Religious freedom restoration acts:
More attempts at federal laws: RLPA & RLUIPA
Nearly every religious denomination in the United States --
Protestant, Catholic, Jewish, Muslim, Hindu and even new age sects --
expressed outraged at the U.S. Supreme Court's Boerne v. Flores ruling which declared the earlier Religious
Freedom Restoration Act (RFRA) unconstitutional.
The Religious Liberty Protection Act of 2000 (RLPA), was proposed to "restore
the general rule that state or local officials may not substantially burden religious
exercise." It is quite similar to the original RFRA, and would probably
have been declared unconstitutional if it had become law.
Sponsored by Rep. Charles Canady (R-FL), the bill was passed by the House
on 1999-JUL-15, by a vote
of 306 to 118. Republicans voted overwhelmingly in support of the bill;
Democrats were more evenly split with 107 for and 97 against. The bill passed the Senate Judiciary Committee. Senator
Orrin Hatch (R-UT) introduced it into the Senate during 2000-FEB, where it
The bill would have established:
"a 'strict scrutiny' test for state
and local laws that infringe on the free exercise of religion. The new
standard [would require]... that such laws must further a 'compelling
interest' by 'the least restrictive means.' Under current law, state and
local governments must prove only a 'rational relationship' to the
government’s interest. To trigger a claim against a state or local
government under the [proposed] bill, an individual must demonstrate that
the government 'substantially burdened' his freedom of religion and places
the burden of proof on the government. The measure permits the federal
government to sue state and local governments to enforce compliance with
the so-called strict scrutiny standard." 1
Rep. Tom Udall (D-NM) supported the bill saying:
freedom is the foundation on which our nation was built. Unfortunately, as
we’ve heard throughout this debate, too many people of faith in this
country, particularly those in religious minorities, often find themselves
facing rigid government policies that burden their religious practices.
This bill would prevent government restrictions against religious
practices, unless there is a compelling government interest, and that
policy is the least restrictive method of achieving that interest." 2
RLPA was supported by many fundamentalist and other
evangelical Christian agencies such as the Family Research Council,
Christian Legal Society, Christian Life Commission, National
Association of Evangelicals, Focus on the Family, Prison Fellowship, and the Christian Coalition. It also had the support of the American
Jewish Congress, and National Conference of Catholic Bishops. 3 However, opposition mounted against the bill:
According to American Atheists:
"An anti-RLPA coalition uniting
atheists, [church-state] separationists, health professionals, children's' rights
advocates, neighborhood activists, environmentalists and others began to
slowly emerge. Two months later, a number of key groups including
the American Civil Liberties Union, Americans United for the Separation of
Church and State and others began to abandon the Coalition for the Free
Exercise of Religion. They feared that RLPA could be used to trump
the nation's civil rights laws. Many of these same groups had
supported RFRA and similar bills in individual states, though; others
sought to "carve out" exemptions so modified versions of RLPA
could be enacted." Ellen Johnson, President of American Atheists stated that the RLPA
"establishes two standards in the enforcement of laws. There is the
'compelling interest' test when religious groups are involved, and the
regular civil and criminal statutes for private individuals, groups and
secular nonprofit organizations. That amounts to favoring religion, and
discriminating against everyone in America who is not covered under the
mantle of organized religion." 4
||Some pro-choice groups were concerned that RLPA
could be used by religious groups to get around laws protecting abortion
Some civil rights groups worried that RLPA could give religious groups
the ability to discriminate on racial and other grounds. RLPA could
elevate free exercise of religion to a higher level than civil rights
laws, thus enabling discrimination on the base of race, sex, sexual
orientation, marital status and whatever other basis that a religious
group wanted to discriminate. Representative. Nancy Pelosi (D-CA) commented:
"Certainly we all support the spirit of
[the bill]. In its current form, however, the bill could undermine
existing civil rights laws...It could... undermine ongoing efforts to
extend much-needed legal protections to currently unprotected and
deserving individuals who suffer discrimination. While the [the
measure] was designed to protect an individual’s exercise of
religion from the overreach of government, law, and regulation, I
believe this [bill] would itself overreach and could undermine laws
that prohibit discrimination on the basis of disability, marital
status, and parental status." 5
||Child advocates were concerned that conservative religious groups could circumvent laws protecting children
from abuse, and advocate severe corporal
punishment of children. 6
||Some prison officials opposed RLPA because it would give fundamental
freedoms to inmates. The former are concerned that prisoners will initiate
a flurry of frivolous, nonsensical and costly lawsuits. Others in the
government want an amendment to exclude certain uses of land from the
requirements of the law.
||Some constitutional experts believed that the bill would be unconstitutional on four grounds:
||Its connection to the commerce clause of the Constitution was too
||It violated the principle of federalism and the separation of
powers (as did its predecessor RFRA).
||Its land use provisions were too broad.
||The need for the land use provisions were only supported by
However, in a review of RLPA, the Department of Justice concluded
that, while it raised important and difficult constitutional
questions, they felt that it would be constitutional under past Supreme Court precedents.
The Senate version of the bill was stalled. It was never signed
Religious Land Use and Institutionalized Persons Act. (RLUIPA)
This bill was carved out of the RLPA.13 It has two purposes:
Congressional hearings on the bill found that
an Ohio state refused to provide Muslim prisoners with Hallal food, even though
Kosher food was provided to Jews. Previous hearings heard complaints from:
||To eliminate restrictive municipal zoning regulations that prevent
churches and religious organizations from locating in certain areas.
Some cities and towns have been using zoning regulations to prevent
religious groups from building new structures or moving into existing
buildings. The act would required that there first be a "compelling
government interest" to justify any regulations that place a
"substantial burden" on a church's operation. If
a government did enforce any law, code or statute that limited religious
freedom, it had to do so using "the least restrictive means."
would also apply to house churches and individuals conducting Bible
studies in their homes. These groups have often been targeted by zoning bylaws. During debate
on the bill, sponsors cited several conflicts that, in their opinion,
justified this type of law:
||Some Orthodox Jews in Hancock Park, CA, could not obtain an
exemption from the residential zoning ordinance in order to use a
private home as a synagogue, after a homeowners' association
||A small Christian church was barred from meeting in storefronts
in Rolling Hills Estates, CA, in areas had been zoned for
||A very large Mormon church in the middle of a Boston, MA,
residential area was set to open. Neighbors felt that it threatens the character of their
To guarantee that institutionalized persons (prisoners, and persons in
mental or medical institutions) retain freedom of religious expression, they
would be able to practice their religion as long as it does not
disrupt the security, discipline, or order of their institutions.
Section 3 of the law stipulates that:
"No government shall impose a
substantial burden on the religious exercise of a person residing in or
confined to an institution, unless the burden furthers a compelling
governmental interest, and does so by the least restrictive means." 11
||Jewish inmates who complained that that
prison officials refused to provide sack lunches, which would have
enable them to break a daily fasts after sunset.
||The Michigan Department of Corrections did not allow Chanukah candles to be lit in its prisoners; lighting
of votive candles were permitted.
||A Roman Catholic priest involved in
Oklahoma corrections facilities stated that there were yearly battle
over the use of Sacramental Wine during Mass. Prisoners' religious
possessions, such as the Bible, the Koran, the Talmud or ritual items needed by
Native Americans were frequently treated with contempt. Some were
confiscated, damaged or discarded by prison officials. 11
The bill was supported by a most unusual coalition of religious and
civil liberties groups, including the American Civil Liberties
Association, Christian Coalition, Family Research Council, and People
for the American Way. These are organizations that almost always find
themselves on opposite sides in religious disputes.
||Christopher T. Anders, ACLU legislative counsel, said: "We agreed the government should
not be in the business of regulating people's exercise of their religion."
||Jan LaRue, Family Research Council's senior director of legal studies said: "This legislation doesn't guarantee that a religious claimant will
always win. It only guarantees that claimant a chance."
came from municipalities and local government associations.
Association of Counties asserted that the bill would represent an
"unwarranted and excessive intrusion" into the land-use
authority of local governments.
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 bill was passed unanimously by Congress, in late 2000-JUL. President Clinton
signed it into law on 2000-SEP-22. 7,8
Some lawsuits under RLUIPA:
Three cases involving several Ohio prison inmates were merged into one:
Cutter v. Wilkinson. Some of the petitioners:
members of Asatru, a sect which worships a number of
deities including the Viking god Thor. Others included an ordained minister of
the Church of Jesus Christ Christian, a white separatist church linked to the
racist Aryan Nations movement, as well as a Wiccan and an avowed Satanist. All argued that the Ohio
Department of Rehabilitation and Corrections (ODRC) prevented them from
receiving literature and conducting services, thus violating the Ohio State
Constitution and the federal RLUIPA." 9
They claimed that the state of Ohio "...failed to accommodate their religious
exercise in a variety of different ways, including retaliating and
discriminating against them for exercising their nontraditional faiths, denying
them access to religious literature, denying them the same opportunities for
group worship that are granted to adherents of mainstream religions, forbidding
them to adhere to the dress and appearance mandates of their religions,
withholding religious ceremonial items that are substantially identical to those
that the adherents of mainstream religions are permitted, and failing to provide
a chaplain trained in their faith."
Although the State of Ohio has no problem extending religious
privileges to Christians, it was not willing to grant privileges to inmates of minority
religions. It argued that RLUIPA was unconstitutional because it violated the First Amendment and exceeded Congress' "Spending Clause and Commerce
Clause" authority. The U.S. Department of Justice attempted to defend
RLUIPA. Several advocacy groups, including the American Jewish Congress,
filed Amicus Curia (friend of the court) briefs supporting the act.
In 2001-AUG, a U.S. Magistrate Judge found that the act was constitutional.
This was supported in 2002-FEB by U.S. District Court Judge Edmund A. Sargus,
Jr. But a panel of judges from the Sixth Circuit Court found in 2003-NOV that
RLUIPA violated the First Amendment. They decided this because of:
message of endorsement [of religion, and the fact that the statute] has the
effect of encouraging prisoners to become religious in order to enjoy greater
rights....by enacting RLUIPA, Congress itself has advanced religion by giving
religious prisoners a preferred status in the prison community..." 9
The case was accepted by the U.S. Supreme Court. In a very rare unanimous
decision on 2005-MAY-31, the Court upheld the constitutionality that portion of RLUIPA
which applies to inmates. The court gave no opinion on the real estate portion
of the law. This
guarantees to incarcerated members of minority faiths the same First Amendment rights which
are enjoyed by followers of majority faiths. Justice Ruth Bader Ginsburg noted
in the opinion:
"Should inmate requests for religious accommodations become
excessive, impose unjustified burdens on other institutionalized persons, or
jeopardize the effective functioning of an institution, the facility would be
free to resist the imposition."
Rev. Barry W. Lynn, executive director of Americans United for the
Separation of Church and State wrote:
"This is a sensible decision
that affirms the value of religious freedom while giving correctional
institutions the ability to meet their security needs....This decision
reminds us that government must treat all religions equally. The state
cannot play favorites among religions."
According to the Americans United press release:
"Lynn said the
government must make reasonable accommodations for the religious needs of
incarcerated persons. These types of accommodations, Lynn pointed out, do
not violate church-state separation because they do not adversely affect
third parties and do not require the government to fund or promote religion." 10
Brian Fahling, senior trial attorney for the American Family Association
Center for Law and Policy, agrees with the decision. He said: "It is a
sign of the times, I suppose that it took a witch and a Satanist to secure
the rights of inmates to worship."
Related essay on this web site:
- Scott Galupo, "HR 1691: Religious Liberty Protection Act,"
- Rep. Tom Udall, Congressional Record, 1999-JUL-15.
- "Help support RLPA," Focus on the Family, 2000-MAY, at: http://www.family.org/
- AANEWS news release, American Atheists, 1999-MAY-14.
- Rep. Nancy Pelosi, Congressional Record, 1999-JUL-15.
- AANEWS news release, American Atheists, 1999-MAY-14.
- Religion Today news summary, 2000-JUL-31.
- Catholic World News summary, 2000-SEP-22.
- "Circuit Court strikes down religious 'special rights' statute,"
- "Americans United hails unanimous supreme Court ruling upholding
prisoners' religious freedom," Americans United news release,
- Text of the U.S. Supreme Court decision in Cutter v. Wilkinson,
2005-MAY-31, at: http://straylight.law.cornell.edu/ This is a PDF file. You may require software to read it. Software can be obtained free from:
- "High Court Says Inmates Are Free to Worship," Citizen Link,
Focus on the Family news release, 2005-MAY-31.
- The text of the "Religious Land Use and Institutionalized Persons Act
of 2000" is online at: http://www.rluipa.org/
Copyright © 1998 to 2012 by Ontario Consultants
on Religious Tolerance
Latest update: 2012-JUN-29
Author: B.A. Robinson