Legislating the free exercise clause: congressional power and the Religious Land Use and Institutionalized Persons Act of 2000.

• Author: Wallwork, Adam

Abstract

This Article evaluates Congress' constitutional authority to resurrect the "compelling state interest" test in the context of local zoning and landmark ordinances that impose a substantial burden on religious exercise. It analyzes the constitutionality of the three land use provisions of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") from the perspective of the Spending Clause, the Commerce Clause, and Section 5 of the Fourteenth Amendment.

This Article then uses empirical data regarding religious building projects and zoning appeals in the city of Chicago to illustrate contemporary patterns of discriminatory land use regulation in a major American city. Based on this data, the Article concludes that RLUIPA's land use provisions are a constitutional means of preventing widespread discrimination against religious minorities pursuant to facially neutral zoning and landmark laws.

INTRODUCTION

1. BACKGROUND A. The Role of Congress in Protecting Religious Freedom B. The Smith Decision and the Religious Freedom Restoration Act of 1993 C. City of Boerne v. Flores D. The Religious Land Use and Institutionalized Persons Act of 2000 E. The Structure of RLUIPA II. THE CONSTITUTIONALITY OF RLUIPA'S SPENDING CLAUSE PROVISION III. THE CONSTITUTIONALITY OF RLUIPA'S INTERSTATE COMMERCE PROVISION A. Specific Commercial Transactions involving Interstate Commerce B. Aggregate Effect on Commerce IV. THE CONSTITUTIONALITY OF RLUIPA'S INDIVIDUALIZED ASSESSMENT PROVISION A. Data on Erroneous Denials of Zoning Applications B. Data on Religious Buildings V. CONCLUSION INTRODUCTION

   This Article examines the roles of the United States Congress, the Supreme Court, and the states in expanding and contracting the protection of religious land use during the 1980s and 1990s. It focuses on the constitutionality of three provisions of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), in which Congress sought to prohibit local zoning and landmark ordinances that substantially burden" churches and other places of worship. (1)

   Land use regulations are ordinarily within the provenance of local governments. Justice Ginsburg, writing for a unanimous Supreme Court, explained that a federal law applicable to "[p]ractically every building in our cities, towns, and rural areas ... constructed with supplies that have moved in interstate commerce" would raise "grave and doubtful constitutional questions." (2)

   Partly in response to this concern, Congress narrowly crafted RLUIPA to address religious discrimination in local government. First, RLUIPA prohibits landmark and zoning laws that expressly discriminate against religious institutions or exclude them from an area. Second, RLUIPA forbids zoning and landmark laws that impose "substantial burden[s]" on religious land use unless the government can prove the burden was the "least restrictive" means of furthering a "compelling government interest." (3) The Supreme Court has not ruled on Congress' power to enact RLUIPA under the Commerce Clause, the Spending Clause, or Section 5 of the Fourteenth Amendment ("Section 5"). Even so, Justice Thomas' concurrence in Cutter v. Wilkinson expressed serious doubts regarding whether the Constitution permitted Congress to enact such a statute but declined to reach the issue because it had not been ruled on by the Court of Appeals. (4) The Court's decision in Cutter upheld the constitutionality of RLUIPA against an Establishment Clause challenge brought by prisoners who belonged to non-mainstream religions. (5) As Justice Thomas explained, the parties neither briefed nor argued any other constitutional issue. (6) The Court in Cutter ruled that RLUIPA's protection of religious prisoners did not endorse or sponsor religious exercise, but Justice Thomas correctly noted that Cutter did not resolve the more basic questions about Congress' authority to enact RLUIPA and enforce its provisions against state and local governments. (7)

   These questions have become more acute in the wake of the Supreme Court's landmark decision in National Federation of Independent Businesses v. Sebelius. (8) That case upheld the Affordable Care Act's ("ACA") "individual mandate" under Congress' Taxing Power but held that the ACA's "healthcare expansion" provision exceeded Congress' Spending Power. (9) Consequently, Chief Justice Roberts' narrow construction of Congress' Commerce and Spending Powers in National Federation of Independent Businesses established important limits on two of the three legislative powers Congress invoked to justify RLUIPA.

   This Article analyzes the constitutionality of RLUIPA's land use provisions in light of Supreme Court decisions that constrain Congress' legislative powers under the Spending Clause, (10) the Commerce Clause, (11) and Section 5 of the Fourteenth Amendment. (12) Part I briefly describes the background, legislative history, and structure of RLUIPA. Part II evaluates Congress' Spending Clause rationale for RLUIPA in light of National Federation of Independent Businesses v. Sebelius and asks whether Congress has the power to demand compliance with RLUIPA in any "program or activity that receives Federal financial assistance." (13) Part III then uses empirical tools to assess whether Chicago's zoning and landmark ordinances impose "substantial burdens" on religious land use. This Part relies on estimated costs of religious building projects in Chicago over an eight-year period to illustrate the substantial impact that zoning restrictions on religious institutions' real property have on interstate commerce. Finally, Part IV considers whether RLUIPA's religious land use provisions are within Congress' power to "enact appropriate remedial and preventive measures" to combat patterns of religious discrimination by local zoning officials. Part IV also uses data on religious buildings in Chicago to argue that RLUIPA's land use provisions are, if anything, under-enforced.

1. BACKGROUND

   1. The Role of Congress in Protecting Religious Freedom

      The principle of judicial review embodies the view that courts, particularly the United States Supreme Court, define the scope of federal powers and individual rights enumerated by the United States Constitution. As Chief Justice Marshall famously said in Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is." (14) Modern Supreme Court decisions delegate the task of constitutional interpretation entirely to the courts. Under Chief Justice Rehnquist and Chief Justice Roberts, the Supreme Court has gradually restricted the scope of Congress' most important legislative powers under Article I [section] 8 and Section 5 of the Fourteenth Amendment of the Constitution. In recent years, Chief Justice Roberts and Justices Thomas, Scalia, Alito, Kennedy, and O'Connor have expressed deep skepticism about Congress' broad claims of federal power to regulate the states. As a result, Supreme Court decisions from 1980 to 2000 narrowly construed the scope of Congress' power to tax and spend, regulate commerce, and enforce the Fourteenth Amendment.

      RLUIPA, along with its predecessor, the Religious Freedom Restoration Act of 1993 ("RFRA"), is part of a larger struggle between Congress and the Supreme Court over the scope of federal powers and meaning of the Free Exercise Clause. Congress' efforts to expand federal protections of religious exercise by enacting the RLUIPA pitted their efforts against the Court's narrowing of the Free Exercise doctrine. As Justice Kennedy explained in City of Boerne v. Flores, decided in 1997, "Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept, of Human Resources of Oregon v. Smith," which reversed nearly three decades of Free Exercise Clause jurisprudence. (15)

   2. The Smith Decision and the Religious Freedom Restoration Act of 1993.

      With the notable exceptions of Lyng v. Northwest Indian Cemetery Protective Ass'n and Bowen v. Roy, the Supreme Court's Free Exercise jurisprudence from 1963 to 1990 required "strict scrutiny" of laws that "burden" religious persons. (16) Of this era, Sherbert v. Verner and Wisconsin v. Yoder are the seminal cases that applied a "strict scrutiny" analysis to a state law in question. (17) In Sherbert, the Supreme Court sustained a Seventh-Day Adventist's right to receive unemployment benefits denied to her because she refused to work on her Sabbath day. (18) The Court held that "any incidental burden on the free exercise of [the Seventh-Day Adventist's religion may [only] be justified by a 'compelling interest in the regulation of a subject within the State's constitutional power to regulate....'" (19)

      Nine years later, in Yoder, Chief Justice Burger, writing for himself and five other Justices, applied a similar principle of "substantive" neutrality to exempt members of the Old Order Amish from Wisconsin's mandatory school attendance requirement. (20) While Chief Justice Burger's Yoder decision acknowledged that Wisconsin's law "does not discriminate against religion," he explained that "[a] regulation neutral on its face may, in its application," discriminate against religions "if it unduly burdens the free exercise of religion." (21)

      In 1990, the Supreme Court reversed its course in Employment Division v. Smith. (22) The facts of Smith were analogous to Sherbert. (23) The plaintiffs, Alfred Smith and Galen Black, ingested peyote during a Native American Church ceremony. (24) However, both Oregon law and federal law prohibited the possession or use of peyote. (25) When the plaintiffs' employer, a substance rehabilitation center, administered a random drug test to Smith and Black, both tested positive for peyote and both were terminated from their jobs. (26) Like Sherbert, Smith and Black sought unemployment benefits, but their claims were denied because Oregon's Employment Division concluded that their ingestion of...