RLUIPA: A permissible accommodation of religion

Hollman Report
By K. Hollyn Hollman

December 2004

Readers of this publication know that the separation of church and state, provided in the First Amendment, does not amount to hostility toward religion. The concept of separation protects religion, both in preventing an establishment of religion and in prohibiting unnecessary interference with free exercise. As the Supreme Court has recognized the religion clauses leave room for "a benevolent neutrality" toward religion.

To protect religious freedom, government must not interfere with religious exercise. Sometimes that means it must specifically act to lift a burden on religion. In other cases, government is permitted, but not required, to do so. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is an example of the kind of permissible government act that protects religious liberty without advancing religion.

In Cutter v. Wilkinson, the Supreme Court will review the constitutionality of RLUIPA's prisoner provisions, which require the lifting of substantial burdens on the rights of prisoners to practice their religion, unless the government has a compelling state interest, such as maintaining security, not to do so. In the case, prisoners assert that Ohio prison regulations deny them access to religious literature and the opportunity to conduct religious services.

The Court will determine whether Congress had the requisite power under the Constitution (pursuant to the Spending and Commerce Clause) to require lifting government-imposed burdens on the free exercise rights of prisoners, and whether the law goes too far in protecting free exercise and thus violates the Establishment Clause.

The BJC leads a broad coalition that urged passage of RLUIPA and is defending its constitutionality in an amicus brief to be filed in Cutter. RLUIPA is the kind of free exercise legislation that properly accommodates religion, without endorsing or advancing it in violation of the Establishment Clause. In short, we argue that where government acts to lift a substantial government-imposed burden on religion, it allows individual free exercise to flourish, but does not unconstitutionally aid religion.

RLUIPA should be upheld under any of the tests the Court uses to interpret the Establishment Clause. The statute meets all three requirements of the Lemon test and does not endorse religion.

First, RLUIPA has a secular purpose. It was passed to protect the free exercise of religion from unnecessary government interference in the limited contexts of land use and institutions. The Supreme Court has long held that limiting governmental interference with the exercise of religion is a proper purpose under the Establishment Clause.

Second, RLUIPA does not have the primary effect of advancing religion. Instead, it simply reduces government intrusion and oversight on how individuals practice their religion. As the Court noted in Bishop vs. Amos: "A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden "effects" under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence." Nor does the fact that government acted to lift a burden only on religion, make it unconstitutional. The Court in Amos stated that where "government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities." After all, religion is treated differently in both the Ohio and federal Constitutions. The Establishment Clause theory advanced by the lower court that legislative accommodations of religious exercise are forbidden if they accommodate only religious exercise is not supported by prior case law. Adopting such a rule would invalidate many long-standing, non-controversial legislative accommodations.

Third, the statute does not foster excessive entanglement with religion. RLUIPA fits well within the concept of "benevolent neutrality," which the Court in Amos noted leaves room to allow "religious exercise to exist without sponsorship and without interference."

The case will be determined this Spring.