Origins of the RLUIPA
Redefining Religious Freedom
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Why was the Religious Land Use and Institutionalized Persons Act passed in the first place? A number of justifications have been offered. Whether or not Congress had authority to pass a law like this will be a crucial issue. In the Boerne v. Flores case, one of the reasons why the RFRA was struck down was because the Court found that the RFRA was not a proper exercise of Congress' power because it contradicted vital principles necessary to maintain separation of powers and the federal state balance.
One of the most superficially appealing justifications is the idea that Congress is permitted to pass laws under the authority of the Fourteenth Amendment if there is a pattern of "widespread and persisting" constitutional violations by the states - the chief restriction being that the solution has to be "proportional and congruent" to those violations.Ê
Well, is there a widespread and persisting violation of religious liberty by the states in the areas of land use and prisoners' rights? At least in the case of local zoning ordinances, the law's supporters really haven't made their case. Senator Kennedy made a statement on the bill which included a list of such alleged violations - but not one of them could not be explained by a neutral reading of the local government's purpose.
If you don't believe this, consider once again just how fast the bill was rushed through Congress. Consider also the fact that not a single zoning official, land use expert, city official, organization representing cities or counties, or historical preservation organization was permitted to testify either in this case or in the earlier proposed bills. Why is that? What were people afraid of learning?
Instead, the hearings were stacked with representatives of religious organizations - meaning that no time was given to allow for a rebuttal to any of the cases given as a reason for the bill in the first place.
It is indeed true that churches bear burdens imposed by local zoning laws and sometimes this can be rather annoying for them. But the fact of the matter is, every other land-owning organization or person also bears these same burdens in the same way, and there is no proof that churches have been the target of special discrimination by local zoning boards. Intentional discrimination may be difficult to prove once alleged, but it is possible to prove it when it exists.
It is also important to make note of the fact that the burdens of generally applicable laws are easily balanced by the fact that religious organizations benefit from generally applicable laws as well. They receive fire and police protection, their buildings' safety is enhanced by the safety standards (e.g., fire codes) which neighboring buildings must adhere to, their services are protected by noise ordinances which limit the noise made by others nearby, etc.
These generally applicable, neutral regulations can indeed be a burden on some of the things we would like to do - but as much of a burden as they are, they can also be a great benefit. Although it might be possible to challenge the justification for some particular land use regulation, it isn't possible to honestly challenge having to follow general rules when you also benefit from them.
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