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So why do we need RLUIPA?

Written by Daniel P. Dalton on February 23, 2015 Category: RLUIPA

To understand why we need RLUIPA, we needed to understand why the law was passed in 2000. RLUIPA finds its genesis in the 1963 decision of Sherbert v. Verner, where the United States Supreme Court held that government burdens on religious exercise violate the First Amendment’s Free Exercise Clause unless justified by interests of the highest order. The case arose when Adell Sherbert, a Seventh day Adventist, was fired from her job at a textile mill when she refused to work on her Sabbath. After her discharge, she sought unemployment compensation. The state of South Carolina denied her application pursuant to a state statute withholding benefits from those who “fail, without good cause, to accept suitable work when offered.” Sherbert sued, claiming that the state had violated the Free Exercise Clause. The state courts ruled against her, but she persuaded the U.S. Supreme Court to take her case.

In assessing Sherbert’s claim, the Court utilized what came to be known as “strict scrutiny” or the “compelling governmental interest” test. In an opinion authored by Justice William Brennan, the Court observed that “[o]nly the gravest abuses, endangering paramount interest, give occasion for permissible limitation.” In other words, even if the government identifies a compelling interest, it must prove that burdening the claimant’s religious exercise is the least restrictive means of advancing that interest.

The Supreme Court unexpectedly abandoned the Sherbert approach to free exercise in Employment Division v. Smith. The case arose when two members of the Native American Church were fired from their jobs for ingesting peyote (an illegal drug) for sacramental purposes. The state of Oregon rejected their applications for unemployment compensation, concluding that they had been discharged for work-related “misconduct,” and were thus statutorily ineligible for benefits. Their case reached the U.S. Supreme Court, which shocked most observers by largely abandoning “strict scrutiny.” The Court concluded that facially neutral laws of general applicability burdening religious exercise generally require no special justifications to satisfy Free Exercise scrutiny. The Court held that, “the sounder approach [to challenges to generally applicable criminal prohibitions], and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. “

Disappointment with the majority’s opinion gave birth to a large number of religious and civil rights organizations promptly formed the Coalition for the Free Exercise of Religion to urge Congress to restore strong legal protection for religious liberty. The 68-member Coalition included the Baptist Joint Committee for Religious Liberty, the American Jewish Congress, Americans United for Separation of Church and State, Christian Legal Society, the American Civil Liberties Union, Agudath Israel of America, and the National Association of Evangelicals. They understood that such heightened protection was necessary to protect this fundamental American liberty.

When the Religious Freedom Restoration Act (“RFRA”) was passed in 1993, the bill was supported by one of the broadest coalitions in political history, with sixty-six religious and civil liberties groups, including Christians, Jews, Muslims, Sikhs, Humanists, and secular civil liberties organizations. RFRA was introduced in the House by then Representative Charles Schumer and it attracted no less than 170 co-sponsors from both political parties. The bill was unanimously approved in committee, and, after years of congressional hearings, the full House subsequently passed the bill by a unanimous vote.

The Senate’s companion bill was jointly presented by Senators Orrin Hatch and Edward Kennedy. It garnered a bipartisan group of 58 co-sponsors and passed the full Senate by a vote of 97-3. In his signing remarks, President Clinton noted “what a broad coalition of Americans came together to make this bill a reality,” and that “many of the people in the coalition worked together across ideological and religious lines.” The President praised “the shared desire . . . to protect perhaps the most precious of all American liberties, religious freedom,” even joked that “the power of God is such that even in legislative process miracles can happen.”

After the Supreme Court struck down the portion of RFRA that applied to the states, Congress investigated state- and local-level burdens on religious freedom. It amassed evidence in nine congressional hearings that took place over the course of three years. Congress determined it was necessary to pass an additional law “to address ‘those areas of law where the congressional record of religious discrimination and discretionary burden was the strongest’: laws governing institutionalized persons (i.e., prisoners and persons in mental institutions) and land use laws.” Thus, RLUIPA was proposed and, like RFRA, it was enacted with overwhelming bipartisan support. It passed both the House and Senate by unanimous consent and it was signed into law by President Clinton on September 22, 2000. In his signing statement, President Clinton expressly applauded “Senators Kennedy, Hatch, Reid, and Schumer, and Representatives Canady and Nadler for their hard work in passing this legislation,” and noted that RLUIPA “once again demonstrates that people of all political bents and faiths can work together for a common purpose that benefits all Americans.”

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.