President Obama celebrated National Religious Freedom Day (January 16, if any of you missed it) by issuing a proclamation to commemorate the Virginia Statute for Religious Freedom, which was adopted by the state’s General Assembly in 1786, and which became the basis for the Establishment Clause.  President Obama stated in part:

Today, America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals — freedom, equality, justice, and our right as a people to set our own course.

America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.

It is noteworthy that President Obama recognized atheists in his proclamation.  Does the freedom to exercise one’s religious beliefs freely extend to atheists and their (non)beliefs?  After you think about that question, read, our previous post in which we posed the same question.  The complete text of President Obama’s proclamation is available here.

Joining in the celebration were Melissa Rogers, Special Assistant to the President and Executive Director of the White House Office of Faith-based and Neighborhood Partnerships, and Eric Treene, Special Counsel for Religious Discrimination at the Department of Justice.  They authored the following blog post paying homage to RLUIPA’s effect on protecting religious freedom:

Today is Religious Freedom Day, marking the anniversary of the passage of Thomas Jefferson’s Virginia Statute for Religious Freedom, which ultimately provided the inspiration and framework of the First Amendment’s religion clauses. In his Religious Freedom Day Proclamation President Obama calls on us to “celebrate America’s legacy of religious liberty” and “resolve once more to advance religious freedom in our time.”

One way that the federal government seeks to ensure that these principles are put into practice is through enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Passed by unanimous consent in 2000 with the support of a religiously and ideologically diverse coalition of groups, RLUIPA seeks to ensure religious freedom in two important areas:  the ability of religious communities to build places of worship and other religious institutions, and the ability of prisoners and other persons confined to institutions to continue to practice their faiths. 

Prior to RLUIPA, Congress had found widespread discrimination against places of worship in local zoning decisions: discrimination against minority faiths, against Christian churches with members from racial minorities, and against smaller and newer churches.  Congress also found that places of worship as a category faced discrimination, excluded from zones where nonreligious places of assembly, like fraternal organizations, theaters, and community centers were permitted. 

As Senator Orrin Hatch and the late Senator Edward Kennedy, RLUIPA’s Senate sponsors, noted:  “The right to assemble for worship is at the very core of the free exercise of religion.  Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements.”  Congress thus passed RLUIPA, which prevents discrimination against religious institutions in zoning and landmarking decisions, and also prevents application of these laws in ways that imposes a “substantial burden” on religious exercise without a compelling government reason.  Suits may be brought by the affected religious institutions or individuals, as well as by the Department of Justice.

A Department of Justice report on the 10th anniversary of RLUIPA found that the law had a “dramatic impact in its first ten years on protecting the religious freedom of and preventing religious discrimination against individuals and institutions seeking to exercise their religions through construction, expansion, and use of property.”  The report noted that these cases represented a wide range of religious groups, including Christians, Jews, Muslims, Sikhs, people who practice Native American traditional religions, and many others, and arose in a wide range of settings, including churches, synagogues, mosques and other places of worship, religious schools, prayer meetings in homes, and faith-based social services such as homeless shelters, group homes, and soup kitchens.

RLUIPA’s land use protections continue to protect a wide range of religious institutions.  Recent cases include helping a small independent church in Mississippi and a large Hispanic Southern Baptist Church in Arizona  to locate in downtown areas on an equal basis with nonreligious assemblies; winning a consent decree to permit a Buddhist congregation in Walnut, California to construct a temple; helping win the right for a small Hasidic Jewish congregation to locate in a residential neighborhood in Los Angeles; and obtaining a consent decree allowing an Islamic Center in Lomita, California, to replace its aging and inadequate complex with a single mosque building.  

RLUIPA also protects the religious freedom rights of persons confined to prisons, jails, mental institutions and state-run nursing homes.  While security and other unique needs of such institutions will mean that people in them do not have all the freedoms they have outside of them, Senators Hatch and Kennedy noted that “some institutions restrict religious liberty in egregious and unnecessary ways” and that “prison officials sometimes impose frivolous or arbitrary rules” such as denying matzo bread to Jews at Passover or refusing to allow prisoners to wear small crosses that did not pose security risks.  In December 2013, the Department of Justice won a Preliminary Injunction against the State of Florida requiring it to offer Kosher meals to prisoners whose faith requires them, and the Department recently reached a consent decree with a county jail in South Carolina to allow prisoners to obtain religious texts, secondary religious materials, and religious items used in worship.

The values embodied in RLUIPA are universal ideals.  Department of Justice attorneys have provided technical assistance on issues involving construction of places of worship to government officials in Spain, Indonesia, Bosnia-Herzegovina, and other countries wrestling with these same issues.  In 2012, the Islamic Center of Murfreesboro, Tennessee won the right to move into its new mosque with the help of a RLUIPA suit brought by the Department of Justice. On the day of the court decision, the mosque’s Imam, Sheikh Ossama Bahloul, remarked that America’s dedication to religious freedom can serve as a model for others around the world, and added:   “I think this is an opportunity for us all to celebrate the freedom and liberty that, in fact, exist in America and to teach our young people to believe even more in the U.S. Constitution.”

Ms. Rogers’ and Mr. Treene’s blog post can be accessed here.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.