rluipa, two

RLUIPA as a result of Smith
(this continues on the post below)


The free exercise portion of the Religious Clause (I'm continually playing with the Rhetoric, here) was abruptly shifted with Scalia's ruling in Employee Division v. Smith. What had become a vehicle for broad, constitutionally mandated accommodation of religious practice was dwarfed into a phrase that protects religious practice from government burdens only where the government acts, quite specifically, to quash a religion. Smith allows a free exercise challenge only where government laws are not generally applicable.

While many observers had grown wary of the broad protections the free exercise phrase was providing, Smith came as a shock to many--that government criminal laws, so long as they were generally applicable, were not to be subject to free exercise challenges. In response to Smith, Congress passed the Religious Freedom Restoration Act...more or less to restore pre-Smith jurisprudence. The law required strict scrutiny to government burdens on religious exercise.

The Court overturned RFRA, with fairly good and obvious reasoning: the law had no pinning on any Congressional power to act. Thus, cam RLUIPA. Congress narrowed it's focus to institutionalized persons and land use--and pinned (precariously, for land use) the law on the commerce and spending clauses. RFRA had been pinned on the 14th amendment, and that's a loser- especially with this Court.

I still must refrain from the land use aspect of this law. In the case before us, the Court found the essentials: the law only applies where stae and local governments take federal money...so the spending clause is satisfied. Second- this is a clear result of what Smith promotes; to wit, legislative acomodation.

Smith denies presumed, Constitutional accomodation. Scalia said, in effect, if legislators want to accomodate religious practice, they can do so themselves. Hence, RLUIPA. So long as the legislators have the requisite power to legislate, they can allow religious practice to their hearts content. The line--as far as the joints between accomodation and establishment--is, as this case makes clear, where the accomodation is not even handed and neutral. Where, in other words, the accomodation is a disguised favoritism.