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Religious liberty bill targeting land use, prisons introduced

WASHINGTON (BP)–Legislation protecting religious freedom in two categories was introduced July 13 in Congress after a more expansive bill stalled.

The Religious Land Use and Institutionalized Persons Act is designed to provide protection for churches and other religious bodies against discriminatory land-use regulations and for people in institutions such as prisons and mental hospitals. Though the legislation is narrower in focus than the Religious Liberty Protection Act that failed to receive Senate approval, it addresses the two arenas where its advocates say the overwhelming majority of free-exercise-of-religion problems have arisen in recent years.

The Senate bill is S. 2869, while the House of Representatives version is H.R. 4862. Sens. Orrin Hatch, R.-Utah, and Edward Kennedy, D.-Mass., are the lead sponsors in the Senate. Reps. Charles Canady, R.-Fla., and Jerrold Nadler, D.-N.Y., are the leaders in the House.

A diverse group of organizations supports the legislation, including the Southern Baptist Ethics & Religious Liberty Commission, Baptist Joint Committee on Public Affairs, Christian Legal Society, American Civil Liberties Union, Prison Fellowship, National Council of Churches, Family Research Council, American Jewish Congress and U.S. Catholic Conference.

“While we’re disappointed we were unable to get RLPA through the Senate, we’re pleased that we can cover 80 percent of the cases by addressing these two major areas,” said Shannon Royce, the Ethics & Religious Liberty Commission’s legislative counsel. “We will make every effort in a new congressional session to advance the cause of religious liberty to the place where all Americans are fully protected in the expression of their faith.”

Melissa Rogers, general counsel of the Baptist Joint Committee, said in a written release, “This bipartisan legislation will protect a right that is foundational in our country — the right to worship free from unnecessary governmental interference.”

Time is an enemy of the legislation, however. Congress has a five-week recess beginning the end of July and hopes to adjourn in early October. It appears the legislative body will be in session, therefore, no more than six weeks. Supporters of the bill hope to bring it directly to the floor under special rules in both houses.

While it only addresses land use and people in institutions, RLUIPA is like RLPA in that it utilizes the spending clause, the interstate commerce clause and the 14th Amendment of the Constitution. Like RLPA, the bill also prevents a government entity from substantially burdening the free exercise of religion unless it demonstrates it has a “compelling interest.”

Congressional committees have received testimony showing local communities have used zoning laws and land-use regulations to prevent churches and other religious bodies from building, buying or leasing spaces to meet and to limit attendance at such meetings.

In addressing institutionalized people, the bill is designed to protect the religious rights of prisoners and patients while not undercutting security.

The House approved RLPA with a 306-118 vote in July 1999. The Senate never acted on the bill, however.

Two months after the House vote on RLPA, some longtime leaders in a coalition seeking to restore protection of religious expression withdrew their support of RLPA. They included the National Council of Churches, People for the American Way, Americans United for Separation of Church and State, Evangelical Lutheran Church and the Religious Action Center for Reform Judaism.

In addition, the BJCPA said it would continue to support RLPA but would no longer work actively for its passage.

Support for RLPA began to be peeled away last year after the ACLU said it would oppose the bill unless Congress amended it to protect local and state civil rights such as gender, marital status and “sexual orientation,” which includes homosexuality. The Human Rights Campaign and the National Gay and Lesbian Task Force, leading homosexual rights political organizations, joined the ACLU in calling RLPA a threat to civil rights, saying people would be able under the legislation to discriminate against homosexuals and others in housing and employment based on their religious beliefs.

Nadler and Rep. Barney Frank, D.-Mass., former RLPA leaders in the House, came out against the legislation minus a civil rights amendment before the vote.

Spokesmen for the BJCPA and NCC said the arguments of homosexual rights activists did not form the basis for their new positions on RLPA. They cited the lack of support in the Senate and constitutional reasons. The BJCPA said it would prefer a bill targeting land use.

The ERLC, Christian Legal Society, Prison Fellowship, Family Research Council and others continued to work for RLPA’s passage, but no Senate action was forthcoming.

RLPA was a secondary attempt to alleviate problems for religious liberty brought on by a high court opinion. It was a response to the Supreme Court’s 1997 ruling overturning the Religious Freedom Restoration Act at the state and local levels. RFRA was a congressional response to a 1990 decision by the justices.

RFRA, also supported by a broad coalition, was enacted in 1993 in order to remedy the 1990 Employment Division v. Smith opinion, in which the Supreme Court rejected a previous requirement the government must show it has a “compelling interest” in restricting religious expression and its action is the “least restrictive means” in furthering that interest. Instead, the high court said the government only must show a law is neutral toward religion. RFRA restored the “compelling interest/least restrictive” test, but the justices rejected the law in the City of Boerne v. Flores decision, ruling Congress exceeded its authority.