In Boerne the court held that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, was unconstitutional as applied to state and local governments (the RFRA still applies to the federal government). The court held that in enacting the RFRA congress exceeded its authority under section 5 of the 14th amendment to the U.S. constitution. The RLUIPA attempts to correct this.
The RLUIPA applies to all government programs that receive federal financial assistance, which includes all state governments and virtually all-local governments. The RLUIPA prohibits government imposition of land use regulations that burden religious exercise (the underlying issue in Boerne) unless the government can show a compelling interest and the regulation is the least restrictive means of furthering that interest.
While the RFRA applied to prisoners, the RLUIPA specifically states its application to prisoners. It states: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. § 1997), even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of Application This section applies in any case in which
(1) the substantial burden is imposed in a program or activity that receives federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several states, or with Indian tribes."
The RLUIPA can be privately enforced. Section four, Judicial Relief "(A) Cause of Action A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under Article III of the constitution.
"(b) Burden of Persuasion If a plaintiff produces prima facie evidence to support a claim alleging a violation of the free exercise clause or a violation of section 2, the government shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion."
The law holds that RLUIPA claims litigated in state courts won't be entitled to full faith and credit in federal courts unless the claimant had a full and fair adjudication of that claim in a non federal forum.
Successful litigants are entitled to attorney fees under 42 U.S.C. § 1988. Nothing in the RLUIPA is intended to amend or repeal the Prison Litigation Reform Act. The U.S. government can also bring actions for injunctive and declaratory relief to enforce the Act.
The Act states that it does not allow for any government to burden any religious belief nor does it create any basis for claims against religious schools or organizations not acting under color of law. The Act does not authorize the regulation of any entity other than a government as a condition of receiving funding from the federal government.
"A government may avoid the preemptive force of this Act by changing the policy or practice that results in a substantial burden on religious exercise by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise or by any other means that eliminates the substantial burden."
The Act is to be given a broad construction "in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this act and the constitution." The Act does not repeal or preempt any state or federal law that is equally or more protective of religious rights than this law. The establishment clause of the constitution is not affected.
Congress also amended the RFRA to conform with the ruling in Boerne by eliminating language referring to the RFRA's application to state and local governments.
Presumably by protecting religious rights under the commerce clause, and conditioning its applicability to state and local governments upon the acceptance of federal funding, congress hopes to cure the infirmities that led to the RFRA's demise. Prisoner litigants raising religious freedom claims should do so under both the RLUIPA (and the RFRA if they are federal prisoners) and the free exercise clause of the First amendment. The RLUIPA standard of review, and burden of proof, is substantially more favorable to prisoner litigants than the "reasonable relationship" test adopted by the supreme court for prisoner religious claims in O'Lone v. Estate of Shabazz, 107 S.Ct. 2400 (1987).
Whether the RLUIPA will hold up to constitutional scrutiny remains to be seen. By bringing both statutory and constitutional claims, litigants avoid the risk of being left without a claim if the RLUIPA is ultimately struck down, as happened to many RFRA litigants when Boerne was decided. Since the RLUIPA authorizes "appropriate relief against a government" this should include money damages.
Imprisoned members of minority religions will be the main beneficiaries of this law. Mainstream religious groups were instrumental in lobbying for passage of the RLUIPA. Its title accurately reflects the fact that the bulk of government repression of religion in the United States occurs in prisons and jails. Given the past few years of congressional and judicial rollback of prisoners' rights the enactment of the RLUIPA is an anomaly. The RLUIPA is codified at 42 U.S.C. § 2000 cc.
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