “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”¹²  

With that, it may prove valuable to look at what courts consider in evaluating RLUIPA claims for religious exercise and religious assemblies and institutions.  

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Factors Considered in RLUIPA Analyses

Again, most challenges under RLUIPA overlook whether an organization is a religious assembly or institution because the plaintiff is a house of worship. Even so, situations that are a ‘close-call’ with respect to whether an organization is a religious assembly or institution are very fact-intensive. This means courts will examine the particular facts of a case to determine if a religious organization qualifies as an assembly or institution under RLUIPA. While ‘assemblies or institutions’ are broadly defined, these fact-intensive inquiries emphasize the religious nature of the institution — such as examining an organization’s religious leadership and activities to determine whether it qualifies for RLUIPA’s protections.  

By way of example, here are three recent RLUIPA cases:  

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1. Bikur Cholim Incorporated v. Village of Suffern¹³

Bikur Cholim Incorporated is a nonprofit corporation with the mission of accommodating Jewish families visiting the sick.¹⁴ Bikur cholim is a Jewish commandment to visit the sick, and Bikur Cholim Incorporated set up a “Shabbos House” to provide overnight accommodation for those unable to travel on the Sabbath to visit patients at a hospital.¹⁵ In any event, the Shabbos House was issued a notice of violation for not complying with its certificate of occupancy — a certificate issued for a single-family dwelling.¹⁶ Bikur Cholim Inc. applied for a variance and was denied, at which point it filed suit under RLUIPA.¹⁷  

In examining the religious exercise of the Shabbos House, the Court found that Rabbi Simon Lauber — the Founder and Executive Director of Bikur Cholim Inc. — was motivated by religious obligation.¹⁸ Specifically, the Court credited Rabbi Lauber’s testimony that he believes it is his religious duty to help the sick and their family, and that running the Shabbos House is Rabbi Lauber’s way of exercising of that duty.¹⁹  

In this case, we see a court examining a religious property owned by a corporation and focusing on:  

        (1) the actual religious practices;  

        (2) religious leaders operating the property; and  

        (3) the testimony of those running the property.  

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2. City Walk – Urban Mission Incorporated v. Wakulla County²⁰  

City Walk – Urban Mission (“City Walk”) is a church that operates a transitional home for registered sex offenders to live out City Walk’s motto — “Every saint has a past [and] [e]very sinner has a future” — and serve the most shunned in society.²¹ Upon learning that there were registered sex offenders in the property, neighbors grew enraged and eventually the Wakulla County Board of Commissioners amended their property code so that City Walk’s transitional home no longer complied.²² City Walk filed suit under RLUIPA.²³  

In examining the religious exercise of the transitional home, the Court looked at Plaintiff’s testimony and mission statement.²⁴ The Court noted that City Walk served roughly eighty men at the property, that its stated purpose and mission were consistent with the land use, and that its commitment to service reflected the basis tenants of Christian faith.²⁵  

In this case, we see a court examining a religious property owned by a church and focusing on:  

        (1) the testimony of those running the property;  

        (2) the mission statement of the organization;  

        (3) past use of the property;  

        (4) consistency of the stated purpose and mission with property use; and  

        (5) an examination of the actual religious faith.  

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3. Moore-King v. County of Chesterfield²⁶

Plaintiff Moore-King was a self-described spiritual counselor working under the name “Psychic Sophie.”²⁷ She provided various services, such as Tarot card readings and other psychic services for a fee per service.²⁸ Psychic Sophie received a phone call from the local county informing her she needed to obtain a business license.²⁹ Psychic Sophie sought to label herself as a religious individual performing religious services.³⁰ The county disagreed and levied a business license tax against Psychic Sophie, at which point she filed suit under, among other things, RLUIPA.³¹  

In examining the religious exercise of Psychic Sophie, the Court looked at her website, where Psychic Sophie stated that she is “very spiritual in nature, yet I do not follow particular religions or practices, and ‘organized’ anythings are not for me.”³² The Court found that plaintiff followed no religion, and “the sheer number and variety of interests that Moore-King invokes cast serious doubts upon her claim to religion.”³³ Additionally, the Court found that plaintiff’s fee-for-service model — although not dispositive — counseled against a finding of religious exercise because “[r]eligious experience is not typically thought of as purchased chunks at a time.”³⁴  

In this case, we see a court examining a religious exercise claim and focusing on:  

        (1) evidence of the lack of religion;  

        (2) similar but nevertheless distinct, the lack of evidence of any particular religion;  

        (3) a hodge-podge of interests pointing to a lack of any religion in particular; and  

        (4) a fee-for-service model.  

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4. Conclusion of Factors  ‍

As evidenced, courts examine various factors to determine religious exercise and religious assembly claims under RLUIPA. When looking to confirm that a property is indeed religious, the above courts seem to look at the actual religion under consideration and its tenets, the testimony of those running the property, and the consistency of those two factors with the actual use of the property. In other words, courts appear to look at the totality of the circumstances.  

On the other hand, when looking to confirm that a practice is not religious, the Moore-King court looked both the presence and lack of documentary evidence as well as behaviors inconsistent with religious practice.  

To be clear, this is not an exhaustive list of factors that courts look at but rather case studies of recent RLUIPA cases involving religious organizations. Put another way: When looking at the above factors, a religious organization should try its best to adhere to positive factors, avoid negative factors, and operate with its religious mission at the forefront. If there is any further doubt, organizations should contact a religious liberty firm or attorney for more specific and in-depth guidance.  

Testimony and adherence to religious use should not be a problem for most, but organizations should be careful to maintain adequate property documentation and ensure that usage does not run afoul of ‘typical’ religious behavior. To that end, here are some best practices to make sure your church organization or extension (e.g., an integrated auxiliary (defined below) as well as conventions or associations of churches) falls under RLUIPA’s protections.  

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Best Practices for RLUIPA Protection  

The best way to qualify for RLUIPA protections is to operate as a nonprofit (501(c)(3)) house or worship or related entity. For the latter, it is ideal to become an ‘integrated auxiliary of a church’ and receive IRS status as such. In order to receive such status, an organization must:  

(1) Be described both as an Internal Revenue Code section 501(c)(3) organization and be a public charity under Code section 509(a)(1), (2), or (3);  

(2) Be affiliated with a church or convention or association of churches; and  

(3) Receive financial support primarily from internal church sources as opposed to public or governmental sources.³⁵

Yet there may be many reasons that a property operates separate from a formally religious entity. Maybe the reasons are to separate from church politics or be independent of church funding decisions. Perhaps with individuals from multiple churches maintain the property as an independent extension, or the property operates through an individual’s efforts. Whatever the reason for disfavoring church or integrated auxiliary status, religious organizations need to make sure not to suffer pitfalls because of their corporate and tax documents.  

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1. Bylaws and Articles of Incorporation  

Many religion organizations want to stress their educational and charitable nature, to the point that they only emphasize these points in their bylaws and articles of incorporation. Because RLUIPA inquiries are so fact-intensive here, it may not be enough to mention a faith-based mission somewhere later in the document if the purpose section does not stress a religious purpose alongside any charitable and educational ones. Like the Moore-King case above, activities should not be so many and so broad as to allow courts to infer an organization is not religious, so beware of focusing exclusively or primarily on educational and charitable purposes.

Make sure corporate documents are consistent and reflect the religious designation wherever possible so that there are no questions. The property of the corporation should also be irrevocably dedicated to its religious purposes (along with the charitable and educational purposes). More information about establishing religious identity is available in the All Access resources linked in the ‘Resources’ section below.  

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2. IRS Documents  

Similarly, IRS Form 1023 requires an organization to state where organizing documents meet 501(c)(3) requirements (e.g., charitable, religious, educational, or scientific purposes). Make sure the references point to portions of the document that state religious purposes, and, by the same token, make sure to list all the religious purpose references into the relevant portions of an IRS Form 1023.  

A Form 1023 also contains a page to detail past, present, and planned activities. This page should align the purpose and mission statement with actual activities. There should be particular emphasis on any religious activities (particularly prayer and worship) especially if the property will not always be operated with religious purposes (e.g., a shelter for domestic violence victims which spends 25% of its time in religious and activities but spends the rest of its time on recovery counseling, life skills coaching, transitional skills, and so on.).  

Entities should also avoid activities that bring it outside the scope of 501(c)(3), such as participating in political campaigns, contributing to political campaign funds, or making public statements in favor of or in opposition to any candidate for public office.³⁶

More information about acquiring and maintaining exempt status is available in the resources linked in the ‘Resources’ section below.

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3. General Best Practices  

In addition, like the Shabbos House case above, having formally religious entities participating in the management, like a pastor or deacon sitting on the board of trustees, is a very helpful factor. And the entity should market itself to the public as religious/denominational, while also being careful to not take any actions that may credit against being religious (e.g., having a fee-for-service model). More information about establishing religious identity is available in the resources linked in the ‘Resources’ section below.

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RLUIPA Conclusion

When President Bill Clinton signed RLUIPA into law in 2000, he stated, “[r]eligious liberty is a constitutional value of the highest order, and the Framers of the Constitution included protection for the free exercise of religion in the very first Amendment. This Act recognizes the importance that free exercise of religion plays in our democratic society.”³⁷ The Supreme Court recently echoed this in its own words in Kennedy v. Bremerton School District: “Respect for religious expressions is indispensable to life in a free and diverse Republic – whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”³⁸ While the Kennedy case focuses on the Establishment Clause, and no RLUIPA zoning case has made it to the Supreme Court, the Kennedy opinion nonetheless reemphasizes RLUIPA’s original purpose and spirit in protecting places of worship from discriminatory ordinances.  

In order to ensure RLUIPA protection, organizations should seek to make sure their documents and activities actively align with their religious purposes and mission. From there, if an entity finds itself facing a possible RLUIPA issue – such as a new zoning ordinance that only affects it or other religious properties – it should consider consulting a religious liberty firm or attorney about options under the statute.  

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Resources:  

Why a Religious Corporation?  

Toolkit Phase I & II

2022 Self-Assessment  

State of the Department of Justice on the Land Use Provisions of RLUIPA with Questions and Answers

Report on the Twentieth Anniversary of the Religious Land Use and Institutionalized Persons Act (RLUIPA)

Robinson + Cole – RLUIPA Defense Blog

Text and Related Provisions of RLUIPA

Legislative History of RLUIPA

IRS Publication 1828, Tax Guide for Churches and Religious Organizations

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Legal Disclaimer: This white paper contains general educational information related to legal concepts, but this information does not constitute legal advice.  Anyone seeking legal advice is strongly encouraged to consult with a licensed attorney regarding any of the matters discussed herein.  Although licensed attorneys work with NLI, NLI is not a law firm and does not undertake legal representation on behalf of any clients.  Further, no licensed attorney working with or on behalf of NLI agrees to undertake legal representation on behalf of any client unless the terms of such representation are set forth in a separate, written representation agreement.

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¹ 42 U.S.C. § 2000cc et seq.

² See H.R. Rep. No. 106-219, 18-24 (199); 146 Cong. Rec. 16698 (2000)(Joint Statement of Senators Hatch and Kennedy).

³ 42 U.S.C. § 2000bb et seq.

⁴ See generally City of Boerne v. Flores, 521 U.S. 507 (1997).

⁵ 42 U.S.C. § 2000cc(a)(1).

⁶ Id. § 2000cc(a). Substantial burden is a fact-intensive inquiry and individual jurisdictions may evaluate differently.  

⁷ Id. § 2000cc(b). The discrimination and exclusion provisions include unequal treatment, religious or denominational discrimination, total exclusion of religious assemblies, and unreasonable limitation of religious assemblies. Individual jurisdictions may evaluate these claims differently.  

⁸ Id. § 2000cc-5(7)(A).

⁹ Id. § 2000cc-5(7)(B).

¹⁰ Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510F.3d 253, 284 n.29 (3d Cir. 2007) (Jordan, J., concurring in part); Midrash Shepardi, Inc. v. Town of Surfside,366 F.3d 1214, 1230 (11th Cir. 2004).

¹¹ Lighthouse Inst., 510 F.3d at 284 n.29 (Jordan, J. concurring in part) (quoting Assembly, Black’s Law Dictionary 111 (7th ed.1999)). While this definition is from 1999, courts should continue to use it going forward because it is the closest Black’s Law predating the enactment of RLUIPA.

¹² 42 U.S.C. § 2000cc-3(g).

¹³ Bikur Cholim Inc. v. Vill. of Suffern, 664 F. Supp. 2d 267(S.D.N.Y. 2009).

¹⁴ Id. at 270–71.

¹⁵ Id. at 271.

¹⁶ Id.

¹⁷ Id. at 272–73.

¹⁸ Id. at 289.

¹⁹ Id. ‍

²⁰ City Walk - Urb. Mission Inc. v. Wakulla Cnty., 471 F. Supp. 3d1268 (N.D. Fla. 2020).

²¹ Id. at 1275.

²² Id.at 1276–77.

²³ Id. at 1279.

²⁴ Id. at 1282.

²⁵ Id. at 1282–83.

²⁶ Moore-King v. Cnty. of Chesterfield, 819 F. Supp. 2d 604 (E.D. Va.2011).

²⁷ Id. at 610.

²⁸ Id. at 610–11.

²⁹ Id. at 611.

³⁰ Id.

³¹ Id. at 611–14.

³² Id. at 622 (emphasis in original).

³³ Id. (“Spirituality, astrology, Reiko, natural healing, meditation, mind-body-soul-spirit-chakra study, metaphysics in general, new age philosophy, psychology, human behavior, quantum physics, ancient history, philosophy, Kabala/Kabbalah, writing, jewelry making, reading (Manly P. Hall, Madame Helena P. Blavatsky, Alice Bailey, and James Hillman are of special appeal), music, music, music!, and creativity in all forms are passions and interests of mine.”

³⁴ Id. at 623.

³⁵ “Integrated Auxiliary of a Church” Defined, IRS, “Integrated Auxiliary of a Church” Defined | Internal Revenue Service (irs.gov) (last visited July 22, 2022).

³⁶ The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations, IRS, The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations | Internal Revenue Service (irs.gov) (last visited July 22, 2022).

³⁷ Presidential Statement on Signing The Religious Land Use and Institutionalized Persons Act of 2000, 36 Comp. pres. Doc. 2168 (Sept. 22, 2000).

³⁸ Kennedy v. Bremerton Sch. Dist., 597 U.S. ___ (2022).