Modifying the Religious Land Use and Institutionalized Persons Act to create a constitutional statutory protection for religious landowners.

• Author: Witt, Sara

Your home sits in a residential zone where a special-use permit is required for certain activities. A neighbor seeks to lease his home to a residential drug and alcohol rehabilitation center of which he is the president. The center would house more than ten residents, most of whom are recovering drug addicts or alcoholics with criminal records; in order to house this number of unrelated persons, a special-use permit is required. Your neighbors have voiced concerns about the compatibility of the center with the residential character of the area and the perceived threat to neighborhood safety. When your local planning commission ultimately denies the permit based on compatibility concerns, you are relieved.

However, soon the commission is taken to court under a federal statute that gives religious organizations special rights in land-use disputes--yes, the president of the center refers to it as a "Christian discipleship program"--so you may soon have new neighbors. (1)

Now consider the purchase of a building near your home by an Orthodox Jewish congregation consisting of less than forty members who propose to meet there for Saturday services. They too need a special-use permit from the local board, because all religious organizations seeking to locate in the town must receive such a permit; they too are denied. The board's reason for the initial denial is insufficient parking and its reason for the second denial, after the congregation modifies the plan to include more parking spaces, is traffic congestion. The board stands by this reasoning even though it is repeatedly reminded that Orthodox Jews do not drive on Saturday, the day they will be gathering in the building to worship. The congregation, too, may be eligible for relief under the federal statute protecting religious landowners. (2)

These two scenarios illustrate why the passage of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") (3)--particularly the provisions pertaining to land-use--has generated so much controversy. (4) While some scholars argue that it gives religious organizations an unconstitutional legal weapon in land-use disputes, (5) others promote it as a long-overdue mechanism to place religious organizations on a level playing field with other landowners. (6) This Comment assesses these arguments and ultimately concludes that, in enacting RLUIPA, Congress exceeded its Fourteenth Amendment enforcement power. However, unlike some commentaries on the subject, this Comment will not suggest that RLUIPA is fatally flawed--rather, this Comment will propose modifications that would render RLUIPA constitutional under Congress's enforcement power. This Comment will not consider the constitutionality of RLUIPA's land-use provisions under the Spending and Commerce Clauses. (7)

Part I will provide background regarding Free Exercise Clause jurisprudence, RLUIPA's legislative history, and Congress's enforcement power, one basis Congress claimed as giving it authority to enact RLUIPA and its unconstitutional predecessor, (8) the Religious Freedom Restoration Act ("RFRA"). (9) Part II will argue that enactment of RLUIPA was outside Congress's Fourteenth Amendment enforcement power. Specifically, it will consider whether RLUIPA codifies Supreme Court precedent and whether the Act is "congruent and proportional" to the harm it seeks to remedy. Part II will ultimately conclude that neither of these tests is met. Part III will argue that some statutory protection is necessary for those seeking to use land for religious purposes and will suggest how RLUIPA may be modified so as to provide this protection while remaining within the confines of the enforcement power.

1. BACKGROUND

   1. Free Exercise Clause Jurisprudence

      "Congress shall make no law ... prohibiting the free exercise [of religion]." (10) The Supreme Court first interpreted the clause in 1879. (11) Until the 1960s, the Court generally did not require that the government exempt persons engaging in religious conduct from adhering to laws enacted to promote safety and welfare. (12) Furthermore, Free Exercise claims were often coupled with other constitutional claims enabling the Court to decide cases on alternative grounds--for example, the Court overturned city ordinances requiring permits to distribute literature on public streets on freedom of speech and press grounds, rather than on Free Exercise grounds even though those convicted of violating the ordinances had been distributing religious literature. (13) Thus, the extent of the clause's protections remained unclear.

      However, in 1963, the Court established the first major exception for religious activity; the Court held that in certain circumstances, those engaging in religious activity need not adhere to certain public safety and welfare laws. In doing so, the Court clarified the scope of protections provided by the Free Exercise Clause. In Sherbert v. Verner, (14) the Court held that a state unemployment compensation law that substantially burdened religious practice violated the Free Exercise Clause because the law did not meet strict scrutiny. (15) Thus, the Court created the Sherbert exception, which exempted those engaging in religious activity from adhering to the law in certain circumstances; the exception provides that where a law substantially burdens religious practice, the law must meet strict scrutiny in order to not run afoul of the Free Exercise Clause. Until 1990, the Court continued to apply the Sherbert exception. (16) Though arguably the courts employing Sherbert did not apply strict scrutiny with the same rigor as in other areas, (17) they did, nonetheless, employ it.

      In 1990, the Court imposed a substantial limitation on the Sherbert exception. In Employment Division v. Smith, (18) the Court held that Sherbert does not provide an individual with an exemption from a generally applicable criminal law, even if the law substantially burdens the individual's religion. In other words, the Court limited the Sherbert exception by providing that a "neutral and generally applicable" law that substantially burdens religion need not meet strict scrutiny in order to pass constitutional muster. Thus, after Smith, the Sherbert exception applied to a much narrower class of laws. In the context of the Free Exercise Clause, the strict scrutiny standard only applied to laws that (1) impose a substantial burden on religion and (2) are not "neutral and generally applicable." Some suggest that the Sherbert exception is further limited to unemployment compensation cases alone. (19) However, circuit courts addressing the issue have declined to so interpret the Smith limitation on Sherbert. (20)

      Though the Sherbert-Smith line of cases clarifies the scope of the Free Exercise Clause, the cases prompt additional questions: What constitutes a "neutral and generally applicable" law?; (21) At what point does a burden on religion become "substantial"?; (22) And, finally, what activities involve "religious practice"? (23) As the next section suggests, RLUIPA and its predecessor represent Congress's attempt to answer some of these questions.

   2. RLUIPA's Legislative History

      Congress was displeased with the limitations the Smith Court placed on the Sherbert exception. In response, it passed Religious Freedom Restoration Act ("RFRA") (24) in 1993. RFRA's explicitly stated purpose was to "restore the compelling interest test as set forth in Sherbert ... and to guarantee its application in all cases where free exercise of religion is substantially burdened." (25) Thus, RFRA was Congress's attempt to overrule Smith. Under RFRA, the characterization of a law as "neutral and generally applicable" was no longer relevant. (26) Congress justified this position by a finding that, "in ... Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." (27)

      Less than five years later, the Court declared RFRA unconstitutional in City of Boerne v. Flores. (28) The Court held that Congress had exceeded its enforcement power in enacting RFRA. (29) The Court stated: "RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior* It appears, instead, to attempt a substantive change in constitutional protections." (30) Since Congress's enforcement power is limited to remedial measures and Congress may not use the power to create a substantive change in the law, the Court held RFRA unconstitutional. (31)

      Congress's response to City of Boerne came in 2000 (32) when it passed RLUIPA. RLUIPA varied from RFRA in several significant respects. Its scope was much narrower than its predecessor's--its protections were limited to (1) land-use decisions affecting religion and (2) policies of institutions affecting institutionalized persons' practices of religion. (33) Also, Congress claimed authority to enact RLUIPA under not only its Fourteenth Amendment enforcement powers, but also under the Commerce and Spending Clauses. As this Comment focuses on the validity of the land-use provisions of RLUIPA under the enforcement power, the provisions relating to institutionalized persons and Congress's authority to enact RLUIPA pursuant to the Commerce and Spending Clauses is outside the Comment's scope. Note, however, that the Court has upheld the provisions relating to institutionalized persons; (34) also commentators have argued, and lower courts have held, that the Commerce and Spending Clauses do not justify RLUIPA. This leaves the enforcement power as the only grounds upon which RLUIPA may be constitutionally valid. (35)

      The relevant part of RLUIPA, Section Two, (36) deals with land-use decisions affecting religion. It provides:

      No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise...