The constitutional standard by which laws that burden free exercise are measured has evolved over the last half-century through U.S. Supreme Court decisions. The Supreme Court stated, "there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability." In Employment Division v. Smith , the Court abandoned the requirement that laws burdening religious exercise have a compelling governmental interest with respect to neutral statutes. Congress responded to the Smith decision by enacting the Religious Freedom Restoration Act (RFRA; P.L. 103-141 ) of 1993. RFRA statutorily reinstated the strict scrutiny standard in all circumstances where government actions burdened religious exercise. RFRA provided that the government could substantially burden a person's exercise of religion only if the burden (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that interest. As originally enacted, RFRA applied the strict scrutiny standard for governmental action at the federal, state, and local levels. Congress justified applying strict scrutiny to the states as an exercise of power under section 5 of the Fourteenth Amendment, which grants "Congress the power to enforce, by appropriate legislation, the provisions of this article [guaranteeing individuals equal protection and due process of law]." In City of Boerne, Texas v. Flores , the Supreme Court held RFRA unconstitutional as it applied to states and localities because the statute exceeded Congress's remedial powers to enforce rights under the Fourteenth Amendment. In the wake of Boerne , Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA; P.L. 106-274 ). The protections of RLUIPA apply only where states or localities place a substantial burden on religious exercise as a result of a land use regulation, or on the religious exercise of institutionalized persons. Thus, to avoid the broad exercise of power invalidated by Boerne , Congress specifically delineated the narrow application of the RLUIPA protections in order to ground the statute in Congress's powers under the Spending Clause, the Commerce Clause, and the Fourteenth Amendment. In part, Congress enacted RLUIPA to address challenges to zoning ordinances based on religious exercises. Several appellate courts, however, have upheld the land use provisions of RLUIPA in the face of these challenges, holding that the statute is a legitimate use of power under the Commerce Clause or section 5 of the Fourteenth Amendment, and does not violate either the Establishment Clause or the Tenth Amendment. According to the Second Circuit, RLUIPA does not advance religion simply by removing barriers to an individual's constitutionally protected right to freely exercise his religious beliefs. The Court noted that nothing in RLUIPA compels the states to prohibit or require particular acts.
The constitutional standard by which laws that burden an individual's First Amendment right to exercise his religion are measured has evolved over the last half-century through U.S. Supreme Court decisions and legislative action by Congress in response to those decisions. After decades of requiring that laws burdening the free exercise of religion be subject to heightened judicial review, the Court reinterpreted that constitutional standard in the 1990 case of Employment Division v. Smith, deciding that the First Amendment provided narrower protection than the Court had previously recognized. In Smith, the Court held that the strict scrutiny standard of review, which required a compelling governmental interest achieved by the least restrictive means, did not apply to neutral laws that applied to society generally. Under Smith, heightened review (sometimes referred to as strict scrutiny) applies only to cases that involve religious claims for exemption in programs that allow for individualized assessments, cases that involve deliberate governmental targeting of religion, or cases in which a Free Exercise claim is joined with another constitutional claim.
A constitutional standard is a baseline of protection, but Congress may raise that standard to provide heightened protection by statute. After Smith narrowed the protections provided under the Constitution, Congress sought to reinstate the heightened standard of review statutorily. Congress enacted legislation that created a statutory standard of review that would apply, first through the Religious Freedom Restoration Act of 1993 (RFRA; P.L. 103-141), which applied heightened judicial review to all federal, state, and local government actions. In the 1997 case of City of Boerne v. Flores, the Court struck down as unconstitutional portions of RFRA that applied to state and local government actions. Congress responded later through the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA; P.L. 106-274), which applies heightened review to state and local government actions in limited types of cases.
The heightened standard of review provided by RLUIPA applies to state and local government actions that (1) restrict religious exercise through zoning laws, or (2) restrict the religious exercise of institutionalized persons. In order to avoid federal interference with state governments, which had proved fatal to portions of RFRA, Congress further limited the application of heightened review provided by RLUIPA to certain instances within these two categories of state and local action. The heightened standard of review under RLUIPA therefore applies only in (1) instances in which Congress exercises power under the Spending Clause, Commerce Clause, or section 5 of the Fourteenth Amendment, and (2) instances in land use cases in which decisions are made based on a case-by-case assessment of particular properties.
Since its enactment in 2000, RLUIPA has been challenged several times in federal court. Most courts have upheld RLUIPA as constitutional under the Spending Clause, Commerce Clause, section 5 of the Fourteenth Amendment, and the Establishment Clause. This report provides background on RFRA and discusses the provisions of RLUIPA and its related case law.