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Protecting Religious Freedom

Today is Religious Freedom Day, marking the anniversary of the passage of Thomas Jefferson’s Virginia Statute for Religious Freedom, which ultimately provided the inspiration and framework of the First Amendment’s religion clauses.

Today is Religious Freedom Day, marking the anniversary of the passage of Thomas Jefferson’s Virginia Statute for Religious Freedom, which ultimately provided the inspiration and framework of the First Amendment’s religion clauses. In his Religious Freedom Day Proclamation President Obama calls on us to “celebrate America’s legacy of religious liberty” and “resolve once more to advance religious freedom in our time.”

One way that the federal government seeks to ensure that these principles are put into practice is through enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Passed by unanimous consent in 2000 with the support of a religiously and ideologically diverse coalition of groups, RLUIPA seeks to ensure religious freedom in two important areas:  the ability of religious communities to build places of worship and other religious institutions, and the ability of prisoners and other persons confined to institutions to continue to practice their faiths. 

Prior to RLUIPA, Congress had found widespread discrimination against places of worship in local zoning decisions: discrimination against minority faiths, against Christian churches with members from racial minorities, and against smaller and newer churches.  Congress also found that places of worship as a category faced discrimination, excluded from zones where nonreligious places of assembly, like fraternal organizations, theaters, and community centers were permitted. 

As Senator Orrin Hatch and the late Senator Edward Kennedy, RLUIPA’s Senate sponsors, noted:  “The right to assemble for worship is at the very core of the free exercise of religion.  Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements.”  Congress thus passed RLUIPA, which prevents discrimination against religious institutions in zoning and landmarking decisions, and also prevents application of these laws in ways that imposes a “substantial burden” on religious exercise without a compelling government reason.  Suits may be brought by the affected religious institutions or individuals, as well as by the Department of Justice.

A Department of Justice report on the 10th anniversary of RLUIPA found that the law had a “dramatic impact in its first ten years on protecting the religious freedom of and preventing religious discrimination against individuals and institutions seeking to exercise their religions through construction, expansion, and use of property.”  The report noted that these cases represented a wide range of religious groups, including Christians, Jews, Muslims, Sikhs, people who practice Native American traditional religions, and many others, and arose in a wide range of settings, including churches, synagogues, mosques and other places of worship, religious schools, prayer meetings in homes, and faith-based social services such as homeless shelters, group homes, and soup kitchens.

RLUIPA’s land use protections continue to protect a wide range of religious institutions.   Recent cases include helping a small independent church in Mississippi and a large Hispanic Southern Baptist Church in Arizona  to locate in downtown areas on an equal basis with nonreligious assemblies; winning a consent decree to permit a Buddhist congregation  in Walnut, California to construct a temple; helping win the right for a small Hasidic Jewish congregation to locate in a residential neighborhood in Los Angeles; and obtaining a consent decree allowing an Islamic Center in Lomita, California, to replace its aging and inadequate complex with a single mosque building.  

RLUIPA also protects the religious freedom rights of persons confined to prisons, jails, mental institutions and state-run nursing homes.  While security and other unique needs of such institutions will mean that people in them do not have all the freedoms they have outside of them, Senators Hatch and Kennedy noted that “some institutions restrict religious liberty in egregious and unnecessary ways” and that “prison officials sometimes impose frivolous or arbitrary rules” such as denying matzo bread to Jews at Passover or refusing to allow prisoners to wear small crosses that did not pose security risks.  In December 2013, the Department of Justice won a Preliminary Injunction against the State of Florida requiring it to offer Kosher meals to prisoners whose faith requires them, and the Department recently reached a consent decree with a county jail in South Carolina to allow prisoners to obtain religious texts, secondary religious materials, and religious items used in worship.

The values embodied in RLUIPA are universal ideals.  Department of Justice attorneys have provided technical assistance on issues involving construction of places of worship to government officials in Spain, Indonesia, Bosnia-Herzegovina, and other countries wrestling with these same issues.  In 2012, the Islamic Center of Murfreesboro, Tennessee won the right to move into its new mosque with the help of a RLUIPA suit brought by the Department of Justice. On the day of the court decision, the mosque’s Imam, Sheikh Ossama Bahloul, remarked that America’s dedication to religious freedom can serve as a model for others around the world, and added:   “I think this is an opportunity for us all to celebrate the freedom and liberty that, in fact, exist in America and to teach our young people to believe even more in the U.S. Constitution.”

Melissa Rogers is Special Assistant to the President and Executive Director of the White House Office of Faith-based and Neighborhood Partnerships.  Eric Treene is Special Counsel for Religious Discrimination at the Department of Justice.