[Hpn] Religious Land Use and Institutionalized Persons Act Becomes Law

H. C. Covington icanamerica@email.msn.com
Thu, 09 Nov 2000 17:07:06 -0600

Did anyone see this and see how it affects the Homeless?


Religious Land Use and Institutionalized Persons Act Becomes Law
By Juan Otero, NLC (October 2, 2000)
(Information provided by the National League of Cities)

President Clinton signed into law the Religious Land Use and Institutionalized
Persons Act (RLUIPA). In no uncertain terms, the law is a direct blow to local
governments across the nation and represents efforts to federalize local zoning.
Under RLUIPA, local ordinances will be challenged, allowing religious
organizations to evade such things as parking restrictions, setback
requirements, tree ordinances, drainage requirements, and noise limits.
Communities may be exposed to problems such as traffic congestion, noise
pollution, and polluted runoff. Police and fire vehicles could have difficulties
with access. Simply put, the law will allow certain groups to disregard the
rules as they are applied to everyone else, regardless of the will of the
community itself.

According to the law, religious institutions can be large facilities with
activities beyond worship services. They may include schools, childcare and
senior centers, theaters, coffeehouses, and fitness facilities. Public health
and safety are obvious issues of concern to cities. If such institutions were to
be granted special status under the law, they would not be held to government
standards. Ultimately, the law will establish a special, federalized land use
standard solely applicable to religious institutions, rendering locally approved
land use plans and zoning decisions null and void in the context of religious

Supporters, including a broad spectrum of religious and civil liberties groups,
hope that the President's signature will end a 10-year struggle over the status
of religious liberty in American law. But that is an extremely unlikely
scenario. Local governments and historic preservation groups, see RLUIPA as an
improper and unwarranted intrusion into local decision making. RLUIPA will only
escalate tensions between religious organizations and local jurisdictions that
establish land use rules that apply to everyone.

Local officials across the nation have made clear their concerns surrounding
RLUIPA and have protested the special protections for religious groups carved
out by this law. After the bill was signed into law Don Borut, Executive
Director of the National League of Cities said, "We are extremely disappointed
that the federal government has again preempted a fundamental home rule power of
local governments and question the constitutionality of the legislation."

The law is a scaled-down version of a religious liberty bill that ran into
sudden opposition last year. Gay rights leaders and civil rights activists were
concerned that the bill would have allowed landlords and employers to refuse to
deal with gays and lesbians by citing religious objections. Two months ago,
House and Senate sponsors agreed to narrow the bill so that it would address
only land-use disputes and religious conflicts involving people under the
control of others, such as prisoners and nursing home patients.

Until 1990, the Supreme Court had said that the First Amendment's guarantee of
the "free exercise of religion" usually required the government to make
exceptions for religious claimants. The Amish, for example, could not be
compelled to send their children to high school, the Supreme Court said, and
states could not deny unemployment benefits to Seventh-day Adventists who
refused to work on Saturdays. But in 1990, the high court reversed itself in a
case involving two Native Americans who had been fired from state jobs after
they ingested peyote, a hallucinogen that they said was central to their
religious celebrations.

Speaking for a 5-4 majority in the case of Oregon vs. Smith, Justice Antonin
Scalia said that religious claimants are not entitled to special exemptions from
ordinary laws. The government can enforce laws against everyone equally, so long
as a religious group is not singled out for discriminatory treatment. Justice
Scalia's opinion surprised mainstream church leaders because it left no room for
the special status of religion.

Not surprisingly, Congress took up the issue and, in 1993, passed the Religious
Freedom Restoration Act (RFRA). The Supreme Court struck down the federal
mandate and intrusion into traditional state and local authority when it
overturned RFRA. The test case, City of Boerne v. Flores, Archbishop of San
Antonio, arose from the denial of a building permit to the church by the city.
The church claimed that the city's denial violated the new federal law. When the
city refused to give the Archbishop of San Antonio a permit to demolish all but
the facade of a 1923 church, the church went to court under the RFRA.

Saying that the sweeping coverage of the Act "ensures its intrusion at every
level of government, displacing laws and prohibiting official actions of almost
every description and regardless of subject matter," the Court ruled that
Congress had exceeded its authority in passing a law that is a "considerable
Congressional intrusion into states' traditional prerogatives and general
authority to regulate for the health and welfare of their citizens."


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