The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a bad law, through-and-through. Preventing government regulation from creating undue burdens on religious exercise is good, but not, a valid purpose for this law. First, there is little evidence that local governments are engaging in any widespread discrimination against or burdening of religion; Second, this is no right which religious organizations deserve more than non-religious organizations.
Opposition to the RLUIPA
The Religious Land Use and Institutionalized Persons Act creates a difficult situation because there is no consensus about it among traditional supporters of church/state separation. Like the RFRA before it, the RLUIPA was supported by an unusual coalition of religious and civil liberties groups, including the American Civil Liberties Union, Christian Coalition, Family Research Council, and People for the American Way, organization usually on opposite sides in religious disputes.
Terri Schroeder, an ACLU legislative representative, was quoted as stating:
The balance between the needs of religion and the larger community's concerns has been off kilter for far too long. This bill will restore the equilibrium.
So what is really wrong with the Religious Land Use and Institutionalized Persons Act if organizations like the ACLU and PFAW support the it? Aren't they usually on the forefront of attempts to defend the separation of church and state? Well, yes, they are - but in this case, they are on the wrong side.
Opposition has come almost solely from municipalities and local government associations - groups which stand to lose the most if religious organizations can ignore zoning laws. Jane Hague, president of the National Association of Counties, said that she finds it
...profoundly disturbing that one certain kind of property owner will be able to disregard regulations written to protect the common good.
Los Angeles Assistant City Attorney, Anthony S. Alperin said:
Rather than treating religious uses in a fair and equitable way with respect to similar uses, it treats them in a much different and or favorable way...We should treat religious uses the same as other uses. We should treat them from a zoning standpoint on the basis of what their impacts are on the surrounding communities.
The ACLU had the Religious Freedom Restoration Act, but dropped out once they were forced to admit that it would undermine local anti-discrimination laws. Only time will tell if they admit having made a mistake here again.
Establishing Religion with the RLUIPA
The RLUIPA is not designed to help relieve specific burdens placed unjustly on specific religious practices. Instead, it gives religion a type of privilege in for land use which is unavailable to other individuals or organizations, and it gives prisoners greater rights to religious conduct than that which other citizens have.
To put it simply, voluntary and even tangential religious exercise which is practiced by only a single individual can result in a challenge to a local zoning and land use boards. This will then force local government to be liable for civil damages, punitive damages, and attorney's fees. This is no mere accommodation of religion - instead, it is a blatantly unconstitutional preference and benefit.
It is this point which Justice Stephens emphasized in his concurring opinion in Boerne v. Flores:
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law.
Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.
A special set of rights and privileges should not be created for religion, religious beliefs, and religious practices. When our government wishes to do something, it should not have to jump one hurdle before enforcing it upon people in general, but jump a much higher and more difficult hurdle before enforcing it upon religious believers.
Impact on Religion, Churches
What some people have probably failed to notice is that the local perception of churches and religious organizations could very well fall as a result of this. How on earth could a positive perception of them be maintained when they are permitted to bypass basic regulations on things like traffic, noise, and safety? Any organization that is permitted to create a nuisance or endanger the community at will cannot hope to retain community good will.
So the result is that we now have a law which ties the hands of local communities to regulate their neighborhoods in a neutral, non-discriminatory manner, which puts religion on a special pedestal of legal exemptions denied everyone else, and which could easily lead to local hostility towards religious organizations which attempt to and succeed at circumventing local ordinances in pursuit of selfish "me first" policies.
Karl Marx wrote in The Eighteenth Brumaire of Louis Napoleon that "Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce." The first attempt at a national RFRA was indeed a tragedy, one rectified only by a Supreme Court decision.
Is this the farce?