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40 Rutgers L. Rec. 1 (2012-2013)

handle is hein.journals/rutglr40 and id is 1 raw text is: Rutgers Law Record RUTGERS LAW RECORD The Internet Journal of Rutgers School ofLaw | Newark www.lawrecord.com Volume 40 2012-2013 A NON-INTENT BASED CHALLENGE TO EXCLUSIONARY ZONING: WHY RLUIPA CAN HELP ONE RELIGIOUS COMMUNITY WHEN CONSTITUTIONAL CHALLENGES FAIL* Charis G. Orzechowski I. INTRODUCTION Does a religious community have a remedy when a municipality's intent-neutral zoning ordinance acts to completely exclude that group from living within its borders by prohibiting the only type of housing the religious group will use? That the zoning ordinance acts to discriminate against this group, excluding them from living within the municipality's border by excluding their housing, there can be little question. However, where the zoning ordinance is neutral on its face, and no intent to either interfere with the community's free exercise of religion,' or intent to discriminate against them in violation of the Fourteenth Amendment equal protection clause2 is *This note is dedicated to Dr. Gerald Benjamin of the State University of New York at New Paltz, who taught me to value local government, Prof Patricia Salkin, Esq., Dean of Touro Law Center, who gave me the inspiration for this note, and to my husband, who has more patience than any person I know. 1 For a discussion of why it is necessary to show interference with religious exercise on the face of the law, or prove intent to interfere, in order to apply strict scrutiny in a constitutional 1st amendment challenge against a municipality, see Employment Ditision v. Smith, 494 U.S. 872, 879 (1990); see also Prof Patricia Salkin, Esq.'s article, GOD AND THE LAND: A HOLY WAR BETWEEN RELIGIOUS EXERCISE AND COMMUNITY PLANNING AND DEVELOPMENT, 2 ALB. GOVT L. REV. viii (2009) (noting that courts cannot apply strict scrutiny to land use laws because zoning ordinances generally represent intent-neutral plans where the government action at issue was neutral and generally applicableH). 2 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (reinforcing in the context of discriminatory zoning that a 14h amendment Equal Protection clause challenge can only succeed where petitioners are 1 Volume 40 2012-2013

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