New York University Public Law and Legal Theory Working Papers

Document Type



34 Cardozo Law Review 1693 (2013)


The Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. declared that the First Amendment “gives special solicitude to the rights of religious organizations.” This recognition of institutional free exercise rights has important implications for religious land uses. The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise. Most RLUIPA claims are brought by the religious institution that owns property subject to a regulation. Nonetheless, courts and commentators evaluate these claims by applying a standard derived from cases involving individual free exercise rights. This approach has contributed to the significant lack of clarity regarding what constitutes a substantial burden, leaving property owners and local governments without a firm conception of the scope of land use protections for religious institutions.

This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. Both the concept of institutional free exercise and the treatment of institutions in other land use contexts shed significant light on how to clarify land use protections for religious institutions. Institutional free exercise provides a touchstone for distinguishing between the religious exercise of religious institutions and individual adherents and for understanding the distinct ways in which these institutions experience burdens. The treatment of nonprofit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape an analysis sensitive to the distinct, non-commercial concerns of religious property owners.

The analysis proposed in this Article reframes the interpretation of RLUIPA and provides insights applicable to evaluating hardships on other civil society institutions. It also offers broader insights into the relationship between religious institutions and the state and a starting point for further scholarship on how Hosanna-Tabor and the concept of institutional free exercise should affect institutional claims in other contexts.

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Land Use, Property, Hosanna-Tabor, RLUIPA, Institutional Free Exercise, First Amendment, Landmarks, hardship