Abstract

http://ssrn.com/abstract=1081492
 


 



The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government


Patricia Salkin


Touro College - Jacob D. Fuchsberg Law Center

Amy Lavine


Albany Law School

January 3, 2008

The Urban Lawyer, Vol. 40, p. 195, Spring 2008

Abstract:     
In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom.

Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

Number of Pages in PDF File: 83

Keywords: religion and the law, RLUIPA, land use, First Amendment, Free Exercise Clause, Establishment Clause, religious land use, zoning

JEL Classification: K11, K39, R52

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Date posted: January 10, 2008 ; Last revised: July 23, 2013

Suggested Citation

Salkin, Patricia and Lavine, Amy, The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government (January 3, 2008). The Urban Lawyer, Vol. 40, p. 195, Spring 2008. Available at SSRN: http://ssrn.com/abstract=1081492 or http://dx.doi.org/10.2139/ssrn.1081492

Contact Information

Patricia E. Salkin (Contact Author)
Touro College - Jacob D. Fuchsberg Law Center ( email )
225 Eastview Drive
Central Islip, NY 11722
United States

Amy Lavine
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States
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