A Religious Freedom Success Story
By Melissa Rogers and Amanda Tyler
Few religious liberty measures have passed Congress by unanimous consent, been vigorously enforced and enthusiastically lauded by administrations of both political parties, and resulted in unanimous Supreme Court rulings. The Religious Land Use and Institutionalized Persons Act (RLUIPA) is one of those measures, and it turns 20 years old on September 22. For two decades, it has ensured that countless religious communities — especially those that are religious, racial and ethnic minorities — can establish houses of worship, and that scores of individuals confined in governmental institutions — such as state-run nursing homes– can practice their faith.
In 2000, we worked together at Baptist Joint Committee for Religious Liberty and helped lead a diverse coalition of religious and civil rights groups that pressed for RLUIPA’s passage. We are thrilled that it continues to be vigorously enforced and enjoy widespread support. Given the toxicity of current debate over religious freedom, it’s worth considering whether our experience with RLUIPA might point the way toward a better conversation. In this regard, at least five elements of the Act are notable.
First, Congress did not address every religious liberty problem with RLUIPA — just two of the most important consensus items. The Act bars governmental landmarking and zoning that discriminates against — or unjustifiably interferes with — religious exercise, and it extends protections for persons seeking to practice their faith while they are confined within governmental institutions, such as prisons, nursing homes and immigrant detention centers.
The ability of a religious community to establish a house of worship, for example, is obviously crucial, yet too often zoning and land use officials make that impossible or exceedingly difficult, especially for faith communities that are religious, racial or ethnic minorities. Years of Congressional hearings identified widespread discrimination against religious persons and organizations by state and local land use decisions. Many on the political right and the left also agreed that when individuals live — either temporarily or permanently — within government-run institutions, they may need special tools to protect their ability to practice their faith.
Second, RLUIPA addresses the problem of discrimination with specific standards. It says, for example, that land use regulations may not be imposed in ways that treat religious assemblies or institutions on less than equal terms than their nonreligious counterparts. Regulations also cannot totally exclude or unreasonably limit religious assemblies and institutions within a jurisdiction. These standards clearly articulate problems religious communities often face, and they are aimed at correcting obvious injustices.
Third, the Act employs a balancing test, not absolute exemptions. Under RLUIPA, the government cannot impose substantial burdens on religious practice unless narrowly tailored to serve a compelling government interest. As the Department of Justice (DOJ) has noted, this test is “intended in part to prevent subtle, hard-to-prove discrimination.” Absolute exemptions are sometimes appropriate and necessary, but more often a balancing test is the best approach.
Fourth, whether one worships at a church, synagogue, mosque, temple or gurdwara, RLUIPA provides equal protection for the right to practice religion. At the same time, DOJ’s enforcement has been responsive to a painful reality: minority groups continue to face “a disproportionate level of discrimination in zoning matters … .” When it released a report on RLUIPA’s tenth anniversary, DOJ noted that “Jewish, Muslim and Buddhist land-use cases made up a disproportionate number of its investigations — 13 times their representation in the population.” RLUIPA does not favor one religion over another, but some communities have clearly had to rely on its protections more than others, and DOJ has been there to help.
Fifth, longtime career civil servants at DOJ who have religious liberty expertise and a commitment to freedom for all have played leading roles in RLUIPA enforcement. That has helped immensely to maintain continuity across administrations and ensure that enforcement hews closely to the law’s terms and aims.
We believe Americans of all political stripes can still come together around some important religious freedom issues and make a difference by doing so. Targeting particular problem areas with specificity helps, as does providing balanced protections. Involving and retaining career civil servants who are experts in this area and committed to religious liberty for all people is essential. Attention to factors like these certainly won’t end our debates over religious freedom. It could help us, however, drain some bitterness from those debates and find more ways to live together across our deepest differences.
Melissa Rogers is the author of Faith in American Public Life. From 2013–2017, she served as special assistant to President Obama and directed the White House Office of Faith-Based and Neighborhood Partnerships.