The Federalism Project

American Enterprise Institute

Bye, Bye Boerne
House and Senate try RFRA, again

On July 27, the House and Senate unanimously passed the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The Act, signed with no hesitation by President Clinton, creates a federal remedy for victims of two types of state and local  “abuse,” namely, those who feel their religious liberties have been violated by by zoning laws and/or unpleasant institutional (read: prison) arrangements.  Free exercise of religion can not, in other words, be dissed when governments make land use or prison management decisions—unless government officials have a “compelling reason” to act and they use the least restrictive means to do what needs to be done.

If this sounds familiar, it should: Congress passed a similar law in 1993 restricting the activities of state and local officials—the Religious Freedom Restoration Act—which was struck down by the Supreme Court in 1997.  Congress’ Fourteenth Amendment power to enforce guarantees such as religious freedom, Justice Kennedy explained, are broad, but they are not open ended.  Congress does not have the power to create new constitutional rights, as it violates fundamental principles of American federalism:

“The design of the (Fourteenth) Amendment and the text of §5 are inconsistent with the suggestion that Congress has the power to decree the substance of (federal) restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.” (City of Boerne v. Flores 117 S. Ct. 2157).

Congress has navigated around the treacherous waters of the 14th Amendment by basing RLUPIA on the Spending and Commerce Clauses.  Even so, the passage of RLUIPA—in essence, RFRA II—raises a number of federalism-related questions.  Ohio has already decided to challenge the prison portion of the act in two cases; we at the Federalism Project will follow these cases with interest.