* Note Editor, Boston College Environmental Affairs Law Review, 2003–04.
1 42 U.S.C. §§ 2000cc to cc-5 (2000).
2 Id.
3 146 Cong. Rec. S7774 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy).
4 146 Cong. Rec. S7777 (daily ed. July 27, 2000) (letter from the Coalition for the Free Exercise of Religion).
5 See Caroline R. Adams, Note, The Constitutional Validity of the Religious Land Use and Institutionalized Persons Act of 2000: Will RLUIPA’s Strict Scrutiny Survive the Supreme Court’s Strict Scrutiny?, 52 Fordham L. Rev. 2361, 2364 (2002). In the time between the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997), and the RLUIPA’s passage, Congress had drafted two bills—the Religious Liberty Protection Acts of 1998 and 1999; neither of these laws were enacted. Id. The prior bills were more expansive, but failed to pass because of concerns about the proposed legislation’s impact on existing civil rights statutes. See 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement of Rep. Canady); 146 Cong. Rec. S7777 (daily ed. July 27, 2000) (letter from the Leadership Conference on Civil Rights).
6 494 U.S. 872(1990).
7 Smith, 494 U.S. at 885.
8 The Supreme Court has developed three tiers of review for evaluating laws that may have the effect of infringing on an individual’s constitutional rights. Under rational basis review, the least stringent level of scrutiny, a law will be upheld if it is rationally related to a legitimate government purpose. Under intermediate scrutiny, the Court will uphold the law so long as it is substantially related to an important government purpose, and the means to achieve that purpose has a substantial relationship to the ends being sought. Finally, under strict scrutiny, the Court will uphold the challenged law only if the government can prove that the law is necessary to achieve a compelling state interest and that the government cannot achieve this purpose through any less restrictive means. See Erwin Chemerinsky, Constitutional Law: Principles and Policies §§ 9.2–9.4 (1997). Before Smith, the Court had used strict scrutiny to evaluate laws which had the effect of burdening religious exercise. See id. § 12.3.2.
9 42 U.S.C. § 2000bb (2000).
10 521 U.S. 507, 511 (1997); 146 Cong. Rec. E1564 (daily ed. Sept. 22, 2000) (statement of Rep. Canady) (explaining that the effect of the Supreme Court’s holding in City of Boerne was to eliminate all of the statute’s references to the states and leave “RFRA applicable only to the federal government”); see also Kikumura v. Hurley, 242 F.3d 950, 959–60 (10th Cir. 2001) (holding that RFRA is still applicable to the federal government).
11 “RLUIPA is the most recent in a series of tugs and pulls between Congress and the Supreme Court to define the scope and extent of the Free Exercise Clause.” Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1220 (C.D. Cal. 2002).
12 146 Cong. Rec. S7774 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy).
13 See id. The RLUIPA, as its name suggests, also applies to laws which regulate individuals in prisons, mental hospitals, and similar state institutions. This note, however, will focus only on those aspects of the RLUIPA which apply to land use.
14 374 U.S. 398, 403 (1963); see 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement of Rep. Canady) (“The phrase ‘in furtherance of a compelling governmental interest’ is taken directly from RFRA, which was enacted in 1993; the phrase was and is intended to codify the traditional compelling interest test.”).
15 374 U.S. at 400–01.
16 Id. at 399.
17 Id. at 399 n.1.
18 Id. at 399 n.2.
19 Id. at 403.
20 See id. at 403. (citing NAACP v. Button, 371 U.S. 415 (1963)).
21 Sherbert, 374 U.S. at 407.
22 Id. at 404.
23 Id. at 410.
24 See infra text accompanying notes 24–35.
25 See 494 U.S. 872, 908 (1990) (Blackmun, J., dissenting) (arguing that the Court’s decision “effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution.”); id. at 891 (O’Connor, J., concurring) (“In my view, today’s holding dramatically departs from well-settled First Amendment jurisprudence . . . .”).
26 Smith, 494 U.S. at 878–79.
27 Id. at 874.
28 Id.
29 Id. at 875.
30 Id. at 875–76.
31 Id. at 884.
32 Smith, 494 U.S. at 884 (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986)).
33 See id. at 883–85.
34 See id. at 884–86.
35 Adams, supra note 5, at 2371; see also City of Boerne v. Flores, 521 U.S. 507, 512 (1997).
36 City of Boerne, 521 U.S. at 536.
37 Id. at 511–12.
38 Id. at 512.
39 See infra Part II.B.
40 See City of Boerne, 521 U.S. at 519–20.
41 Id. at 516–19 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)).
42 See id. at 512, 519.
43 Id. at 519.
44 Id. at 520.
45 Id. at 531–32.
46 City of Boerne, 521 U.S. at 532–35.
47 Id. at 536.
48 See Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1221 n.7 (C.D. Cal. 2002) (“Because RLUIPA is based on the Spending and Commerce Clauses, and the codification of current precedent on individualized assessments . . . RLUIPA would appear to have avoided the flaws of its predecessor RFRA, and be within Congress’s constitutional authority.”) Cf. United States v. Maui, 298 F. Supp. 2d 1010, 1015 (D. Haw. 2003) (“Although RLUIPA does ‘intrude’ to some extent on local land use decisions, there is nothing about it that violates the principles of federalism [or the Tenth Amendment] . . . if the federal statute is otherwise grounded in the Constitution. RLUIPA is not federal zoning of county land; it is federal enforcement of federal rights.”).
49 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy); 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement of Rep. Canady).
50 See, e.g., Freedom Baptist Church of Del. County v. Township of Middletown, 204 F. Supp. 2d 857, 874–76 (E.D. Pa. 2002) (holding that RLUIPA did not offend the Constitution or the federal structure, but recognizing the issue as one in “which there is substantial ground for difference of opinion” and certifying a question about the law’s constitutionality to the U.S. Court of Appeals for the Third Circuit). Cf. Elsinore Christian Ctr. v. City of Lake Elsinore, 291 F. Supp. 2d 1083, 1103 (C.D. Cal. 2003) (holding that because RLUIPA “was enacted without the ambit of congressional authority, it is unconstitutional”).
51 42 U.S.C. § 2000cc(a)(2)(A) (2000).
52 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy) (citing Title VI of the Civil Rights Act of 1964 and South Dakota v. Dole, 483 U.S. 203 (1987), for the proposition that Congress is permitted to “attach germane conditions to federal spending”).
53 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy).
54 See, e.g., Freedom Baptist Church, 204 F. Supp. 2d at 865 n.10.
55 See 42 U.S.C. § 2000cc(a)(2)(B).
56 Id.
57 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement of Rep. Canady).
58 See United States v. Morrison, 529 U.S. 598, 610 (2000); United States v. Lopez, 514 U.S. 549, 551 (1995) (together standing for the proposition that Congress cannot use its power under the Commerce Clause to regulate non-commercial activities, no matter how much those activities may affect interstate commerce).
59 See 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement of Rep. Canady).
60 Id.
61 Freedom Baptist Church v. Township of Middletown, 204 F. Supp. 2d 857, 859, 865–66 (2002).
62 Id. at 859.
63 Id.
64 In order to obtain a conditional use permit for religious worship, the town required applicants to provide adequate parking and a minimum lot size of 5 acres, a requirement that the Church argued made it nearly impossible for any new churches to locate within the Township. See id.
65 Id.
66 Id. at 865.
67 Freedom Baptist Church, 204 F. Supp. 2d at 866. But see supra text accompanying note 59.
68 Id.
69 Id. at 867–68 (internal citations omitted).
70 529 U.S. 598 (2000) (determining the constitutionality of the Violence Against Women Act).
71 514 U.S. 549 (1995) (determining the constitutionality of the Guns Free School Zone Act).
72 Freedom Baptist Church, 204 F. Supp. 2d at 866–67 (stating that the criminal nature of conduct was central to the Court’s determination in Morrison).
73 317 U.S. 111 (1942) (holding that the Court could consider the effect of discrete commercial activities in the aggregate on interstate commerce). See also Westchester Day Sch. v. Vill. of Mamaroneck, 280 F. Supp. 2d 230, 238 (S.D.N.Y. 2003) (holding that the RLUIPA does not violate the commerce clause, in part, because religious organizations “facilitate the interchange of ideas, goods and services across a religious community that may span multiple states, as well as between that community and the outside world. This is paradigmatic ‘commerce.’”) (quoting U.S. v. Ballinger, 312 F.3d 1264, 1283 (11th Cir. 2002).
74 204 F. Supp. 2d at 867 nn.12 & 14 (discussing the Supreme Court’s Morrison holding).
75 Compare Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L. Rev. 929, 952–53 (2001) (finding that the RLUIPA falls within Congress’s Commerce Clause power), with Evan M. Shapiro, Note, The Religious Land Use and Institutionalized Persons Act: An Analysis Under the Commerce Clause, 76 Wash. L. Rev. 1255, 1278 (2001) (finding that the RLUIPA is an unconstitutional use of Congress’s Commerce Clause power).
76 See Storzer & Picarello, supra note 74, at 953.
77 Id.
78 See id.
79 See id.; see also Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1221–22 (C.D. Cal. 2002) (Explaining that religious congregations participate in commerce both during and after construction of a building project.)
[T]he use of the church once it is constructed will affect commerce. [The church] will employ ministers, maintenance personnel, and daycare center workers. [The congregation] will use its church to transmit a televised ministry and hold national religious conferences. Furthermore, the bookstore will have employees and will regularly obtain merchandise for resale. All of these activities affect commerce.
Id.
80 See Storzer & Picarello, supra note 74, at 953.
81 See id.
82 See Shapiro, supra note 75, at 1279; Ada-Marie Walsh, Note, Religious Land Use and Institutionalized Persons Act of 2000: Unconstitutional and Unnecessary, 10 Wm. & Mary Bill Rts. J. 189, 201 (2001).
83 Shapiro, supra note 75, at 1278.
84 Id. at 1282–83; see also Walsh, supra note 82, at 208.
85 Shapiro, supra note 75, at 1283.
86 Id. at 1285.
87 Id. at 1287.
88 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement of Rep. Canady); 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy).
89 42 U.S.C. § 2000cc(a)(2)(C) (2000) (emphasis added). A prima facie case under the statute requires a plaintiff to show that the land use regulation at issue: “1) imposes a substantial burden; 2) on the ‘religious exercise;’ 3) of a person, institution, or assembly.” Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186, 1194 (D. Wyo. 2002). At that point, the defendant municipality or state has the burden of proving that the regulation: 1) furthers a compelling governmental interest; 2) by the least restrictive means. Id.
90 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) and Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 884 (1990) for the proposition that, “[w]here government makes such individualized assessments, permitting some uses and excluding others, it cannot exclude religious uses without compelling justification”).
91 See id; see also Smith, 494 U.S. at 884–85.
92 See 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy).
93 See id.
94 Freedom Baptist Church v. Township of Middletown, 204 F. Supp. 2d 857, 868–69 (E.D. Pa. 2002).
95 Id. at 868–74.
96 Id. at 868–71.
97 Id. at 872–74.
98 Id. at 868.
99 508 U.S. 520 (1993).
100 Freedom Baptist Church, 204 F. Supp. 2d at 869 (citing, with approval, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)).
101 Id.
102 See id. at 872.
103 Id. at 873–74.
104 Id. at 874.
105 Ira C. Lupu, The Case Against Legislative Codification of Religious Liberty, 21 Cardozo L. Rev. 565, 573 (1992).
106 2004 WL 546792, *7 (W.D. Tex. Mar. 17, 2004).
107 Id. In this recent case, a local church claimed that the city’s denial of two special use permits—one to build a parking lot and one to alter the use of a top story church building—violated its rights under the First Amendment, the RLUIPA, and the Texas Religious Freedom Restoration Act. Id. at 2. But see Elsinore Christian Ctr. v. City of Lake Elsinore, 291 F. Supp. 2d 1083, 1098 (C.D. Cal. 2003), where the court states that:
Land use permitting is not an analogous case. In determining whether to issue a zoning permit, municipal authorities do not decide whether to exempt a proposed user from an applicable law, but rather whether the general law applies to the facts before it. In this case, for instance, no users are “exempt” from the C-1 zoning rules. Rather, certain commercial users may locate in C-1 zones as a matter of right, while non-commercial users, including churches, must seek a permit. Thus, the Church is simply subject to the same permitting rules as all other users.
Id.
108 Castle Hills First Baptist Church, 2004 WL 546792 at *15.
109 See id.
110 Elsinore, 291 F. Supp. 2d at 1103.
111 Id. at 1085–86.
112 Id. at 1091, 1094–95. The City offered several justifications for denying the church a permit: maintaining a needed service (the space’s current tenant was a discount grocery store in a low-income neighborhood); preventing loss of property tax revenue; potential paucity of adequate on-site parking for the church’s congregation; and curbing urban blight by continuing to support a grocery store and provide local jobs. Id. at 1093. The court determined that maintenance of tax revenue was not a compelling interest. Id. “The maintenance of property tax revenue is a potentially pretextual basis for decision-making that appears to have been a specific target of RLUIPA.” Id.
113 See id. at 1091.
114 Id.
115 See id. 1099.
116 Elsinore, 291 F. Supp. 2d at 1099.
117 Id. at 1098.
118 See id.
119 Id. at 1099.
120 Adams, supra note 5, at 2392.
121 Id. at 2404, 2405; see also Walsh, supra note 82, at 197–99.
122 Adams, supra note 5, at 2404. At least one court agrees: “RLUIPA’s test places a virtually insuperable barrier before states and municipalities attempting to justify actions that, far more often than not, are neither motivated by religious bigotry nor burdensome on central religious practice.” Elsinore, 291 F. Supp. 2d at 1101.
123 Id.
124 Id. at 2392.
125 Id. at 2393.
126 Id.
127 Id. at 2397–400. Adams found that this study was outdated and that the study’s methods failed to take into account the concentration of religious groups in a given geographical area in determining which religions were in the minority. See id.; see also Elsinore, 291 F. Supp. 2d at 1100 (“In fact, the [congressional] hearing record consists of a relatively small number of anecdotal instances in which religious assemblies were dissatisfied with zoning decisions or regulations, few of which constitute state or municipal actions of a clearly unconstitutional character.”).
128 See, e.g., Castle Hills First Baptist Church v. City of Castle Hills, 2004 WL 546792 (W.D. Tex. Mar. 17, 2004); Elsinore, 291 F. Supp. 2d at 1083 (C.D. Cal. 2003); Hale O Kaula Church v. Maui Planning Comm’n, 229 F. Supp. 2d 1056 (D. Haw. 2002); Murphy v. Zoning Comm’n, 148 F. Supp. 2d 173 (D. Conn. 2001); see also Konikov v. Orange County, Florida, 302 F. Supp. 2d 1328, 1346 (M.D. Fla. 2004) (“In light of the Court’s conclusion that no RLUIPA violation has been established, the Court need not reach the question of RLUIPA’s constitutionality.”); Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of W. Linn, 86 P.3d 1140 (Or. App. 2004) (ruling that a city’s denial of a conditional use permit to build a church meetinghouse in a residential area did not violate the RLUIPA and remanding the case to the local Land Use Board of Appeals without reaching the question of the RLUIPA’s constitutionality.)
129 Hale O Kaula Church, 229 F. Supp. 2d at 1059–60.
130 See id. at 1069–70.
131 Id. at 1064.
132 See id. at 1070, 1074.
133 Id. at 1070.
134 Id. at 1070–71.
135 Hale O Kaula Church, 229 F. Supp. 2d at 1072–73.
136 Id. at 1073.
137 Id. at 1071–72. The court did seem to suggest, however, that it might have ruled differently if the defendants had argued that the RLUIPA violated the Constitution because it failed to conform to the Supreme Court’s congruence and proportionality requirements for evaluating Commerce Clause challenges. See id. at 1073. In dicta, the court noted that even though it applied strict scrutiny in this case, “it [did not] necessarily mean that Congress did not go too far in codifying strict scrutiny for all zoning or land use laws, or in codifying an interpretation and extension of the ‘individualized assessments’ doctrine (i.e., extending the doctrine from an unemployment benefits context as in Smith to all zoning contexts).” Id.
138 Id. at 1074.
139 United States v. Maui, 298 F. Supp. 2d 1010, 1016 (D. Haw. 2003).
140 Id.
141 Id. at 1014.
142 Id. at 1016.
143 See C.L.U.B. v. City of Chicago, 157 F. Supp. 2d 903, 917 (N.D. Ill. 2001).
144 Id. at 905, 906.
145 Id. at 905–06, 917.
146 Id. at 917.
147 148 F. Supp. 2d 173, 177 (D. Conn. 2001).
148 Id. at 187 n.13.
149 Id.
150 Id.
151 See infra Part III.A.
152 See infra Part III.D.
153 See infra Part IV.B.
154 Lupu, supra note 105, at 580.
155 See id.
156 Id. (discussing the effects of the RLUIPA’s predecessor, the RFRA).
157 See id. at 581 (discussing a proposed California land use law).
158 See id. at 580.
159 See id. at 581.
160 See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 577–78 (1993) (Blackmun, J. concurring).
161 Id. at 531–32, 545.
162 See id. at 524.
163 Id. at 527, 528.
164 Id.
165 The Santeria religion is a fusion of western African religious practice with Roman Catholicism, developed in Cuba during the Nineteenth century when African slaves were brought to the island. Id. at 524.
166 Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 526–27.
167 Id. at 525.
168 Id.
169 Id. at 528.
170 Id. at 531.
171 Id.
172 Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531–32.
173 Id. at 542.
174 Id. at 533.
175 Id. at 533–34.
176 Id. at 535.
177 Id. at 540.
178 Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 533–34.
179 Id. at 534–35.
180 Id. at 535.
181 See id.
182 Id.
183 Id.
184 Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 536.
185 See id. at 540.
186 429 U.S. 252, 266 (1977) (involving an equal protection challenge to city zoning laws).
187 Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 540.
188 Id.
189 Id. (internal quotations omitted).
190 Id. at 536–39.
191 Id. at 536.
192 Id. at 539.
193 See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 543.
194 See id. at 543–44.
195 See supra text accompanying notes 158–191.
196 See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 535.
197 See id. at 535, 540.
198 See id. at 535; supra text accompanying notes 31–34.
199 Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 886 n.3 (1990).
200 See id. (citing Washington v. Davis, 426 U.S. 229 (1976)).
201 See id. (citing Washington v. Davis, 426 U.S. 229 (1976)).
202 See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 535.
203 See Lupu, supra note 105, at 580.
204 See id. at 571.
205 406 U.S. 205 (1972). In Yoder, the Supreme Court upheld a challenge by Amish parents that state compulsory school attendance laws, requiring that they send their children to public schools, burdened their free exercise rights. See generally id.
206 Smith, 494 U.S. at 882.
207 Id. at 881.
208 See Lupu, supra note 105, at 571; see also supra text accompanying notes 206–228.
209 See 309 F.3d 144, 163 n.20 (3d Cir. 2002).
210 See id. at 151.
211 Id. at 152.
212 Id.
213 Id.
214 Id. at 151 (stating that residents of Tenafly had previously attached directions to local churches, signs advertising missing pets, house number signs, Christmas holiday decorations, and orange ribbons to the utility poles without having the ordinance enforced).
215 Tenafly Eruv Ass’n, 309 F.3d at 151.
216 Id. at 165.
217 Id. at 162.
218 Id. at 161–62 (internal quotations omitted).
219 Id. at 163.
220 Id.
221 See Tenafly Eruv Ass’n, 309 F.3d at 163.
222 Id.
223 E.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 567 (1993) (Souter, J. concurring) (“If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule . . . .”); see also Castle Hills First Baptist Church v. City of Castle Hills, 2004 WL 546792, *7, *15 (W.D. Tex. Mar. 17, 2004) (“A plaintiff cannot establish a hybrid rights claim merely by combining a substantial free exercise claim with tenuous claims and mere allegations of violations of other rights.”).
224 See Miller v. Reed, 176 F.3d 1202, 1208 (9th Cir. 1999); Swanson v. Guthrie Indep. Sch. Dist. No. 1-L, 135 F.3d 694, 700 (10th Cir. 1998).
225 Swanson, 135 F.3d at 700.
226 See id.
227 See id.
228 See Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 881–82 (1990).
229 See Miller, 176 F.3d at 1204.
230 Id. at 1208.
231 See id.
232 148 F. Supp. 2d 173 (D. Conn. 2001).
233 See supra notes 148–150 and accompanying text.
234 Murphy, 148 F. Supp. 2d at 175.
235 Id. at 189.
236 See id. at 189–90.
237 Id.
238 Id. at 190–91.
239 See supra Part III.A.
240 See 146 Cong. Rec. S7774 (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy) (“Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation.”).
241 See e.g., Elsinore Christian Ctr. v. City of Lake Elsinore, 291 F. Supp. 2d 1083, 1087 (C.D. Cal. 2003). Plaintiffs brought claims alleging that the city’s denial of a conditional use permit violated the RLUIPA, the California state constitution, and the United States Constitution. Id. Because “[a] fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them,” the court asked the parties to initially focus their efforts on the plaintiff’s RLUIPA claim alone. Id. (quoting Lyng v. N.W. Indian Cemetary Protective Ass’n, 485 U.S. 439, 445 (1988)).
242 See Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 151 (2002).
243 See id. at 163.
244 Id. at 163; see Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 882 (1990).
245 See discussion, supra Part III.A.
246 See discussion, supra Part III.A.
247 See id.
248 See supra notes 4–5 and accompanying text.
249 See Walsh, supra note 81, at 203–04.
250 See Lupu, supra note 105, at 570.
251 Id.
252 Id.
253 Id.
254 Id.
255 Id. at 568.
256 See Lupu, supra note 105, at 583–84.
257 See supra note 5.
258 See id.
259 See Lupu, supra note 105, at 584.
260 See id. at 583.
261 See Castle Hills First Baptist Church v. City of Castle Hills, 2004 WL 546792 *7, *20 (W.D. Tex. 2004).
262 Id.
263 Id. at 572.
264 See id.
265 Id. at 573.
266 See id.
267 See supra Part II.
268 See supra Part II.B.
269 This does not mean, however, that the statute is impervious to attacks under the Spending Clause and the Commerce Clause.