Naked City

The Religious Freedom Restoration Act is back, and this time it may be a bit more bulletproof.

RFRA, Reborn

If Dubya wants to promote a happy, peaceful climate inside the Beltway, he's gotta love this: Right before Bush and his party got silly in Philly, within 30 minutes of each other, both houses of Congress unanimously passed the Religious Land Use and Institutionalized Persons Act of 2000. You can just call it Son of RFRA.

RFRA, if you're wondering, would be the Religious Freedom Restoration Act of 1993, spiked by the U.S. Supreme Court in 1997, enacted in Texas and eight other states since then, and now back in truncated form. (President Clinton has yet to sign RLUIPA, but is expected to.) All these versions have the same thrust: Religious institutions, or people who claim a religious interest, can ignore laws that apply to everyone else. Given our flaps with Hyde Park Baptist Church, its planned satellite at the Quarries, St. David's Episcopal Church, Praise Tabernacle, and the Dell Jewish Community Center, the RFRA saga is of more than passing interest here in Austin.

That saga began in 1990, when the Supremes allowed Oregon to withhold unemployment benefits from people fired for dropping peyote -- sacramentally, they claimed. Sen. Orrin Hatch is no friend to peyote, but he objected to the notion that government could (in his view) blow off the right to "free exercise of religion" guaranteed by the 14th Amendment. And so, in a frenzy of consensus, came RFRA, which allowed any citizen to challenge any law of any kind at any time if that law "substantially" burdened the self-perceived free exercise of religion in any way.

The government would have to prove that the law in question -- which could be a zoning ordinance, a health and safety code, a tax law, whatever -- was the least restrictive means of safeguarding a compelling public interest, which "is the most demanding test known to constitutional law." So said the Supreme Court as it killed RFRA in City of Boerne v. Flores, that being our Kendall County neighbor and Patrick Flores, the Archbishop of San Antonio.

The archdiocese wanted to expand Boerne's St. Peter's Church; the city said no because the church was in a historic district, and Flores sued under RFRA. (Not that dissimilar from the St. David's case here.) On a 6-3 vote, the Supremes laughed out loud at RFRA, calling it (in the opinion of Justice Anthony Kennedy) an "intrusion at every level of government, displacing laws and prohibiting official actions of almost every description." Ever since, the bulletproof coalition behind RFRA -- from the Christian Coalition to the American Civil Liberties Union -- has been trying to work around the Supremes' thou-shalt-not.

One way of doing this -- equally suspect but appealing to the federalist tilt of the high court -- was to turn RFRA into state law, which happened here in 1999 courtesy of Sen. David Sibley of Waco. The Texas RFRA, otherwise a Xerox, mandates a 60-day notice and cooling-off period before a plaintiff can file suit. This last provision, about the only concession to local control in Texas RFRA, could be wiped out by RLUIPA, at least when applied to land use laws and to prisoners' rights. (The prison angle is important in getting liberal support; Hatch's co-sponsor both for RFRA and RLUIPA was his unlikely friend Ted Kennedy.)

Of course, land use is what Austin, and most cities, are worried about, and land use is what prompted Boerne v. Flores, so whether RLUIPA is really "narrower" than RFRA is open to debate. The rationale comes from the Supremes' 1965 decision (South Carolina v. Katzenbach) upholding the Voting Rights Act, in which the court held that Congress could "enforce" the 14th Amendment to remedy an actual problem (like black disenfranchisement), but not to create a brand-new right to ignore inconvenient laws. Hatch and Kennedy -- with great guidance from UT law professor Douglas Laycock -- claim there are enough examples of cities screwing churches (usually obscure or controversial ones) with their zoning laws to make RLUIPA constitutional, even though Boerne v. Flores seems to make clear that only intentional discrimination can be so remedied.

The Clinton administration heartily agrees. Others do not: the erstwhile Austinites at American Atheists, obviously, and the National League of Cities and National Association of Counties, but also many conservatives, who feel RLUIPA is still a naked federal conquest of local terrain. Says NYU professor Marci Hamilton, who argued Boerne v. Flores before the Supremes, "If you live next door to a church, your property rights get squashed by this bill." Take that, Hyde Park.

So now Austin and its neighborhoods have to fight both state and federal laws, and do battle not only with local white-shoe lawyers but also the U.S. Dept. of Justice, in order to stake claims against huge and powerful institutions that really don't need any constitutional help. If W. gets elected, the DOJ that enforces RLUIPA, and the Supreme Court that might rule on the act, will be of his devise, and guess whose side they'll be on. Yet another reason to think about your vote.

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Religious Land Use and Institutionalized Persons Act of 2000, Religious Freedom Restoration Act, Orrin Hatch, City of Boerne vs. Flores, Anthony Kennedy, David Sibley, Ted Kennedy, Voting Rights Act, Douglas Laycock, Marci Hamilton

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