A Concrete Example

[Rick Duncan]

Many of the serious problems Marci worries about under RLUIPA--traffic, parking, noise, etc--even if compellingly important, can be mitigated by less restrictive means than excluding religious land users from neighborhoods. For example, generally applicable traffic laws (speed limits, pedestrian crosswalks, speed bumps) and parking laws and noise laws should take care of these concerns. And RLUIPA's equal treatment rule ("No government shall impose or implement a land use regulation in a
manner that treats a religious assembly or institution on less than
equal terms with a nonreligious assembly or institution") merely requires government to treat religious landusers on equal terms with similar secular landusers. For example, a church must be treated on equal terms with a secular assembly, such as a social club or perhpas even a theatre.If the social club is not causing serious police power problems, why should we think that a similar religious landuser is doing any harm?

I teach an RLUIPA unit in my 1L Property class, because, like the fair housing laws, RLUIPA protects civil rights in the area of real property law. It is a great opportunity to bring public law into a first year, primarily common law class. My Property students love the 3-hour RLUIPA unit in the course. This is one of the reasons why a 6-credit Property class is useful in the First Year.

 
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902


"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)




      
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