Religious freedom restoration acts:

More attempts at federal laws: RLPA & RLUIPA

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RLPA: The rebirth of the federal RFRA:

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 was stalled.

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:

"Religious 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 clinics.
	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 weak. 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 anecdotal evidence. 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 into law.

Religious Land Use and Institutionalized Persons Act. (RLUIPA)

This bill was carved out of the RLPA.₁₃  It has two purposes:

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." It 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 objected. A small Christian church was barred from meeting in storefronts in Rolling Hills Estates, CA, in areas had been zoned for commercial activity. 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 community.

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."

Opposition came from municipalities and local government associations.

	The National 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:

"...were 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:

"it's 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:

How to obtain the text and status of federal government bills

References:

1. Scott Galupo, "HR 1691: Religious Liberty Protection Act," at Voter.com
2. Rep. Tom Udall, Congressional Record, 1999-JUL-15.
3. "Help support RLPA," Focus on the Family, 2000-MAY, at: http://www.family.org/
4. AANEWS news release, American Atheists, 1999-MAY-14.
5. Rep. Nancy Pelosi, Congressional Record, 1999-JUL-15.
6. AANEWS news release, American Atheists, 1999-MAY-14.
7. Religion Today news summary, 2000-JUL-31.
8. Catholic World News summary, 2000-SEP-22.
9. "Circuit Court strikes down religious 'special rights' statute," AANews, 2003-DEC-20.
10. "Americans United hails unanimous supreme Court ruling upholding prisoners' religious freedom," Americans United news release, 2005-MAY-31.
11. 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: 
12. "High Court Says Inmates Are Free to Worship," Citizen Link, Focus on the Family news release, 2005-MAY-31.
13. 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

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