Last fall, the Second Circuit decided Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, 786 F.3d 183 (2d Cir. 2014), reversing the lower court’s order of summary judgment in favor of the Borough of Litchfield on Chabad’s claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Chabad sought to expand its existing building, a 1870’s stick-style Victorian known as the “Deming House,” within Litchfield’s Historic District. Although the parties contest the total square footage requested for expansion, the Borough asserts that Chabad’s plans show as 17,000-square-foot addition and Chabad has not provided plans with a smaller footprint. Our report on the Second Circuit’s decision is available here.

The U.S. District Court for the District of Connecticut concluded there was no substantial burden “as a matter of law” because Connecticut’s statutory scheme governing historic districts is “neutral and generally applicable,” and could not impose a substantial burden unless applied arbitrarily, capriciously, or unlawfully.

The Second Circuit reversed and remanded for consideration on Chabad’s substantial burden claim because the Borough’s review of Chabad’s application “was an ‘individual assessment’ subject to RLUIPA’s substantial burden provision…” It also remanded Chabad’s nondiscrimination claim, noting that “Chabad need not cite an ‘identical comparator to establish a claim under RLUIPA’s nondiscrimination provision.” The Court did, however, uphold the District Court’s determination that Chabad failed to establish a valid RLUIPA equal terms comparator to support its claim.

Recently, the Borough petitioned the United States Supreme Court to take the case and consider whether a substantial burden can be imposed by a neutral law of general applicability if applied in a rational manner. The Borough urges the Court to rule

that under our First Amendment, religious organizations must follow neutral and generally applicable land use regulations in the same manner as do secular applicants; that a law can be neutral and generally applicable if it is applied with standards giving the commission or board reasonable discretion; that an “individualized assessment” arises only when a law, on its face, gives exemption for secular uses not provided to religious uses; and, to the extent that RLUIPA conflicts with these principles, it is unconstitutional and void.

The Borough presented Employment Division v. Smith, 494 US 872 (1990) and City of Borne v. Flores, 521 US 507 (1997) as the legal foundation for its position. RLUIPA, the Borough argues, is a “legislative mandate which follows Sherbert v. Verner, rather than the judicial standard set by this Court in Smith.” The petition argues that Congress impermissibly rewrote the constitutional standard established by the Court in Smith.

RLUIPA Defense will keep an eye on this petition and keep our readers updated on any progression. The Borough’s petition is available here.