Academic journal article Boston College Law Review

The Role of Economics in the Discourse on Rluipa and Nondiscrimination in Religious Land Use

Academic journal article Boston College Law Review

The Role of Economics in the Discourse on Rluipa and Nondiscrimination in Religious Land Use

Article excerpt

Introduction

Recent controversies surrounding mosques have brought the legal implications of religious land use to the forefront of public discussion.1 In 2010, President Barack Obama sparked public discussion by affirming the legal right of Muslims to build a mosque near Ground Zero.2 Beyond the legal issues, politicians have drawn on the highly emotional atmosphere and framed the question of mosque location as a political issue.3 Newt Gingrich, for example, has expressed his view that the proposed mosque near Ground Zero represents an Islamic political and cultural offensive aimed at American society.4 Themes of power, control, and self-assertion pervade this debate.5

Likewise, both courts and scholars have framed the conversation regarding the Religious Land Use and Institutionalized Persons Act (RLUIPA)-which, in relevant part, allows religious institutions to circumvent burdensome zoning restrictions-through both legal and political lenses.6 In cases involving religious land use, however, the legal and political lenses are not so clearly distinguishable.7 Rather, the legal analyses of these cases have focused on the policy concerns regarding control over land-use regulations.8 Courts and scholars have divided over the proper application of RLUIPA's provisions in religious landuse cases.9

A law and economics approach, however, can refract the debate on RLUIPA's application.10 Economic principles can guide a more factsensitive application of RLUIPA's provisions.11 Using this approach, courts can better balance competing concerns by weighing them against relevant facts that are specific to each affected community.12 Nevertheless, although the economic approach offers an alternative application of RLUIPA, it too is flawed.13

In Part I, this Note explores the application of and literature on RLUIPA's "Substantial Burden" and "Equal Terms" provisions.14 This Part first describes the background of RLUIPA generally.15 Second, this Part maps courts' disagreements over the application of RLUIPA's provisions in face of competing concerns regarding who-municipalities or religious institutions-should control land-use regulations.16 Third, this Part explores the literature on RLUIPA in light of these competing concerns over control and power.17

Part II recasts the debate through the law and economics lens.18 This Part observes the use of economic concepts in Judge Richard Posner's decisions and dissents.19 This Part argues that the economic approach can guide a more balanced application of RLUIPA's provisions.20 Part III argues that the economic approach to RLUIPA's application is also imperfect, particularly in light of the alternative Equal Protection Clause analysis.21 Additionally, the economic approach to RLUIPA's application raises new tensions which do not exist in the power and control framework.22

I. RLUIPA and the Division Regarding Control Over Land-Use Regulations

Courts and scholars have divided on the proper application of RLUIPA,23 In particular, courts and scholars have had trouble balancing the competing concerns between municipalities and religious insti12 tutions regarding who should control land-use regulations.24 The resultant division has created uncertainty in the application of RLUIPA.25

In this Part, Section A provides general background on RLUIPA's history.26 Then, Section B discusses how the circuit splits in the application of RLUIPA's various provisions reflect competition for control over land-use regulations.27 Finally, Section C discusses how scholars have framed the issue in terms of power and control, only to exacerbate the division injudicial approaches to applying RLUIPA.28

A. RLUIPA

RLUIPA is the latest chapter in the history of federal legislation protecting religious liberty.29 Several years prior to RLUIPA's enactment, Congress, in 1993, enacted the Religious Freedom Restoration Act (RFRA).30 RFRA provided that a "substantial burden" on religion could only be justified if it was the least restrictive means of furthering a compelling state interest. …

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