Evan recently wrote the article “Finding Salvation in Religious Law’s Safe Harbor; Municipal Governments Can Take Steps to Mitigate RLUIPA Claims,” published in the March 23, 2015 edition of the Connecticut Law Tribune. The article discusses an infrequently used provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) – known as the “safe harbor” provision – that allows local governments to take corrective action to “avoid the preemptive force” of the statute:

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

While the plain language of this provision appears to limit it to substantial burden claims, the courts have found that it applies to all types of RLUIPA claims. It is surprising that there are only a handful of decision that reference the safe harbor provision or discuss corrective action that some local governments have taken in an attempt to mitigate liability under the statute.

The article explores several ways in which local governments may wish to utilize the safe harbor provision if slapped (or threatened to be slapped) with a RLUIPA suit. Municipal lawyers, officials, and all other RLUIPA stakeholders can access the article by clicking the hyperlink above.