When Zoning Becomes a Tool of Religious Exclusion

Missionaries of Saint John the Baptist v. Frederic

The U.S. Supreme Court is now being asked to review a case out of Kentucky that goes to the heart of religious liberty in America: Can the government use zoning laws to block religious exercise – and then claim no real burden exists?

Protect The 1st, in an amicus brief, is urging the Supreme Court to uphold the plain meaning of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The facts alone should give the Court pause. A Catholic order in Park Hills, Kentucky, sought to build a shrine to the Virgin Mary in a modest grotto next to its church. The church sought an exemption from the city of Park Hills requiring that new structures be built on arterial streets.

The Park Hills Board of Adjustment approved the church’s request for a variance. When neighbors sued, however, it set off a chain of appeals that ultimately landed before the Kentucky Supreme Court. That court held that an outright prohibition did not impose a “substantial burden” on religious exercise. That conclusion – that a church cannot build a shrine land – turns RLUIPA on its head.

RLUIPA should have been a shield for the church. Congress enacted RLUIPA precisely because local zoning regimes had become a quiet but powerful tool for excluding religious institutions. Lawmakers compiled extensive evidence showing that religious minorities were routinely denied permits through shifting, inconsistent, and often pretextual justifications. 

In one case presented before Congress, a city denied a permit for a Latter-day Saints temple, declaring it was not in the community’s interest and expressing a desire to “have no more churches in the community.” Another city rejected an Orthodox Jewish synagogue for lacking parking – despite the fact that congregants could not drive on the Sabbath – only to reverse course and cite traffic concerns when the parking issue was addressed. 

And then there were the moments when the mask slipped entirely.

Congress heard testimony that during zoning proceedings, one participant told Jewish applicants that “Hitler should have killed more of” them. Another urged officials to “keep these God damned Pentecostals” out of the community. In still another instance, a zoning board “invited testimony” about the perceived impact of “substantial Orthodox Jewish populations” before deciding whether to approve a permit. 

This is not ancient history. It is the very record that prompted Congress – on a bipartisan basis – to conclude that discrimination in land-use regulation was “very widespread” and often disguised behind neutral-sounding rules. 

RLUIPA was designed to stop exactly this kind of behavior by requiring courts to apply strict scrutiny when government actions substantially burden religious exercise. But the Kentucky decision effectively guts that protection.

If the government can flatly prohibit a religious structure and still claim there is no “substantial burden,” then RLUIPA becomes little more than a paper promise.

The Supreme Court should take this case to reaffirm a basic principle – preventing religious exercise is not a minor inconvenience. It is, by definition, a substantial burden. And weakening RLUIPA so local governments can once again disguise exclusion behind zoning codes risks returning us to a time when religious minorities were told – sometimes politely, sometimes not – that they were not welcome.
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RLUIPA was meant to end that era. The Court should ensure it still does.

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