RLUIPA is an acronym that Con-Law students will be used to seeing before long. It stands for Religious Land Use and Institutionalized Persons Act. Some wit referred to a bloke called Ray Luipa, which I happen to like, so I'm borrowing it for my own purpose, which is to try to remember the acronym.
The question is whether Congress has the power to pass certain legislation. As we've seen in other contexts, typically the Commerce Clause, the Court has clipped Congress's wings in, notably, the Lopez School Gun case (1995) and the VAWA case, U.S. v. Morrison (2000). Next up on the "clipping Congress's wings" docket is Raich v. Ashcroft (2005), the California medical marijuana case argued this term.
Justice John T. Noonan, Jr., of the Ninth Circuit has written the most informative book, Narrowing the Nation's Power, which I've been recommending to students since it was published, by the U. of California Press, in 2002.
Whenever the Court tells Congress that it hasn't the power it thought it had to regulate, i.e. enact legislation on behalf of the perceived (by Congress) need of the Nation, based on Congressional hearings, testimony, etc., the Nation's power has been narrowed. And the Supreme Court's power increased, it seems.
In the urinating contest between the Court and Congress, the Court is higher on the Hill, and thus has final say. "Judicial supremacy" this has been called. Or judicial sovereignty, if you prefer.
Such is the power of judicial review.
But you already knew that, so forgive me for repeating. It's how I learn. And teach.
But now to the case that Justice Noonan calls "The Battle of Boerne" (a Texas city they pronounce as "Burney") City of Boerne v. Flores (1997) 521 US 507. This is another example of the narrowing of the Nation's power.
The story goes like this: When Smith was fired from his job with the State of Oregon as an alcohol and drug counselor, because, as a Native American votary of Native American Church he used sacramental peyote during certain traditional observances, he was denied unemployed compensation (since he was fired "for cause"). He sued the state, claiming that Oregon was violating his constitutional right, under the First Amendment, to the "free exercise" of his religion.
He lost, in Employment Division v. Smith (1990) 494 US 872.
Catholics, Protestants, and Jews became alarmed. If a state could prohibit members of a church from using sacramental substances such as peyote, then a state could prohibit their members from practices that they considered essential to observing the tenets of their religion.
What prohibitory regulations or other restrictions might these be? The use of sacramental wine was one obvious possibility.
But zoning ordinances were another, perhaps not so obvious area of regulation.
Representatives of the various major religions in America approached Congress with their concerns. Congress responded favorably, passing RFRA (the Religious Freedom Restoration Act) in 1993, to protect the free exercise of religion in America.
Well and good, you say, this is the land of the free, the home of the Braves, and the place where you would expect religion to be protected.
Congress acted, not under its Commerce Power, or its Spending Power (the usual suspects), but under a really cool newer power lurking in the 14th Amendment (lurking in the 13th and 15th, as well). This is Section 5 of the 14th Amendment. The almost famous Section 5 power.
All it says, Section 5, is that, "The Congress shall have the power to enforce this article [meaning this amendment] by appropriate legislation." No big deal, right? Wrong. This has turned out to be a big deal, and it continues to be a big deal.
Because the Supreme Court didn't quite see RFRA the way that Congress did. Overkill is how the Court saw RFRA in the Boerne case, and declared it unconstitutional. Congress, by enacting RFRA (pronounced as though it were spelled "rifra"), was telling the Court that Congress did not like its decision in the Oregon case involving Mr. Smith and his use of sacramental peyote.
The Court did not seem to like being told by Congress how to do its job. "We have the final say, not you, when it comes to deciding what the Constitution means," the Court seemed to say. The idea of judicial sovereignty was alive and well. John Marshall's Big Axe, the power of judicial review, was in the grasp of the Court, not the Congress.
The Court held, in Boerne,that in in enacting RFRA, Congress had failed to tailor the legislation to the problem it was supposed to remedy. There wasn't enough problem with restrictions on the free exercise of religion in the U.S. to worry about, the Court was saying. Maybe a few drug-using Indians were getting screwed, but not a lot of Protestants, Catholics, and Jews. The legislation was not "congruent and proportional" to the dimension of the problem, and not only that, but Congress had relied on only "anecdotal" evidence in enacting RFRA, so for these reasons, it had to be declared unconstitutional.
Whoa! I thought Congress had the power to pass laws that IT thought were wise to pass, to remedy problems in the land, based on information that came to it any which way, such as complaints from constitutents, newspaper reports and editorials, testimony taken at Congressional hearing, and people writing letters to their Congressmen and women.
But here we have the Supreme Court telling Congress it does not have the power to pass laws if the Court doesn't like the kind of evidence on which Congress relied, or if the new remedy seems too broad for the problem the legislation seeks to prevent or cure.
This sure looks as though the Court is returning to the old Judicial Activist days of the Lochner-Era, doesn't it?
Weren't we taught that in 1937 the Court went out of that business once and for all? We've seen numerous examples, starting with West Coast Hotel v. Parrish, in 1936, U.S. v. Carolene (1937) with its famous Footnote 4, proclaiming hands-off ordinary economic and social legislation, but allowing exceptions for textual rights, political participation rights, and the rights of defenseless minorities.
In Boerne, the Court seemed to be Lochnerizing, acting as a Super-Legislature, passing on the wisdom of the legislation, not the legitimacy of its passage. Well, the Court could say, we are passing on the legitimacy, not the wisdom. And since we're dealing with religion, we're squarely withing the textual rights exception of Fn. 4/Carolene. So there!
"But you had to make up new jargon passing as new law to do so. That's all this nonsense about "congruence and proportionality" is about. You just made that up! What a cheap way to go, pretending you're not activist when all the time you were just looking for an excuse to show who was boss."
The odd thing is that it was the conservatives on the Court who took the lead in being the activists.
Usually the conservatives are the first to decry the activism of the liberals who invent new liberties, such as Douglas, privacy, in Griswold, and Blackmun, abortion (more privacy), in Roe, and now Kennedy, liberty, in Lawrence.
When the conservative Justices out-legislate even the Congress, you know the buggers are up to something big, and probably no good.
But what could it be?
Try, "Who's Boss," or judicial sovereignty, and see if that fits.
But Congress wasn't dead.
It came back with another religious freedom restoration act, called RLUIPA, to protect against the sort of zoning regulations that were at issue in the Boerne/RFRA case, and to protect the religious rights of religious people in prison. Maybe this new act will be a little more congruent and proportional than the last. Maybe Congress used better evidence than it did in passing RFRA. Maybe a lot of things.
We'll find out when the Court decides the pending RLUIPA case, in No. 03-9877, Cutter v. Wilkinson (to be argued during the last two weeks in March).
You can go here (which is SCOTUS blog) to link to the opening briefs and find out what this fight is all about in all its living glory. Douglas Laycock is the U. Texas constitutional law professor who argued the Boerne case against Marci Hamilton, the Yeshiva U. constitutional law professor who also writes most informative and interesting Findlaw columns on current Con-Law issues.
Blast! It took me all that just to tell you what's going on in one case.
I wish I could explain this stuff more succinctly.
You should try it some time.
Well, now you know what the fight is about, if you made it to here, and if you did, congratulations, because it's probably going to be on the Final if I have any say in the matter...
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Added 12/24/04
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When you see Orthodox Jews holding hands with Christian Evangelicals, as they're doing in Prof. Douglas Laycock's brief in a RLUIPA case discussed here, you know something's going on.
And then of course we have the Satanists and the wiccans or witches, but as Prof. Laycock, a leading thinker on the relationship between church and state, says, there's a lot more requests for chaplains and kosher food in prisons than requests having to do with the devil.
The odd thing about cases involving religion is how easy it is to laugh at what someone else believes. We've learned not to laugh at what Catholics, Protestants, and Jews believe, because we've grown up with it. We tend to laught at the promise of 72 virgins in the sky for Islamic suicide bombers, of whom there are far too many, however. Tolerance has its limits, it seems. We don't want to tolerate beliefs that we think are crazy.
Who would tolerate craziness?
Not any sane person.
Maybe we have to tolerate a certain amount of craziness in the interest of tolerating the little bit of reason we're allowed. Don't want to push either too far. Bad judgment to do that. Need the ringmaster to keep us all on our little stools in the big cage. Crack that whip. "Down, boy!" That's how you run a proper circus. Keep the audience in awe of your control over wild forces that can strike out and kill you in the flick of an eyelash. It's a wonder how the lion tamer manages to do this without getting eaten up by the animals who are so much bigger. Well, sometimes the lion tamer does get bit. Ask Seigfried and Roy, who continue to recuperate.
The Puritans believed in God and the Devil. God accounted for good in the world but was not responsible for evil, all that went wrong, even though we call some of that an Act of God (See your insurance policy, which doesn't cover you for what He does.). The policy should really exclude from coverage, to be religiously correct, Acts of Satan.
How do we know that the Puritans believed in Satan?
Because they hanged all the witches. Those were the neighbors who fell under suspicion of being "in league with the Devil," for personal advantage. In fact these so-called witches were just innocent neighbors whom the bewitched accusers successfully accused. Because of the usual neighborly quarreling and contentiousness that goes on in any neighborhood where people have too much time (between harvests) and not enough places to go and things to do to keep from dwelling on what caused the milk to fail to churn into butter, or what made the cow die. Blame it on the neighbor, who must be a witch because she looks like your idea of a witch. You do have an idea of what a witch looks like, don't you? Think Halloween. Do you see a black hat and a broom? Good. You've got the witch bug. Just like the good folks of Salem. Useful for eliminating witches.
Nowadays a lot of Christians believe in God, but downplay Satan. He's in bad repute these days. God gets the blame for the good and the bad. Good seems awfully close to God. I wonder whether there's anything to that. If there was, I'd take it as gospel. Good news about god. Good spiel. Gospel. The English spoke German before they spoke English and learnt to spel. Angles. Saxons. Friesland. No wonder we still believe in witches. Look who brought them over the Channel.
But if a few folks today insist on the right to believe in witches and want to bring back the old religion said to have existed on the European Continent before it was Christianized, before Christmas when it was the Winter Solstice that was commemorated or worshipped around Dec. 21st, or 25th, the time of the old Yule log, who are we to say they're nuts and shouldn't be allowed, given some of our own beliefs in the supernatural. or the observances whether we believe or not. Did you have a lovely Christmas tree this year? Wonderful! You know what I'm talking about.
Have a Merry Christmas.
And leave the witches alone.
Who knows, they may be on to something...