In recent years the United States Supreme Court has decided multiple cases reaffirming the strong protections afforded by the First Amendment’s Free Exercise clause. However, there is one area of law protecting religious exercise where the Supreme Court has been noticeably silent, cases involving the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (“RLUIPA”). Hopefully, this body of case law is next in line for Supreme Court review.
Congress passed RLUIPA unanimously in 2000 and President Clinton signed it into law in September of 2000. The law was passed after the Supreme Court held the Religious Freedom Restoration Act was unconstitutional as applied to the states. Both laws were passed in response to the Supreme Court’s decision in Employment Division v. Smith, which held neutral laws of general applicability are not subject to strict scrutiny even if they burden religious exercise.
In RLUIPA Congress sought to protect religious exercise in two specific instances: (1) for institutionalized, that is imprisoned, individuals and (2) in the land use context. The law prohibits state and local governments from substantially burdening religious exercise, from treating religious exercise on less than equal terms with secular activity, from discriminating against religious exercise and from unreasonably limiting religious exercise.
In theory this law represented a huge win for religious liberty due to its broad applicability. However, in practice, this hasn’t always been the case. One specific problem in some of these cases is the standard applied to evaluate a substantial burden. In some federal circuits the test asks whether the government: “(1) influences the adherent to act in a way that violates [its] religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following [its] religious beliefs.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).
The issue with this standard is that it was crafted to apply to inmates, where the government has significant control over the individuals every action. Conversely in the land use context, the government lacks this same control. Yet courts across the country have applied the same substantial burden standard to prisoner and land use cases brought under RLUIPA. The result is a severely watered down test when considered in the land use context which is difficult for the religious organization to satisfy. This result is antithetical to the statute’s stated goal of providing “broad protection of religious exercise.” 42 U.S.C. § 2000cc-3(g).
The Supreme Court has yet to hear a merits case dealing with RLUIPA but hopefully that will change soon. In his concurrence in Ames v. Ohio Department of Youth Services, Justice Thomas sought to “highlight the problems that arise when judges create atextual legal rules and frameworks . . . [which] have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts.” Although this comment was made in reference to certain court created barriers to bringing Title VII complaints, the reasoning is equally applicable to the RLUIPA statute. The opinion spends much ink discussing how judge created doctrines are difficult for courts to apply and have no basis in the text of the law. As is the case when courts apply the same substantial burden standards to incarcerated individuals and land use decisions.
Hopefully, the Supreme Court will take a case in the coming years to is deficiency in the lower federal court’s handling of RLUIPA substantial burden claims and to also address the other judge created rules meant to narrow RLUIPA’s applicability in spite of Congress’ express mandate of broad religious protection.
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