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Religious Liberties Bill Gains Final Approval: Congress moves to Federalize Local Land Controls

By Juan Otero, National League of Cities

Late last week, Congress gave final approval to a "compromise" bill supposedly aimed at protecting religious liberties for people in prisons, hospitals, or other institutions and preventing overly restrictive land use regulations for churches, synagogues and other religious bodies.  Both chambers approved the legislation by voice vote.

The bill, S. 2869, the “Religious Land Use and Institutionalized Persons Act of 2000” ("RLUIPA"), interferes with and preempts the traditional and historic rights of local governments. This "compromise" bill is aimed squarely at preempting local authority in the areas of land use decision-making and jail operations.  This measure is a direct attack on local governments’ authority to govern their communities, and arguably, a total contradiction to the principles of federalism this Congress has sought to revive. The Administration has indicated that it that the President would be willing to sign the measure into law if it is sent to him in its current form.

NLC, in coordination, with other state and local government groups has consistently opposed this type of federal intrusion.  NLC plans to work aggressively with cities and towns across the nation in mounting the best possible legal challenges to this legislation.

What does the RLUIPA mean for cities and towns?

Under the measure, local ordinances could be challenged, allowing religious organizations to evade parking restrictions, setback requirements, tree ordinances, drainage requirements, and noise limits.  Communities may be exposed to problems such as traffic congestion, noise pollution, and polluted runoff.  Police and fire vehicles could have difficulties with access.

Simply put, the bill would allow certain groups to disregard the rules as they are applied to everyone else, regardless of the will of the community itself.  According to the measure, religious institutions can be large facilities with activities beyond worship services.  They may include schools, childcare and senior centers, theaters, coffeehouses and fitness facilities.  Public health and safety are obvious issues of concern.  If such institutions were to be granted special status under the law, they would not be held to government standards. Ultimately, the measure will establish a special, federalized land use standard solely applicable to religious institutions, rendering locally approved land use plans and zoning decisions null and void in the context of religious facilities.

Moreover, the “compromise” bill actually encourages litigation between governments and churches as the first resort when disagreements arise, an expense local governments can ill afford.  Proponents of the legislation argued that the land use provisions of the measure are designed to remedy proven patterns of discrimination.  The only comprehensive study of the issue was conducted by an independent researcher at the University of Arizona.  The report published in the National Congregations Study found no pattern of discrimination by cities against religious institutions.

This bill will also restrict the ability of local governments to set appropriate corrections policies.  It would substitute Congress’ judgment for that of local administrators charged with the often dangerous job of incarcerating and supervising criminal offenders.  The effect will be to overturn the Supreme Court’s “reasonableness standard,” and interfere with local governments’ authority to balance the rights of inmates to practice their religion with the security of corrections facilities.

Constitutionality of the Legislation

NLC has asked several constitutional scholars to examine the legislation. The following analysis highlights the serious legal flaws with the approved measure.  There are three sources of constitutional power on which RLUIPA might be based, none of them sufficient.  In addition, there are two independent checks on congressional power that are compromised by RLUIPA, the Constitution’s inherent federalism principles and the Establishment Clause.

1. Section 5 of the Fourteenth Amendment.  For Congress to have the power to enact a law pursuant to Section 5 of the Fourteenth Amendment, there must be a pattern of  “widespread and persisting” constitutional violations by the states and the legislative solution must be “proportional and congruent” to those violations.  After a decade of searching for examples, the supporters of RLUIPA have cobbled together a short string of anecdotes that do not illustrate constitutional violations, and certainly do not illustrate “widespread and persisting” constitutional violations by the states.

While it is true that churches, like every other land-owning entity, bear burdens imposed by land use regulations, there is little, if any, proof that churches have been the targets of discrimination by local zoning boards.  In fact, not a single illustration provided could be subject to a neutral reading of the local government’s purpose.  The drive by a coalition of religious entities to paint local government as intentionally discriminatory is destructively divisive.

The legislative history cites to no reported cases involving discrimination. There is nothing on the record that would show any constitutional violations by the states regarding institutionalized persons, and therefore Section 5 of the Fourteenth Amendment is plainly inadequate to cover the institutionalized persons aspect of the Act.

2.  The Commerce Clause.  Congress lacks power under the Commerce Clause unless the activity being regulated “substantially” affects interstate commerce.  Section 2 of RLUIPA triggers strict scrutiny of state and local government actions where the religious conduct merely “effects” interstate commerce.  It is plainly inadequate and swings far beyond the Supreme Court’s patent statements about the limits on Congress’s power under the Commerce Clause.

3.  The Spending Power.  Under the Spending Clause, there must be a nexus between the activity being regulated and the spending condition imposed.  Under RLUIPA, every time a single federal dollar flows into any local and state program or activity, the entity then becomes subject to strict scrutiny if its generally applicable laws place a substantial burden on a religious entity.  There is no nexus in existence that can explain how the federal government can burden every program touched by federal money (solely for the benefit of religious entities) with such a burdensome level of scrutiny and the surefire likelihood of litigation.

4.  Federalism.   All three of the preceding analyses will be freighted with the inherent principles of federalism that permeate the Constitution and are explicitly stated in the Tenth Amendment.  This is a bill that federalizes one of the last bastions of local, community control: land use.  Moreover, it steps into the core role of the state as sovereign by interfering in local and state operation of state prisoners being incarcerated for violating state law.  If there were ever two arenas asking for protection for an overreaching federal government, it would be these two.  For that reason, the principles announced by the Supreme Court for Section 5, the Commerce Clause, and the Spending Clause will be applied with vigor to RLUIPA.

5.  Establishment Clause.  Even if Congress were found to have the power to pass this extraordinary law, the Establishment Clause would prohibit this blanket handout to religion in the arenas of local land use, prisons, and government hospitals.  RLUIPA is not tailored to alleviate specific burdens on specific religious practices, but rather hands religion a privilege in the land use arena that is available to no other individuals or entity.  RLUIPA requires “broad construction in favor of a broad protection of religious exercise,” extends its privileges to individuals and organizations, and explicitly applies to beliefs that are neither mandatory nor central to a religious belief system.  In other words, purely voluntary, tangential religious exercise, practiced by only a single individual, can trigger a challenge to a local land use board under this act, and subject local government to actual damages, punitive damages, and attorney’s fees.