ate Thursday night, supporters of the Religious Liberty Protection Act dropped their newest version of the measure on the Senate Judiciary Committee, in hopes of quick votes in both legislative chambers on the so-called Religious Land Use and Institutionalized Persons Act of 2000 (S2869). Capitol hill sources described the RLUIPA as a scaled-backed version of RLPA that devotes most of its attention to guaranteeing religious groups special rights on land use, zoning, environmental issues and related issues. The impact of the measure would go far beyond zoning squabbles, though, and critics point out that the RLUIPA -- like the RLPA -- would require governments to employ a cumbersome "compelling interest/least restrictive means" test when dealing with faith-based groups and practices.

    In short, RLUIPA gives sectarian groups enormous legal powers and privileges.

    "This is the same old 'special rights' legislation we encountered with RLPA and the earlier Religious Freedom Restoration Act," warned Ellen Johnson, President of American Atheists. "They keep introducing the same bill over and over, and now they think this one will sneak through the House and Senate because it concentrates on 'land use.' But it still gives sectarian groups an unfair and powerful legal instrument."

    In an op-ed piece appearing in today's New York Times, constitutional attorney Marci A. Hamilton warned that the legislation, if passed, would "have the real effect of attacking the First Amendment's directive that 'Congress shall make no law respecting an establishment of religion.' "

    "Billed as an attempt to preserve religious liberty, this proposed law on 'religious land use' would actually grant special privileges to religious construction, allowing houses of worship to evade local laws that have been passed for valid reasons and that everyone else in the community must obey," Hamilton continued.

    Hamilton was lead attorney for the City of Boerne, Texas in the historic 1997 case BOERNE v. FLORES. In a 6-3 vote, the U.S. Supreme Court struck down the original version of the current legislation, then known as the Religious Freedom Restoration Act. Despite the defeat, RFRA measures have proliferated in state capitals throughout the country; and in 1998, the measure was reintroduced on Capitol Hill as the Religious Liberty Protection Amendment.

   Originally, RFRA and then RLPA enjoyed almost unanimous support from America's religious community. A coalition including Catholic, Protestant, Jewish, Islamic, humanist, new age and other groups called for the defense of "religious rights." American Atheists, though, pointed to the decision of Justice John Paul Stevens in the BOERNE v. FLORES case, where he warned that this legislation violated the constitutional separation of church and state, and provided religious groups with a legal instrument which "no atheist" could obtain.

    A number of groups supporting the Coalition and RLPA withdrew last year, though, amidst mounting opposition and concerns that the measure would allow faith-based sects to evade anti-discrimination laws and other civil rights protections. Liberal organizations sought to compromise on RLPA -- and the Religious Land Use and Institutionalized Persons Act of 2000 is the fruit of that effort. As a result, some of the groups which originally backed RFRA and RLPA, and then left, are now back on board with this "special rights" legislation. They include the Baptist Joint Committee, American Jewish Congress, Christian Legal Society and the ACLU. The sponsorship of power hill politicians in the House and Senate -- Kennedy, Hatch, Bennet, Lieberman, Schumer, Canady, Nadler and Edwards -- also shows that political and religious groups have once again closed ranks on the RLPA issue.

   Despite it's title, though, the Religious Land Use and Institutionalized Persons Act of 2000 is fraught with most of the same constitutional pitfalls found in the earlier RLPA and RFRA. The measure continues to be opposed by groups like the National Trust and other neighborhood preservation and environmental groups since it gives churches and sectarian denominations carte blanche in ignoring zoning statutes. Worse yet: the language of RLUIPA still uses a "compelling interest/least restrictive means" test -- for land use. Parts of the measure expand that notion, though, well beyond questions involving zoning or land utilization. Section 5 ("Rules of Construction") states explicitly that nothing in the Act shall be used to affect or regulate either religious exercise or belief. "A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden..."

    Some religious organizations have opposed RFRA and RLPA, worried that the force of the Act relies heavily on the power of the federal government to use interstate commerce and the money clause of the Constitution for its legal rationale. Indeed, RLUIPA depends the same legal authority, citing "commerce with foreign nations, among the several States, or with Indian tribes."

    Liberal and conservative groups signed-off for the new RLPA version in part because of the "institutionalized persons," i.e. prison angle. As reported last week in AANEWS, James Dobson (Focus on the Family), Charles Colson (Prison Fellowship Ministries) and the American Civil Liberties Union all waffled over the 1998 version of RLPA because they wanted prison inmates covered under the legislation. RLUIPA includes such language, meaning that those incarcerated in prisons and jails will now have considerable latitude to exercise "religious rights" -- everything from special diets and prayer observances to regulations which some worry could even affect security.

    The big question is why some liberal groups originally backed the old Religious Freedom Restoration Act, then jumped ship over RLPA -- which had the same language and legal force -- when concerns were raised about the measure's potential impact on civil rights? Equally puzzling is why these same organizations and leaders who have traditionally supported anti-discrimination measures would risk endangering those hard-won guarantees with the introduction of the Religious Land Use and Institutionalized Persons Act of 2000.

    RLUIPA, like its predecessors, is probably unconstitutional and invites legal challenge. It would provide religious groups -- both "mainstream" denominations and extremist cults -- considerable latitude by permitting them to "pick and choose" which laws, statutes and regulations they will and will not follow. Like RLPA, the Religious Land Use and Institutionalized Persons Act clearly discriminates in favor of organized religious beliefs, groups and practices; it creates a dual-standard of justice. Like the old Religious Freedom Restoration Act (RFRA), the Kennedy-Hatch amalgam provides faith-based groups with a legal instrument which "no atheist," or any other private individual, business or secular group, could ever hope to obtain.

[text only]