The Department of Justice (DOJ) released a new report on its involvement in RLUIPA cases.  The report, “Update on the Justice Department’s Enforcement of the Religious Land Use and Institutionalized Persons Act: 2010-2016,” is a follow-up to the DOJ’s 2010 report, and is an important read for any municipal lawyer.  One of the main take-aways from the report is the DOJ’s assertion that “RLUIPA has continued to be a powerful tool for protecting the religious freedom of all ….”  Here are some other highlights:

  • Since 2010, the DOJ has opened 45 land use investigations of potential RLUIPA violations, has filed 8 RLUIPA lawsuits involving land use, and has filed 8 amicus (friend of the court) briefs in privately filed RLUIPA land use cases to educate the court about the statute’s provisions
  • The DOJ reports that “its investigations since 2010 has reinforced the conclusion that minority groups have faced a disproportionate level of discrimination in zoning matters, reflected in the disproportionate number of suits and investigations involving minority groups undertaken by the Department.”
  • The percentage of DOJ RLUIPA investigations involving mosques or Islamic schools has risen from 15% in the 2000 to August 2010 period to 38% during the September 2010 to present period.
  • 84% of non-Muslim investigations opened by the DOJ resulted in positive resolutions, but only 20% of Muslim investigations have resulted in positive resolutions without the filing of a RLUIPA suit.
  • RLUIPA’s substantial burden provision “was intended in part to prevent subtle, hard-to-prove discrimination. As the U.S. Court of Appeals for the Seventh Circuit observed, this provision ‘backstops the explicit prohibition of religious discrimination in the later section of the Act, much as the disparate-impact theory of employment discrimination backstops the prohibition of intentional discrimination.’  Thus the sharp increase in total RLUIPA cases involving mosques and Islamic schools is a matter for concern and attention, even when those cases do not involve explicit anti-Muslim animus.”  (citing Constantine and Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005)).

The report also notes some of the significant investigations and cases in which the DOJ has been involved.  The full report is available here.