A Religious Freedom Case for "YIGBY"

I recently wrote about the "YIGBY" ("Yes in God's Backyard") movement, which seeks to empower  churches and other religious organizations build housing on their property that would otherwise be banned by zoning restrictions. Notre Dame law Prof. Patrick Reidy (who is also a Catholic priest) recently published an article in the Yale Law Journal arguing that YIGBYism is required by constitutional and statutory laws protecting religious liberty. Here 's the abstract:

In recent years, faith communities across the United States have begun to create affordable housing on church property, inspired by sincerely held religious beliefs. Some are building microhomes behind their houses of worship. Others are converting residences once used by religious ministers—from rectories to abbeys to convents—into units for seniors and low-income families. Still others are repurposing their vacant schools, church parking lots, and undeveloped parcels of land for denser multifamily structures, from townhouses to apartment buildings. Within housing-advocacy circles and among faith communities, these continent-wide efforts to create affordable housing on church property have manifested an affirmative declaration: "Yes, In God's Backyard."

Legal scholarship and popular media have extensively documented the affordable-housing crisis. In particular, scholars and commentators have underscored the pernicious role of exclusionary zoning in strangling housing production, ultimately sending regional housing prices skyward. When faith communities create affordable housing on church property, much of which is located in residentially zoned areas, they seek something other than fair market value. Some might call it "charity" (tzedakah) or "discipleship," a commitment to "welcome the stranger" or to "love your neighbor as yourself."

Faith communities seek theologically and morally sound uses for their underutilized property, but often struggle to overcome the regulatory and financial hurdles of adaptive reuse. Local governments can incentivize redevelopment that benefits the wider community, growing their affordable housing supply. But their mutual benefit does not exempt faith communities from challenge when they choose to redevelop church property for affordable housing. Neighbors may seek to thwart faith communities from introducing denser, multifamily residential structures in their backyard, relying on land-use restrictions designed to prohibit less costly forms of housing. When they succeed, these challenges from NIMBY ("Not In My Backyard") neighbors can limit both housing supply and the free exercise of religion.

This Feature thus proposes a novel response to exclusionary zoning: religious liberty. Where sincerely held religious beliefs inspire faith communities' efforts to create affordable housing, these communities can assert constitutional and statutory free exercise protections against land-use decisions that obstruct denser, less expensive, multifamily developments on church land. This Feature also explores municipal and state legislative reforms that lower the barrier where faith communities struggle to overcome the regulatory and financial hurdles of adaptive reuse and demonstrates the breadth of potential for affordable housing on church property, drawing on public sources and a novel data set to map parcels owned by Roman Catholic dioceses in Chicago, Illinois and Oakland, California across municipal zones.

Regardless of how faith communities came to own property within their limits, or why faith communities seek to repurpose property within their limits, most local governments need property within their limits to create affordable housing. And faith communities are willing partners in their endeavor.

I am not an expert on the relevant religious liberty issues. But his argument strikes me as compelling and persuasive.

It's worth noting, however, that its scope is limited. Reidy doesn't argue that religious organizations have a constitutional or statutory religious-liberty right to build whatever housing they want. Rather, they can only do so in cases where the relevant religious property owner considers it a religious duty (usually a duty to provide for the poor and needy). Thus, they could not use this argument to, e.g., build new luxury condos in order to bring in additional revenue for the church. And that's true even though economists and land-use scholars rightly point out that building new housing for the affluent also helps the poor, by reducing competition for the existing stock of housing and by promoting economic growth. Even where there is a proper religious-freedom rationale for exemption, it could potentially be overridden by a compelling state interest.

In my earlier post, I also noted some other limitations of YIGBYism. It's a valuable step in the right direction, but not a replacement for full-blown NIMBY reforms. Ideally, we should abolish exclusionary zoning across the board, and let both religious and secular property owners build whatever housing they want, subject only to narrowly defined  health and safety restrictions.  In a forthcoming Texas Law Review article, Josh Braver and I explain how that can be accomplished by stronger judicial enforcement of the Takings Clause of the Fifth Amendment.

But Reidy's religious-liberty defense of YIGBY is an important contribution to legal scholarship, and his argument might end up influencing court decisions on these issues, as well. It seems likely that at least some faith organizations will raise such arguments to challenge zoning restrictions in the short to medium term future.

If YIGBYism continues to spread and becomes an important focus of religious-liberty litigation, it might also help change the political valence of religious liberty exemptions to generally applicable laws. When the Religious Freedom Restoration Act and other related laws were  enacted by federal and state governments in the 1990s, they enjoyed broad bipartisan support, probably even more  on the left than on the right. Indeed, these laws were reactions against the Supreme Court's 1990 ruling in Employment Division v. Smith, which was authored by conservative Justice Antonin Scalia. Liberal lions Harry Blackmun, William Brennan, and Thurgood Marshall dissented.

The valence of the issue changed as the stereotypical religious-liberty claimant shifted from members of minority faiths seeking to use a banned drug for its religious ceremonies (like the Native American plaintiffs in Smith, who wanted to use pejote), to socially conservative Christians who oppose contraception or refuse to "bake the cake" or provide other services for same-sex wedding ceremonies.

But we now have a new generation of left-coded religious liberty exemption arguments. YIGBY is an example. So too are religious organizations who aid undocumented immigrants in defiance of federal and state laws, and people who argue they have a religious duty to provide abortion services (at least in some situations). As these types of claims become more common and more prominent, perhaps the ideological valence of religious-liberty exemption arguments will shift again.

I am one of the rare people who supports a wide range of both left and right-wing religious-liberty exemptions—despite being an atheist myself! But it's easy for me to say that, given that I'm also a libertarian who supports strong property rights, open borders migration rights, abortion rights, and also the right of business owners to refuse services for a wide range of reasons (include ones I disapprove of on moral grounds, as in the case of opponents of contraception and same-sex marriage). Indeed, I think all of these activities should be legal for people who do them for purely secular reasons, as well as religious ones. I might make a narrow exception for businesses who have a monopoly over vital services, as in the case of public utilities.

People with more conventional left or right-wing views face more difficult trade-offs here. But in considering them, they should be aware that religious-liberty claims cut both ways, and are not limited to one side of the political spectrum.