federal law meant to establish extraordinary protections for religious groups and practices has survived legal challenge in a case decided recently by the Sixth U.S. Circuit Court.

   In MAYWEATHERS v. NEWLAND, justices ruled that the Religious Land Use and Institutionalized Persons Act (RLUIPA) was an appropriate use of Congressional authority, and did not violate the separation of church and state or other constitutional stipulations.

   RLUIPA was enacted in 2000 as a compromise on more expansive proposed "religious liberty" legislation. It requires that when dealing with matters involving land use by religious groups or the rights of incarcerated individuals, government must use a "compelling interest/least restrictive means" test. So, any state, municipality or government agency may be required to show that it has this "compelling interest" in placing any "burden" on a house of worship or incarcerated individual. If that legal challenge survives, the law must somehow then be enforced in the "least restrictive" way.

   Supporters of RLUIPA have claimed that the legislation is necessary to protect the free exercise of religion from increasing government encroachment. But critics point that the statute is mostly about giving churches and other houses of worship a powerful legal instrument in challenging land use laws, environmental regulations and zoning requirements. They also note that the law is being used widely by religious inmates throughout the nation's burgeoning penal system, who end up with court-ordered exemptions concerning hair-length, diets, and the conducting of worship services and other rituals.

   RLUIPA, charge opponents, fosters a bevy of exemptions and special privileges under the cloak of religious practice.

   In the MAYWEATHERS case, California State prison officials challenged the constitutionality of RLUIPA on a battery of legal grounds. This stemmed from a series of preliminary injunctions which permitted Moslem prisoners to attend a special Friday afternoon religious service known as Jumu'ah.

   The court agreed with the plaintiffs that "RLUIPA protects prisoners and other institutionalized people from government infringement on their practice of religion." Judges also ruled that the various clauses of the Constitution, including the Spending Clause and the goal of promoting General Welfare was served by the statute. Incredibly, though, the court also opined that the Religious Land Use and Institutionalized Persons Act "intends a secular legislative purpose: to protect the exercise of religion in institutions from unwarranted and substantial infringement."

   Even more astounding was the Ninth Circuit's view that "The primary effect of RLUIPA neither advances nor inhibits religion," and that the Act -- despite carving out what amounts to "special rights" for religious groups and practices -- "does not foster excessive government entanglement with religion."

   Other case circulating through the court system also seek to uphold the statutory authority of RLUIPA, especially as the law applies to jail and prison inmates.

   In the Sixth Circuit Court of Appeals, the case of MILLER v. WILKINSON, incarcerated plaintiffs are demanding their right to practice "unconventional" religious beliefs. Several of the plaintiffs are members of a polytheistic sect which worships the Viking deities Asatru and Thor. Another plaintiff is an ordained minister of the Church of Jesus Christ Christian, a white-supremacist sect, while another is a practitioner of the Wiccan rite.

   "All of them assert that Ohio prison regulations denying them access to religious literature and the opportunity to conduct religious services are violations of RLUIPA and the Ohio Constitution," notes the Beckett Fund, a "religious liberty" group involved in litigation to uphold the controversial law.

   Another case is MADISON v. RITER. A Jewish inmate at Buckingham Correctional Center in Virginia filed suit to challenge the institution's refusal to provide him with a custom kosher diet. The U.S. Department of Justice under Attorney General John Ashcroft has weighed in to defend the statute.

   By far, the greatest impact of RLUIPA is the growing use of the statute by houses of worship to challenge local and state laws governing everything from zoning and land development to environmental laws.

   This is fueled by the growth of suburban "mega-churches" with vast worship and administration facilities, "outreach" centers and parking lots. There is also the exodus of inner-city congregations to outlying areas, coupled with a trend where denominations seek to build churches, mosques or temples in the middle of established residential neighborhoods.

   Critics fear that under the cloak of religious practice, churches end up with an unfair advantage which local homeowners, developers and business people do not enjoy.

   ¶       In PRIMERA IGLESIA BAUTISTA HISPANA v. BROWARD COUNTY, both the Florida version of the Religious Freedom Restoration Act (another statute mandating wide use of the "compelling interest/least restrictive means test") and RLUIPA will be examined by a U.S. District Court. The case involves an evangelical congregation which purchased a single family house with the intent of turning it into a working church. That area of Broward County, Florida, however, was zoned for agricultural use.

   The church sought a building permit to begin renovation, but was denied. It also moved to waive a rule requiring that churches in any agricultural zoning district be at least 1,000 feet from other nonresidential, commercial buildings. Members of the congregation began using the house for organized worship services despite the denial of permits, and the Broward County Code Enforcement Board cited the church for illegal activity -- just as it would have a commercial operation or even a private citizen who did not obtain the appropriate clearances.

   In April, 2001 the churched filed suit and cited alleged violations of Florida RFRA and RLUIPA. Mediation efforts ordered by the U.S. District Court failed, and the case may not be heard until October of 2003.

   ¶       Bizarre religious practices are also falling under the purview of RLUIPA. In CONGREGATION ETZ CHAIM v. CITY OF LOS ANGELES, there was a legal collision involving neighborhood residents, an Orthodox Jewish group and the City of Los Angeles. It began when the municipality denied a conditional use permit to a small Jewish congregation which for decades had been meeting in the home of a Rabbi. Because of their religious beliefs, the Orthodox Jews shun motorized transportation during the Sabbath and insist on walking to services.

   As with the congregation in the Broward County case, the group decided to purchase a single family home in the same residential neighborhood and turn it into a working synagogue. Los Angeles authorities balked, though, saying that the move would "destabilize" the residential neighborhood, and establish a "precedent-setting encroachment" that might pave the way for other zoning exemptions. Congregation Etz Chaim went to court citing provisions of the First and Fourteenth Amendments, and RLUIPA.

   A state court upheld the claims, but a federal court dismissed the suit -- with the exception of a RLUIPA complaint which was added to the original suit just days after the new federal statute was signed. Faced with the prospect of litigating under the religious exemption, the Los Angeles City Council voted in September, 2001 to "cave" to the demands of the congregation.

   But that was not the end of the story.

   The agreement with the city authorized up to fifty people to gather at the private home during the Sabbath. The son of the original Rabbi who headed the congregation then decided to expand the structure, and in the spring of 2002, new plans were submitted to the city and permits were granted. Neighbors complained, though, and a stop work order was finally obtained. Faced with the renewed threat of RLUIPA, Los Angeles officials again gave in and decided not to challenge the expansion of the facility. The city reversed itself two days later, the congregation again went to court, and once again the city appeared to back down. Our latest information is that the dispute is still in federal court.

   ¶       In GREENWOOD COMMUNITY CHURCH v. CITY OF GREENWOOD VILLAGE, issues of growth and neighborhood sensibilities entered into the mix, along with the Religious Land Use statute.

   The Greenwood Community Church of Colorado was formed in 1991, and took over the property formerly occupied by a Baptist congregation. The city had granted approval for the construction of the original facility in 1985 which included about 32,000 square feet. In 1988, a permit for a 125-child day care center was granted.

   But in 2000, the church sought to double its size and install a music room, classrooms and a community activities center. After public hearings and other meetings, the City Council voted to deny the application to expand the facility. RLUIPA was invoked, and the Beckett Fund for Religious Liberty threatened legal action. In December, 2002, the Council reversed its original position.

   RLUIPA will likely remain under legal challenge until the Supreme Court possibly takes up the matter. In the meantime, neighborhood groups along with preservationists, municipalities, states, and even business owners will continue to find themselves in conflict with religious "businesses" seeking to relocate or expand their facilities. The Act is also likely to fuel calls for more expansive state and federal laws mandating the use of the "compelling interest/least restrictive means" test. This "special rights" legislations, say critics, goes far beyond the goal of creating a fair environment and level playing field for religious groups, or even ensuring the legitimate freedom of religion. Rather, it gives churches and other houses of worship a legal instrument enjoyed by no other segment of society when it comes to challenging civil statutes that apply to private citizens and businesses -- everyone who does not do business in the name of god.

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