By Jonathan Walters

Political pandering is fun, but it’s especially fun when the politicians doing the pandering won’t be suffering any of the crummy consequences of the fawning bills they pass.

And so it is with the Religious Land Use and Institutionalized Persons Act of 2000, passed by Congress and recently signed into law by President Clinton. It’s a dog of a law aimed at burnishing the two parties’ credentials with organized religion.

It’s a dog of a law because it doesn’t have anything to do with religious freedom. In fact, critics of the bill contend that “institutionalized persons” were included merely to serve as a thin smokescreen to hide the real intent of the law. And the real intent is obvious: It is a blatant attempt by organized religion to end-run local land use laws.

In essence, it allows religious organizations the right to sprint directly to federal court every time they feel slighted by local zoning ordinances, raising the specter of huge legal fees for small towns should a town actually try to exert its right to protect the public health, safety and welfare through zoning provisions that churches don’t happen to like. And the bill doesn’t just cover specific places of worship; it can include any facility — from a school to a theater — that has a religious affiliation. (How long will it be before someone in the adult entertainment business tries to wrap themselves in this one in order to dodge a local ordinance?)

If this all sounds kind of familiar, it’s because this law is an undisguised, re-engineered version of a previously passed federal religious freedom act, a law that had similar land use control consequences, and which was, quickly, summarily and deservedly erased off the books by the U.S. Supreme Court. The vehicle for voiding that law: a land use case. In that case, local governments’ right to regulate land in the name of public safety, health and welfare was resoundingly affirmed.

While a sanctimonious president interested in shoring up his reputation on the morals front won’t be around to see this particular mongrel put out of its misery, it will be. In fact, churches and localities have already joined the battle based on the new law, and a legal challenge will no doubt soon be working its way through the federal courts, where it will once again be declared unconstitutional. And one can only hope — in the name of whatever deity one chooses to sign on with — that Congress will get the message when that happens: The federal government’s job is to protect U.S. soil; state and local governments have the job of regulating how that soil gets used.

Jonathan Walters is a staff correspondent for Governing.

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Reader Response:

DESPICABLE LEGISLATION

Jonathan Walters was on the money again in his analysis of the Religious Land Use Act recently passed by Congress, but calling it a “dog of a law” is an insult to dogs everywhere. The Religious Land Use Act is truly a despicable piece of legislation.

It is not only an attempt to reenact a piece of legislation already ruled unconstitutional, but in many ways the latest incarnation of the Religious Freedom Restoration Act is more dangerous than the first, being based on even more far-fetched constitutional arguments. RFRA had been passed based upon the claim that protecting religion was a requirement of the Fourteenth Amendment, which says that “no State shall ... deprive any person of life, liberty or property without due process.” The argument in 1997 was that local ordinances which affected religious organizations deprived them of (religious) liberty.

The argument in 1997 was bad enough, but Congress no longer claims to be enforcing the Fourteenth Amendment when it extends special protections to religion. Now, it simply claims that it has jurisdiction to override local land use laws based upon its general power to “regulate commerce with foreign nations and among the several States.”

The idea that Congress can preempt local land use laws under the power to regulate interstate commerce would be a huge extension of congressional power at the expense of local government. Before, Congress had claimed that religious institutions were part of a growing, but still limited, list of special groups falling under the Fourteenth Amendment. Now Congress claims to be able to preempt local laws and grant special protections to any group it chooses.

Perhaps next year the National Restaurant Association will get Congress to preempt local zoning laws restricting where bars can be located. Maybe the NRA can get Congress to preempt local laws regulating where gun stores can be located. In short, if Congress can overrule local land use laws in favor of any group which happens to enjoy political power, it would truly dissolve any distinction between what is a local matter and what is a federal one — as the court has repeatedly complained about congressional enactments in recent years.

The idea that local controls such as zoning are an “interference in commerce” is not an isolated idea. We have already seen suits against cities by international companies for things like zoning adult establishments out of certain areas. Companies have claimed this was in violation of international trade agreements. If we accept the idea that local zoning and land use ordinances are actually an interference in interstate and international commerce, we may next see international trade bureaucracies telling us that we must allow adult bookstores across from high schools.

In an election campaign in which both parties seemed to be trying to outdo each other in talking about God, and describing how friendly they are towards religion, it is not surprising that Congress should re-pass the ill-fated Religious Freedom Act. It is understandable that people want to give special protection to religion, but that is not the job of the federal government.

“Protecting religion” sounds like a worthy goal in the abstract, but few of us really want federal judges to become de facto city planners. The federal government has taken over more and more of the roles once reserved to local government. If the federal government is now to be dictating zoning ordinances to local governments, it is hard to imagine anything left for local government to decide on its own.

Paul Clark
Director
Coalition for Local Sovereignty
Washington, D.C.

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