RLUIPA and congressional intent.

• Author: Meier, Luke
• Position: Religious Freedom Restoration Act of 1993 - Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States

Today I want to talk about the Religious Land Use and Institutionalized Persons Protection Act, otherwise known by the acronym RLUIPA. Specifically, I want to talk about the portions of RLUIPA that deal with land use more than the institutionalized persons provisions of RLUIPA. I want to try to, in brief fashion, make two quick arguments. One is that the land use provisions of RLUIPA are constitutional. In other words, Congress had the authority under Section 5 of the Fourteenth Amendment to enact those provisions. And two, to the extent that there are constitutional questions about the power of Congress to pass RLUIPA, the current academic debate and current academic literature is missing the primary point, as it is largely devoted to what I think might be a non-issue.

First let's get a little bit of background on RLUIPA. To do that, I have to briefly talk about the dialog between the U.S. Supreme Court and Congress during the decade of the 1990s regarding religious freedom. I'll focus on some slightly different portions of that dialog than what we have heard already. The starting point is Employment Division v. Smith, and we have already learned that Employment Division v. Smith tells us that as long as the law is neutral, and as long as the law is generally applicable, then the religious claimant is not entitled to an exemption from that law even if the law puts a substantial burden on the religious claimant. Of course, American polls have consistently shown that Americans support giving religious claimants a free exercise exemption from laws regardless of whether they are neutral or generally applicable. And as has already been discussed, it did not take long for Congress to attempt to deal with Employment Division v. Smith, through the Religious Freedom Restoration Act (RFRA). RFRA attempted to restore what was perceived by Congress as the pre-Employment Division standard for free exercise. Under this test, religious claimants who have been substantially burdened by a law, regardless of whether it is neutral or generally applicable, are entitled to an exemption unless the government in question can demonstrate compliance with the compelling interest test, which requires not only showing a compelling interest not to grant the exception but also that this government interest is being achieved in the least restricted means available.

RFRA easily passes through Congress with wide support, but of course was eventually struck down by the Supreme Court in City of Boerne v. Flores. The basis for the Court striking down Boerne was the lack of power under Section 5 of the Fourteenth Amendment. To the extent that RFRA was an attempt to alter the...