II. RLUIPA Has a Permissible Secular Purpose
In Amos v. Corp. of Presiding Bishops (1987),7 the Supreme Court stated that the secular purpose requirement of Lemon v. Kurtzman8 is to prevent governmental decision makers "from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters."9 Like the institutionalized-persons provision of RLUIPA, the land use provisions are designed to "alleviate exceptional government-created burdens on private religious exercise."10
Further, as the 11th Circuit noted in Midrash Sephardi, "the government may (and sometimes must) accommodate religious practices . . . without violating the Establishment Clause."11 Thus, "[t]he Supreme Court has upheld statutes that 'alleviate significant government interference with the ability of religious organizations to define and carry out their religious missions.'"12 Accordingly, "where . . . a law's purpose is to alleviate significant government interference with the exercise of religion, that purpose does not violate the Establishment Clause."13
In Amos, the Supreme Court held that a law that lifts a significant government-imposed burden on religion can serve a valid secular purpose even though it "singles out religious entities for a benefit."14
RLUIPA section 2(a) has the permissible secular purpose of alleviating significant government interference with the exercise of religion. Specifically, that provision frees religious institutions from governmental restrictions that otherwise would prevent them from engaging in religiously motivated activity—the religious use of land for worship, teaching, and good works—without sufficient justification.15
Moreover, as noted previously, the Supreme Court has held that Congress and the states may accommodate religious needs beyond what the Constitution requires and that such statutes do not fail per se for lack of a secular purpose. Removing government-imposed burdens against private religious exercise is a valid secular purpose, and RLUIPA section 2(a) serves precisely that purpose.
a. RLUIPA Has Permissible Secular Effects
"A law is not unconstitutional simply because it allows churches to advance religion. . . . For a law to have forbidden 'effects' under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence."16
As the Supreme Court noted in Cutter, "[r]eligious accommodations . . . need not be packaged with benefits to secular entities."17 To accept the view of opponents that RLUIPA's land use provisions of the RLUIPA violate the Establishment Clause because it accommodates religious uses above secular uses would require "all manner of religious accommodations to fail."18 In accordance with Cutter, RLUIPA has done nothing to impermissibly advance religion.
RLUIPA section 2(a) does not involve the government itself with advancing religion, any more than did the accommodations upheld in Amos. Rather, as the Midrash court correctly observed, this section simply permits allow religious groups themselves to advance religion, as they could have done if the land use laws at issue had never been enacted.19 Opponents to RLUIPA argue that section 2(a) has no secular effect because it allegedly provides special protection to religious landowners, regardless of any showing of animus or hostility. It is well established, however, that an otherwise permissible religious accommodation (i.e., a law that "lifts a significant government-imposed burden on religion") does not fail the Lemon effects prong merely because it "singles out religious entities for a benefit."20 As the Supreme Court explained in Amos, "[w]here...
