The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) was passed for the purpose of aiding religious landowners and prisoners in bringing challenges to laws that substantially burden their religious conduct. RLUIPA is the successor statute to the Religious Freedom Restoration Act (RFRA), which mandated strict scrutiny against every law in the United States that substantially burdened religious entities. RFRA was held unconstitutional in City of Boerne v. Flores (1997), on states rights, separation of powers, and Article V grounds.
RLUIPA creates a cause of action for religious landowners to challenge land use laws and for prisoners to challenge prison regulations, and requires the application of strict scrutiny to those laws. It was intended to circumvent the constitutional defects of RFRA, and it provided the same incentive to lawyers to bring lawsuits for religious institutions, a fee-shifting provision, which accounts in part for the relatively large number of cases filed under it.
RLUIPA is an odd pairing of interests, to be sure. It was the result of religious organizations that were disappointed when RFRA was held unconstitutional, but incapable of persuading Congress to mount another law with the same scope. Concerns about RFRA’s impact on children and other issues made the broad-based approach of RFRA untenable. The religious organizations then focused on two particular arenas: land use and prisons, and succeeded in getting that combination passed. President Clinton signed the bill into law in September 2000.
The land use provisions were premised on Section 5 of the Fourteenth Amendment, the commerce clause, and the spending clause. The spending clause is rarely invoked, because little federal funds go toward local land use planning. With respect to Section 5, RLUIPA’s sponsors relied on hearings held on the never-enacted Religious Liberty Protection Act (RLPA), at which religious entities testified regarding difficulties faced by religious institutions in the land use process. The commerce clause is invoked through a ‘‘jurisdictional element,’’ which states the law applies to ‘‘any case in which ... the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability.’’
The primary impediment for religious entities seeking relief under RLUIPA’s land use provisions has been the burden of proving that the application of the particular land use law imposed a ‘‘substantial burden.’’ In Civil Liberties for Urban Believers v. Chicago (2003), the U.S. Court of Appeals for the
Seventh Circuit explained the standard as follows: [I]n the context of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise—including the use of real property for the purpose thereof within the regulated jurisdiction generally—effectively impracticable.
Constitutional challenges to the land use provisions are working their way through the courts, with no decisions in the federal courts of appeals as of early 2004. The challenges argue that RLUIPA is an unconstitutional exercise of Congress’s power under Section 5 of the Fourteenth Amendment and the commerce clause, and violates states rights, the establishment clause, and the equal protection clause.
The prison provisions were premised on the commerce clause and the spending clause. It prohibits the imposition of a substantial burden on the religious exercise of a prisoner in any case which, ‘‘the substantial burden is imposed in a program or activity that receives Federal financial assistance; or the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.’’
Judicial decisions in response to constitutional challenges to date have focused on whether RLUIPA’s prison provisions violate the First Amendment’s establishment clause. To date, at least four circuits have addressed the question, with the U.S. Court of Appeals for the Sixth Circuit holding it is unconstitutional (Cutter v. Wilkinson ), while the Fourth Circuit in Madison v. Riter (2003), the Seventh Circuit in Charles v. Verhagen (2002), and the Ninth Circuit in Mayweathers v. Newland (2002) have upheld RLUIPA’s constitutionality. The Supreme Court is likely to take up the issue in the near future.
There were virtually no hearings on prisons during the hearings on RLPA, making a defense of the law under Section 5 of the Fourteenth Amendment virtually impossible.
MARCI A. HAMILTON
References and Further Reading
Cases and Statutes Cited
See also City of Boerne v. Flores, 521 U.S. 507 (1997)