RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases

March 1, 2012

Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), in part to combat such exclusionary land use practices. RLUIPA’s Equal Terms Provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions. Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases. Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants. The allocation of burdens is important because it is generally more difficult for the party charged with the burden of persuasion to succeed at trial. This Note approaches the circuit split by examining RLUIPA’s legislative history and public policy goals, as well as comparing Equal Terms cases with federal exclusionary zoning cases, and with Free Exercise Clause jurisprudence. Ultimately, this Note argues that in light of the above comparisons, as well as RLUIPA’s clear statutory text, the government, not the religious plaintiff, should have the burden of persuasion in Equal Terms cases.

March 2012

No. 4