The Role of Economics in the Discourse on RLUIPA and the Nondiscrimination in Religious Land Use

Abstract

In the context of land use, the Religious Land Use and Institutionalized Persons Act (RLUIPA) allows religious institutions to challenge land-use decisions that unfairly discriminate against religious land use. Of the various mechanisms in the statute that provide relief, the substantial burden and equal terms provisions have created confusion in the courts and controversy among scholars. Oftentimes, courts and scholars have framed the discussion of RLUIPA’s substantial burden and equal terms provisions as a matter of power and control. A law and economics approach, however, can allow courts and scholars to balance competing concerns by weighing them against relevant facts that are specific to each community. This Note first discusses the state of the law and scholarship on RLUIPA’s substantial burden and equal terms provisions. Then, this Note analyzes Judge Richard Posner’s application of these provisions to provide a fresh look on RLUIPA’s application. Finally, this Note assesses the merits and potential challenges in taking a community-specific, fact-intensive approach to RLUIPA. Although the economic view is certainly not a fail-safe approach, it can at least refract the discussion on RLUIPA’s application to open new ways of thinking about religious discrimination in land use.