Modifying the Religious Land Use and Institutionalized Persons Act to Create a Constitutional Statutory Protection for Religious Landowners
Sara Witt, 59 Case W. Res. L. Rev. 767 (2009)
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Part I will provide background regarding Free Exercise Clause jurisprudence, RLUIPA’s legislative history, and Congress’s enforcement power, one basis Congress claimed as giving it authority to enact RLUIPA and its unconstitutional predecessor, the Religious Freedom Restoration Act. Part II will argue that enactment of RLUIPA was outside Congress’s Fourteenth Amendment enforcement power. Specifically, it will consider whether RLUIPA codifies Supreme Court precedent and whether the Act is ‘congruent and proportional’ to the harm it seeks to remedy. Part II will ultimately conclude that neither of these tests is met. Part III will argue that some statutory protection is necessary for those seeking to use land for religious purposes and will suggest how RLUIPA may be modified so as to provide this protection while remaining within the confines of the enforcement power.
