An interesting decision from the Eastern District in Virginia, relating to the RLUIPA was handed down last month concluding that the provisions of the act did not protect a church which wanted to lease space to a small school which provided education to children with emotional and mental disabilities. Remember that the federal act (RLUIPA) is somewhat more restrictive then the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. While the definition of religious exercise under both acts is similar (the federal act defines it as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USCA § 2000cc (7)(A) and the Tennessee act, defines it as “exercise of religion under article I, § 3 of the Constitution of Tennessee and the first amendment to the United States Constitution”) the definition of "substantial burden" under the state act is much broader. Even without regard to the substantial burden definitions, one has to wonder whether a Tennessee judge might be a little more inclined to view religious activities on a broader scope.
In this case, Calvary Christian Center v Fredericksburg, 2011 WL 5843641 (ED Va 2011), the church applied for a special use permit from the local legislative body in order to allow the church to lease space to a private school, Fairwinds Day School, which has 12 students all with disabilities meriting private educational facilities. It is also worthy of note that the Fairwinds Day School operates on a for-profit basis. The local Planning Commission recommended approval of the application, but on presentation to the local legislative body, the application was denied. Several reasons were advanced, including the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students.
The church filed suit in federal court on several grounds, but we will restrict our consideration only to the RLUIPA claim. Although the church alleged that operation of Fairways was an exercise of “sincere religious belief to minister to emotionally and mentally disabled children” the court concluded that the church had not pled any facts “demonstrating that the operation of a day school by a third-party is a religious exercise.” The District Court had noted previously, on an application for a preliminary injunction filed by the church in the same case, that there were insufficient facts to demonstrate that the curriculum and administration of the school were anything other than secular. The court quoted several federal cases, including the Living Water case from the Sixth Circuit, to the effect that “structures used by religious organizations for secular purposes are not necessarily protected as religious exercise.”
Certainly, secular use of religiously owned buildings does not implicate the RLUIPA. However, Living Water did not really turn on that particular issue; the Sixth Circuit did indicate that the RLUIPA was not a blanket immunity from local codes regulations. But from my perspective, the Sixth Circuit relied more on the idea that there was no “substantial burden” under the terms of the RLUIPA and not that the use of the buildings were secular.
Following up on that, perhaps the mistake made here was not offering some religious overtone in the curriculum of the schooling as well as renting out the space to a third party instead of simply either buying the third-party and operating the school on its own as part of the church activities. For example, if a large church with a large campus, rants a part of the campus to a school teaching chess, could that be said to be protected within the scope of the RLUIPA, or for that matter, the broader Tennessee Religious Freedom Restoration Act? Most probably not.
On the other hand, if the church operated the school itself, with a curriculum that included religious studies, it would appear to me that it would be impossible to argue that the use of the leased premises was secular. Under those circumstances, it would seem that most any court would conclude that the operation of the day school would be protected by the RLUIPA, assuming substantial burden imposed by local regulation.
Furthermore, suppose that the school least the premises to an independently run day school, as was the case here, but a part of the agreement was that the curriculum would include religious training consistent with the teachings of that particular church. Once again, one would think, that such activities would not be secular and that they would fall within the protection of the RLUIPA.
Finally, what impact did the fact that the day school was a for-profit business have on the determination this case? Certainly, it would seem to me, that a profit-making enterprise makes it easier for the court to reach a conclusion of a secular purpose or for that matter even a finding of no substantial burden under the RLUIPA. Certainly, if the church operated the school, and did so at a loss, that which strengthened the argument that the purpose was religious rather than secular. Once again, however, having a curriculum that provided for religious instruction strengthens the position of the religious institution. It may be that without such a curriculum, simply operating a day school is an insufficient basis for protection under into the federal or the Tennessee act.
We still have no decisions regarding land use activities under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. Until we get some decisions under the state act, we can only guess as to how broadly its provisions will be construed.