arly Thursday evening, and despite growing opposition and calls for further study, the U.S. Senate suspended rules and passed the controversial Religious Land Use and Institutionalized Persons Act, S. 2869. The measure is considered a scaled-back version of the Religious Liberty Protection Act (RLPA) which has languished on capitol hill for over two years. RLPA, in turn, was the successor to the Religious Freedom Restoration Act, RFRA, which had been overturned by the U.S. Supreme Court in the 1997 BOERNE v. FLORES decision.

    RLUIPA focused primarily on land use and zoning laws. The measure requires that government, including local municipalities, employ a "compelling interest/least restrictive means" test when dealing with faith-based groups and practices. American Atheists had joined with other organizations in opposing the legislation, and charged that RLPA and RLUIPA violated the separation of church and state.

    It is the second time this week that federal legislators voted to "suspend the rules" and fast-track legislation that affected the separation of church and state. The move is a strategy which limits debate, and requires that the legislation be voted on within two days. A third-thirds majority is necessary for passage.

    Thursday's fast-track strategy, orchestrated by Utah Republican Sen. Orrin Hatch and Sen. Ted Kennedy of Massachusetts, occurred just hours after the New York Times editorialized about RLUIPA, saying "the first responsibility of Congress is to slow things down and allow for hearings on a complicated matter that has received not nearly enough public debate about its potential consequences."

    Hatch praised the Senate action, saying that RLUIPA was necessary to guarantee the rights of prisoners and mental health patients who had ostensibly been prevented from practicing their religious faith. Rep. Charles Canady promised action in the House, charging that in some municipalities, city officials would "deliberate exclude all new churches from an entire city, others refuse to permit churches to use existing buildings that nonreligious assemblies had previously used and some intentionally change a zone to exclude a church."

    Critics charged that the those sorts of claims often distorted the actual circumstances. Land use and environmental groups came out in opposition to RLUIPA, arguing that the measure would allow churches and other religious sects to effectively circumvent zoning and other regulations which private individuals and groups would still have to obey. Today's N.Y. Times editorial referred to the battle over plans by St. Bartholomew's Episcopal Church to construct a 47-story tower on a piece of land, a scheme that was rejected by both the city council and the courts. N.Y. Mayor Rudolph Giuliani came out against the legislation, and wrote to New York's two senators this week saying that RLUIPA threatened to "federalize an area which is inherently a matter of local concern."

    Even some religious conservatives argued against RLUIPA and its predecessor, the Religious Liberty Protection Act, fearing that the legislation required undue reliance on the commerce clause of the Constitute for its enforcement.

    Representatives of some of the organizations which have been lobbying against RLPA and RLUIPA have said that they will seek a constitutional test of the legislation.

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