Taking the Temple: Eminent Domain and the Limits of RLUIPA
Taking the Temple: Eminent Domain and the Limits of RLUIPA
Daniel N. Lerman, 96 Geo. L.J. 2057 (2008)
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This Note argues that RLUIPA does not apply to eminent domain actions but that religious assemblies can nevertheless challenge condemnations under the Free Exercise Clause. Part I provides an overview of RLUIPA’s land use provisions and its background. Part II demonstrates, through an analysis of the Act’s statutory text, legislative history, and policy goals, that RLUIPA does not apply to eminent domain actions. This conclusion stands in contrast with the position taken by most commentators that eminent domain actions trigger RLUIPA’s protections. Part III further explains that even if they do implicate RLUIPA, condemnations may not constitute a substantial burden on religious exercise under the Act and may therefore fail to trigger strict scrutiny. Thus, RLUIPA is unlikely to serve as an effective defense against takings of religious property. Part IV, however, argues that religious institutions can still fight eminent domain actions under the Free Exercise Clause. Thus, while this analysis illustrates the limits of RLUIPA, it also suggests that, even in the wake of Kelo, religious institutions are not defenseless against condemnations that inhibit the free exercise of religion.