Calibrating the Balance of Free Exercise, Religious Establishment, and Land Use Regulation: Is RLUIPA an Unconstitutional Response to an Overstated Problem?


The Religious Land Use and Institutionalized Persons Act (RLUIPA) reflects a continuing struggle between Congress and the Supreme Court to define the scope of religious liberties guaranteed by the Free Exercise Clause of the First Amendment. RLUIPA is Congress's second attempt to countermand the Supreme Court's decision in Employment Division, Department of Human Resources v. Smith, which held that the Free Exercise Clause does not require religious exemptions from neutral laws of general applicability that impose a substantial burden on religious exercise. In promulgating RLUIPA, Congress sought to vitiate governmental discrimination against religious individuals and groups in the land use context by mandating strict scrutiny review of land use regulations that impose a substantial burden on religious exercise.

In this Comment, the author argues that RLUIPA cannot be supported as a valid exercise of Congress's enforcement power under Section 5 of the Fourteenth Amendment. RLUIPA cannot be characterized as remedial legislation pursuant to the enforcement provisions of the Fourteenth Amendment because Congress has failed to adduce meaningful evidence of pervasive, unconstitutional religious discrimination in the implementation of local land use regulations. Moreover, rather than codifying or enforcing existing jurisprudence, RLUIPA substantively alters legal doctrine in at least two ways. First, the Act includes an overbroad definition of what constitutes a substantial burden on religious exercise, and thereby modifies the scope of judicially recognized religious liberties. Second, by requiring strict scrutiny review in all cases where a local government is empowered to make an individualized assessment of a religious land use, RLUIPA expands the limited category of cases that trigger strict scrutiny review in the aftermath of Smith. Although federal appellate court decisions generally have upheld the constitutionality of RLUIPA by harmonizing its provisions with existing free exercise jurisprudence, the author maintains that such narrow constructions have not lessened RLUIPA's generally broad and unconstitutional reach. Finally, the author suggests that RLUIPA is a poorly calibrated and potentially counterproductive approach to furthering religious liberty protections in the land use context.

By uclalaw