Exercise in Frustration? A New Attempt by Congress to Restore Strict Scrutiny to Governmental Burdens on Religious Practice

Author:Kris Banvard
Position:J.D. Candidate 2003, Capital University Law School.

I. Introduction . A. The Free Exercise Problem: Where? B. The Free Exercise Solution? Enter RLUIPA. C. RLUIPA As Tested In The Courts . D. RLUIPA's Constitutionality. II. Origin of the Act . A. Historical Background. 1.Establishment of strict scrutiny. 2. Return to rational basis. 3. Rational basis and laws of neutral intent. 4. A Short-lived return to strict scrutiny. 5. Post-Boerne Efforts... (see full summary)


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    Kris Banvard: I am grateful to my wife, Paula Deming, for her moral support and infinite patience, not merely during the writing of this comment but always. I also would like to thank Benson Wolman, esq., for his expert advice during the writing of this comment. I thank Professor Susan Gilles for her helpful comments to an early draft, and I thank Professor Daniel T. Kobil for his advice and good counsel in general. I also thank the Capital University Law Review staff for their hard work.
I Introduction
A The Free Exercise Problem: Where?

The United States Constitution declares, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."1 Unfortunately, although the Framers did express their views on free exercise of religion in writing, they wrote about it in the abstract, never specifying where free exercise was supposed to occur.2 This may Page 280 have been because conflicts between government interests and exercise of religion were rare in their day,3 and most Americans shared a common religion.4 In decisions on the Free Exercise Clause, the United States

[I]t may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded agst. by an entire abstinance of the Govt. from interference in any way whatever, beyond the necessity of preserving public order, & protecting each agst. trespasses on its legal rights by others. Page 281

Supreme Court has concentrated more on the what and why of free exercise than on the where and how.5

Religion is practiced from the heart and from the intellect, but religious practice goes beyond the corporal boundaries of each believer.6 Exercise of religion, like every other aspect of life and work in America, requires physical space: Whenever two or more believers congregate, they must have a place to do so.7 Churches8 have expanded beyond their traditional Page 282 role of providing a sanctuary for worship, and these new roles frequently require untraditional uses of land and interactions with neighbors.9 The problem is, as the country has expanded and as people fill almost every habitable space, many Americans have found it difficult to find a suitable place to freely exercise their religion; they discover that the neighbors object, or that the local authorities do not want them there.10 As society grows more complex, such facts of life as zoning codes,11 economics, and the NIMBY - Not In My Back Yard - syndrome conspire to make it more difficult for believers to band together for worship. For one reason or another, they find themselves unwelcome.12 Page 283

Sometimes religious believers find it difficult to meet in each other's houses to pray, because neighbors complain and a local official decides that too many cars are parked on the street.13 Sometimes, the complaint is not as specific as parking, but local governments have vague policy reasons for not wanting believers to carry out the mission of their church in a certain place.14 Or sometimes, governments state more-specific policy reasons for not wanting believers to congregate, the result being that policy trumps free exercise.15 Many times, particularly in older, built-up cities, churches find themselves effectively kept out by zoning laws that exclude them from a large section of a city or that prohibit religious assembly while allowing secular uses that are just as intensive, if not more.16 Often, they are denied permission to build a church after people already living in the area protest loudly enough.17 On one occasion, an entire village was Page 284 incorporated in order to prevent a Jewish synagogue from locating there.18And often, churches may have a building to call home but find that zoning laws forbid them to expand.19

For a certain subset of the general community of religious believers, having a place to worship is not the main issue.20 Rather, these believers are prevented by the government from adhering to practices, strictures, or teachings of their religion, or they are not allowed to obtain religious literature or items deemed essential to ritual and practice.21 This subset of believers contains those whose physical liberty has been curtailed by government action.22 They reside in institutions governed largely under Page 285 uniform rules - specifically, prisons and mental institutions.23 For the sake of institutional safety and orderliness, prison inmates in particular find that their religious practices are constricted - often for reasons seeming to have nothing to do with prison safety and order.24 For example, Muslim inmates in a California state prison were not allowed to grow beards, and prison rules made it difficult for them to attend Friday services.25 In Colorado, a federal prisoner was denied a desired visit from a Methodist minister, because the rules required that the prisoner - not the minister - initiate the request for a pastoral visit; also, because the prisoner was a Buddhist, the warden considered a visit by a Methodist minister to be inappropriate.26 At some prisons, Jewish prisoners have been denied Page 286 matzo,27 even though Jewish organizations have offered to provide it to inmates at no cost to the prison.28

B The Free Exercise Solution? Enter RLUIPA

In response to numerous documented instances of apparent government infringement of free exercise of religion, including some of those mentioned above, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA or the Act).29 When he signed the bill into law on September 22, 2000, President Clinton lauded the Act as guaranteeing much-needed protection for religious liberty.30

Representing the latest attempt by Congress to mandate strict scrutiny as the standard of review in free exercise cases,31 RLUIPA derives its title from the two areas in which its drafters contend that religious practice has been burdened the most by laws, rules, and decisions imposed by state and local governments.32 The land-use sections of the Act are aimed at zoning regulations that limit a claimant's use or development of land or buildings.33 According to its drafters, the Act is aimed at providing a Page 287 remedy to small congregations and minority religions.34 The institutionalized persons provisions of the Act provide protection for persons confined to institutions defined under other federal law, particularly prison inmates.35 In part, RLUIPA is intended to restore strict scrutiny as the test for the constitutionality of state action that substantially burdens religious exercise.36 Among the features of the Act is a definitions section that clarifies "religious exercise" and states that the land-use provisions cover only church buildings used for religious exercise, as opposed to church-owned buildings used for ancillary purposes.37

C RLUIPA As Tested In The Courts

Since the Act was signed into law, a number of lawsuits have been filed in an attempt to gain relief under RLUIPA, and other existing Page 288 lawsuits have been amended to add a RLUIPA claim.38 As of this writing, several decisions in lower federal courts have upheld the constitutionality of RLUIPA, most focusing on the institutionalized persons provisions and one on the land-use provisions. In two of the prison cases discussed at length in this comment, Mayweathers v. Terhune39 and Gerhardt v. Lazaroff,40 United States district courts found the Act to be constitutional. In a third prison case, Johnson v. Martin,41 a United States magistrate Page 289 judge, following Mayweathers but performing a separate analysis, also found RLUIPA to be constitutional. RLUIPA's land-use...

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