Tanya Davis, Staff Writer, TDavis@albanylaw.edu
Friday, the third and final day of the God and the Land symposium, began with the Edwin Crawford Memorial Lecture on Municipal Law, delivered by Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, and author of God vs. the Gavel: Religion and the School of Law.1The subject of her lecture was the unconstitutionality of RLUIPA and the threat it poses to local municipalities in undermining their ability to enforce and draw up zoning laws. Professor Hamilton is one of the leading scholars in the nation in the area of the separation of church and state, and was lead counsel for City of Boerne, Texas in City of Boerne v. Flores2, which held the Religious Freedom Restoration Act of 1993 (RFRA)3unconstitutional. She also clerked for Justice O’Conner when Employment Div. v. Smith4 was decided.
Professor Hamilton, who has often been accused of being “too extreme” in her support of the protection of religion, shared that she was “taken aback” when, as soon as she became lead counsel in the City of Boerne case, when she began to get calls from groups that lobby against religious institutions. These were largely children’s advocacy groups, particularly those acting on behalf of children who die in faith healing homes and communities etc. Ms. Hamilton soon learned that some religious groups had caused enough harm in our society to mobilize such a massive counter movement. This was an eye opening experience for her.
It’s not surprising that Ms. Hamilton, after successfully invalidating as unconstitutional RFRA in City of Boerne is now an unabashed opponent to RLUIPA. The crux of her contention with the Act is that it allows the Court to treat land deals as entitlements where religious entities are concerned. In a more general sense, she argues strict scrutiny applied pursuant to RLUIPA violates the Establishment clause. RLUIPA is all the more vexing, she argued, because religious groups, while never having won a constitutional strict scrutiny standard akin to that afforded free speech claimants, had fared rather well in caselaw before RLUIPA was decided.
In 1990, Ms. Hamilton was clerking for Justice O’Conner, the same year, Employment Div. v. Smith5 was decided. It was one of the cases that nobody thought meant anything; however, within a couple of weeks, there is was “a huge brouhaha” in response to Smith. Everyone was upset that the case had not emnployed strict scrutiny and some even announced it as the death knell for the Free Exercise clause. However, Ms. Hamilton pointed out, the vast majority of Free Exercise cases, including Smith, had been decided according to the rule of law and not by strict scrutiny. By 1993, as confirmed by Church of Lukumi v. City of Hialeah6 the caselaw had crystallized around the idea that no group could be discriminated against because of their religion. Doctrinally, the Lukumi Court held that municipalities could not create a law that applied to only one religious group. Caselaw had developed to the point where, if proactive religious discrimination could be shown, strict scrutiny would be applied under the Free Exercise Clause.
Ms. Hamilton then turned her attention to RLUIPA, an act designed to prevent such religious discrimination by always triggering strict scrutiny in religious land use cases. She argued that RLUIPA’s innovation was in allowing churches to challenge generally applicable and neutral laws and get a strict scrutiny analysis from the Court when they do so. This allows churches to impose their demands on residential neighborhoods in cases which are often politically charged. Ms. Hamilton pointed out that RLUIPA has generated a lot of business for church and municipal attorneys.
Ms. Hamilton argues that religious groups were sufficiently protected by the Free Exercise clause before RLUIPA was passed and that the act eschews any notion that communities and their inhabitants have a legitimate reason for protection from the intense land uses which often accompany religious worship. RLUIPA wasn’t an act needed to rescue persecuted religious minorities, it was an unabashed power grab by certain conservative-christian members of Congress, who were keen on overruling the “activist” Supreme Court and to “act the savior” for their religious constituency, regardless of whether the act had any support in the Constitution. The bottom provisions of RLUIPA match the constitution, but RLUIPA also grants religious institutions the new power to be able to say that even if the government has a neutral and generally applicable law, strict scrutiny will still apply when they challenge it because it is they who do so. RLUIPA, in this sense, was a weapon delivered unto religious groups for their convenience and at the expense of non or other-religious neighbors.
Ms. Hamilton did not offer hypothetical problems under RLUIPA, but used real world examples. What has happened on the ground and how have the dynamics of church and state changed? She shares this story: a synagogue was built at the end of a cul-de-sac in a residential neighborhood. The synagogue served over 400 families, as well as providing other services throughout the week. It completely changing the character and traffic pattern of the previously quiet residential neighborhood. The residents of the neighborhood brought action to challenge the synagogue’s use of the land in this way. The synagogue’s RLUIPA answer was that it couldn’t afford to build somewhere else. This argument satisfied RLUIPA and the synagogue won.
Ms. Hamilton claims that, under RLUIPA’s protection, religious entities have the capacity and power to impose their projects on neighborhoods, no matter the opposition, justified or not. In what are often politically charged contests, religious groups can just call [their opposition] anti-(fill-in-the-blank) and if they don’t get their way, they can play their RLUIPA trump card and no matter how religious the opposition may be, they are likely to win out. This all threatens the things an average homeowner cares about, subjugates them to the religious missions of whatever group is trying to build anything nearby.
Ms. Hamilton argues that RLUIPA offers religious entities an unfair bypass around the costs, delays, and frustration inherent in land use disputes for every other class of landowner. She also argues that questions of land use are inherently local questions and that Congress has no business imposing its will on local governments with regard to it. She argues that RLUIPA is not only a financial windfall, but also a political windfall as well. She claims that RLUIPA is a political weapon that has been handed to these religious entities, pointing out that we cannot track the amount of times that local negotiations have been controlled and manipulated by “reminders” that religious entities are backed by RLUIPA, and that capitulation is quite common.
Ms. Hamilton pointed out that no one in the hearings on RUILPA talked about residential neighborhoods and the effect it would have on them. They didn’t talk to land use experts and excluded it from the record. No one asked the hard questions. It was not passed unanimously. Instead, it was passed in the middle of the night by the leadership of one party, while the other party was leaving for the summer. The opponents to RLUIPA, whose numbers had been increasing, were outfoxed. Even Mayor Giuliani wrote a letter opposing it in defense of municipal complexity and historical preservation, which was not included in the legislative history. In addition, the federal government does not know anything about land use because it has no experience in dealing with local matters. The final problem is that the federal government cannot challenge its own lawns, municipalities don’t have the resources or back bone to challenge, and it rarely comes up in private civil cases, which means that a direct challenge to the constitutionality of RLUIPA is unlikely.
Ms. Hamilton, an obviously knowledgeable and passionate proponent of constitutional protections, closed by stating that her own background is deep seated in religious belief, that she is deeply opposed to religious discrimination of any kind, but that she is also deeply opposed to entities that trade on their other good characteristics in order to engage in rent seeking and unfair deferential treatment.
1 Marci A. Hamilton, God vs. the Gavel: Religion and the School of Law (2005). For Professor Hamilton’s profile, see http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=10510&contentid=1274&folderid=476 (last visited Oct. 3, 2008).
2 521 U.S. 507 (1997).
3 42 U.S.C.
4 494 U.S. 872 (1990) (upholding an Oregon controlled substance law which prohibited the use of peyote, even for religious purposes, because the law “was not aimed at promoting or restricting religious beliefs and therefore did not violate the Free Exercise Clause [of the First Amendment]”).
6508 U.S. 520 (1993) (applying a strict scrutiny analysis, the court held that ordinances prohibiting animal sacrifice violated the Free Exercise Clause because they were not neutral nor of general application, were overbroad and underinclusive, were not drawn in narrow terms and were not passed to protect a compelling government interest.).