Copyright (c) 2002 New York University School of Law
New York University Journal of Legislation and Public Policy
NOTE: THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000: AN UNCONSTITUTIONAL EXERCISE OF CONGRESS'S POWER UNDER SECTION FIVE OF THE FOURTEENTH AMENDMENT
2002 / 2003
6 N.Y.U. J. Legis. & Pub. Pol'y 561
Joshua R. Geller*
In 2000, President Clinton signed into law the Religious Land Use and Institutionalized Persons Act (RLUIPA). 1 RLUIPA addresses land use conflicts between religious organizations and local zoning authorities, mandating that such conflicts be decided in favor of the religious organization unless the governmental interest in the matter is compelling and the government's approach is the least restrictive means of securing that interest. 2 Cases challenging RLUIPA's constitutionality are starting to percolate through the federal courts. 3
I argue that although RLUIPA addresses a serious problem of discrimination against religious institutions in land use controversies, it is nevertheless normatively unjustifiable and constitutionally infirm. The Act is normatively unjustifiable because it is based on an unacceptable theory of the free exercise of religion. This conception favors the interests of religiously motivated actors over the interests of their secular counterparts, instead of protecting religious believers who may be vulnerable to discrimination. In addition, RLUIPA is constitutionally infirm because it is an instance of Congress acting at odds with the Supreme Court on a matter of constitutional interpretation. In enacting RLUIPA, Congress exceeded its authority under Section 5 of the Fourteenth Amendment, because RLUIPA redefines constitutional rights. 4 To understand this two-sided problem, we must examine two distinct but related areas: substantive free exercise of religion jurisprudence and constitutional theory. In Part I, I provide a background on the Supreme Court's jurisprudence on free exercise and Section 5 preceding RLUIPA. In Part II, I explain RLUIPA's land use ...
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