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

Abstract

Courts have been divided over the proper application of the substantial burden and equal terms provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to religious land-use cases. In particular, courts and scholars have had trouble balancing the competing concerns between municipalities and religious institutions regarding control over land-use regulations. The basic question remains, how to provide religious institutions with protection against discrimination without conceding too much control over land-use regulations. This Note observes the use of economic principles in Judge Posner’s opinions, which can help guide a balanced, fact-sensitive application of RLUIPA’s provisions. Using this approach, courts can balance competing concerns by weighing them against relevant facts that are specific to each community. Nevertheless, although the economic approach sheds light on the application of RLUIPA, it also reveals new tensions both within RLUIPA’s application and the economic approach generally.