VI. RLUIPA Is Consistent with the Establishment Clause
In Cutter v. Wilkinson,131 the Supreme Court unanimously rejected an Establishment Clause challenge to section 3 of RLUIPA and squarely dismissed the argument that RLUIPA impermissibly advanced religion by accommodating religious exercise alone without also accommodating other constitutional rights.132 Further, in Gonzales v. O Centro Espirita Beneficente Uniao (2006),133 the Court echoed Cutter and again acknowledged that RLUIPA did not violate the Establishment Clause. Consistent with those decisions and as explained next, RLUIPA comports with the Establishment Clause because it has the secular purpose and effect of lifting a significant government burden on the exercise of religion, and it does not require any excessive entanglement between government and religion.134
a. RLUIPA Has a Permissible Secular Purpose
In Amos, the Supreme Court stated that the secular purpose requirement of Lemon is to prevent governmental decision makers "from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters."135 Like the institutionalized-persons provision of RLUIPA, the land use provisions are designed to "alleviate exceptional government-created burdens on private religious exercise."136
Further, as the 11th Circuit noted in Midrash Sephardi, Inc. v. Town of Surfside,137 "the government may (and sometimes must) accommodate religious practices . . . without violating the Establishment Clause."138 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.'"139 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."140 In Amos,141 the Supreme Court explained 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."142
RLUIPA has the permissible secular purpose of alleviating significant government interference with the exercise of religion. Specifically, the statute 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.143
Moreover, as earlier noted, 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.
b. RLUIPA Section (2)(a) Has Permissible Secular Effects
In Midrash, the court held that "[a]...
