Details

Autor(en) / Beteiligte

• Salkin, Patricia E.
• Lavine, Amy

Titel

The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and Its Impact on Local Government

Ist Teil von

• The Urban lawyer, 2008-04, Vol.40 (2), p.195-267

Ort / Verlag

Chicago: Section of State and Local Government Law, American Bar Association. University of Missouri-Kansas City School of Law

Erscheinungsjahr

2008

Link zum Volltext

Quelle

Alma/SFX Local Collection

Beschreibungen/Notizen

• The Development of Free Exercise Jurisprudence The religion clauses of the First Amendment, which simultaneously forbid the government from establishing religion and from prohibiting its free exercise, are looked upon with great respect and admiration by many.6 Despite the almost universal support for the concept of protecting religion, religious controversies make their way into the courts in a rich variety of cases, from challenges to the requirements of the social security system7 to attacks on the constitutionality of reciting the pledge of allegiance in public schools.8 Religious claims have been asserted against drug laws,9 laws regulating the educational10 and prison systems, prohibitions on animal sacrifice,12 military regulations,13 and land use and zoning laws.14 However, [j]udges are ill-equipped to examine the breadth and content of an avowed religion[,]15 and when the courts are asked to demarcate the scope of the religion clauses, they face difficult questions. Exemptions from such laws for religiously motivated behavior were not considered to be constitutionally required.23 Moreover, the cases in which free exercise claims prevailed were often accompanied by free speech or equal protection claims, and the Court tended to resolve cases on these grounds, leaving the exact scope of the Free Exercise Clause unclear.24 In 1963, however, the Court announced a new test in Sherbert v. Verner.25 Adell Sherbert was a Seventh Day Adventist who lost her job because she refused to work on Saturdays, the Sabbath of her faith.26 When she applied for unemployment benefits, she was denied them.27 The Supreme Court analogized this denial to a "fine imposed... for her Saturday worship"28 and held that "no showing merely of a rational relationship to some colorable state interest would suffice [to justify the denial]; in this highly sensitive constitutional area, 'only the gravest abuses, endangering paramount interests, give occasion for permissible limitationf.' "29 This standard was upheld in Wisconsin v. Yoder,30 where the Court held that Wisconsin had no compelling interest sufficient to justify denying the Amish litigants an exemption from the state's compulsory schooling laws.\n Among the questions that should be asked: * How many zoning applications are filed on an annual basis by religious organizations? * What are the categories of requested uses (e.g., houses of worship, schools, housing, camps, etc.)? * What is the scope of these projects (e.g., in terms of acreage, square footage, size of the congregation-both present and projected) and how does the scope of a project tend relate to the size of the municipality where it is located? * Are the proposed uses allowed as of right or by special permit in the district? * Did the municipality engage in meetings and negotiations with the applicant? * Were multiple applications submitted for the same project? * Was the application approved or denied? * If the application was denied, what were the grounds cited? * If the application was denied, did it result in litigation? * If the application was approved, was there evidence that the board felt pressured due to RLUIPA? * Did the municipality retain special counsel for a potential RLUIPA claim during the zoning review process? * How much money did the municipality spend as a direct result of RLUIPA on the particular case? B. Federalism and Local Nature of Tuning Zoning also has an inherently local nature.