rluipa

RLUIPA

This week, the Court overturned an appeals court decision that had ruled the Religious Land Use and Institutionalized Persons Act (RLUIPA) unconstitutional, violating the establishment clause. The case deals only with the institutionalized persons part of this Act: section 3 says that no state or local government can impose a substantial burden on religious exercise of a person confined to an institution (prisons, mental homes, and such) unless the government shows a compelling interest in the burden and that it so burdens with only the least restrictive means. The appeals court found that, by so accommodating religious practice over secular practices, the federal government was unconstitutionally favoring and promoting religion…in that institutionalized persons might take on religious practices in order to receive the accommodations.

The Court ruled, unanimously, that RLUIPA does not in fact violate the establishment clause-- and this is the right decision. As far as the legislated accommodation in section 3 goes, this is an easy case. There is nothing constitutionally wrong where Congress creates, legislatively, an accommodation for religious exercise. To rule otherwise would be, if we follow logical conclusions, to find the free exercise clause unconstitutional. What is important, and what Justice Ginsberg makes clear in her decision, is that the accommodation is appropriately balanced so as to not differentiate among bona fide faiths…that it does not single out one faith for privileged status. That is the line government cannot cross in post-Smith response/accommodation (see below, and this will make sense).

This ruling (call it half-way through the discussion of whether all of RLUIPA is constitutional…I will argue the land use portion is not) is one in a series; and, to understand its significance for Religion Clause jurisprudence, the history of prior cases and Congressional action is important.

(but I have to leave the computer...so, TBC)