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If the Supreme Court struck down Congress' attempt to protect religious liberties in the Religious Freedom Restoration Act, why wouldn't it just do the same thing with RLUIPA?

Congress has different constitutional sources for its authority. If the Supreme Court denies it the power to create a law under one source, Congress may still be able to accomplish its goal using a different source. Congress justified its passage of RFRA under a section of the 14th Amendment that gives it the power to pass laws deemed necessary to protect the liberties ensured by that amendment, which would include the First Amendment’s guarantee of “free exercise of religion.” The Court held that under that section Congress was only permitted to develop laws that would enforce the standard of protection deemed necessary by the Court itself, as opposed to the stricter general standard embodied in RFRA.

RLUIPA’s justification was rooted in Congress’ power to regulate matters touching on interstate commerce. The Supreme Court has only rarely overturned congressional acts based on the interstate-commerce clause, so it is possible (though far from a certainty) that the Court would find a sufficient tie to interstate commerce to justify Congress in creating RLUIPA. It is important to note that even if the Court finds that Congress acted from the proper source of authority, the act might still be found to violate the establishment clause and therefore be unconstitutional.


Have there been any rulings yet on RLUIPA’s constitutionality?

Yes. So far, two federal district courts have considered the act’s land-use provisions. (Additional courts have considered RLUIPA’s institutionalized-persons provisions.) Both in Freedom Baptist Church v. Township of Middletown and Charles v. Verhagen, the courts found RLUIPA to be a constitutional exercise of congressional power. A number of other cases are currently pending, and it is likely that several will produce rulings from the various federal appellate courts. Once a case with convenient facts reaches the appropriate stage, the Supreme Court will almost certainly take the opportunity to rule definitively on RLUIPA’s constitutionality.


Do cities have the right to restrict the number of churches?

Cities have the right to zone specific areas for religious purposes, but they do not have the right to restrict the number of churches or religious institutions within their boundaries. Under RLUIPA, religious institutions are given some protection against zoning laws. Though the act does not completely exempt churches from zoning laws, officials must have a compelling interest in restricting a church or other religious institution from being built in a specific area.

Some fear that allowing an overabundance of religious institutions in a city will damage the economy because religious organizations are exempt from property taxes. Chris Hoene, a research manager for the National League of Cities, said some cities had become inventive in devising ways to collect money from churches. For example, some cities have begun to tax religious organizations’ profit-generating enterprises, including publishing and gift-shop sales.



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