[Congressional Record Volume 146, Number 91 (Friday, July 14, 2000)]
[Extensions of Remarks]
[Pages E1234-E1235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000

                                 ______
                                 

                         HON. CHARLES T. CANADY

                               of florida

                    in the house of representatives

                        Thursday, July 13, 2000

  Mr. CANADY of Florida. Mr. Speaker, I am pleased to introduce with my 
colleagues the

[[Page E1235]]

gentleman from New York, Mr. Nadler and the gentleman from Texas, Mr. 
Edwards, the Religious Land Use and Institutionalized Persons Act, a 
bill designed to protect the free exercise of religion from unnecessary 
government interference. The legislation uses the recognized 
constitutional authority of the Congress to protect one of the most 
fundamental aspects of religious freedom--the right to gather and 
worship--and to protect the religious exercise of a class of people 
particularly vulnerable to government regulation--institutionalized 
persons.
  The land use section of the legislation would prohibit discrimination 
against or among religious assemblies and institutions, and prohibit 
the total unreasonable limits on religious assemblies and institutions. 
Finally, it would require that land use regulations that substantially 
burden the exercise of religion be justified by a compelling interest. 
The legislation would also require that a substantial burden on an 
institutionalized person's religious exercise be justified by a 
compelling interest.
  The Religious Land Use and Institutionalized Persons Act is a partial 
response to rulings by the Supreme Court which have curtailed 
constitutional protection for one of our most fundamental rights. In 
1990, the Supreme court in Employment Division v. Smith held that 
governmental actions under neutral laws of general applicability--that 
is, laws which do not ``target'' religion for adverse treatment--are 
not ordinarily subject to challenge under the free exercise clause even 
if they result in substantial burdens on religious practice. In doing 
so, the Court abandoned the strict scrutiny legal standard for 
governmental actions that have the effect of substantially burdening 
the free exercise of religion. Prior to the Smith decision the Court 
had for many years recognized, as the Court said in 1972 in Wisconsin 
v. Yoder, that ``[a] regulation neutral on its face may, in its 
application, nonetheless offend the constitutional requirement for 
government neutrality if it unduly burdens the free exercise of 
religion.''
  In response to widespread public concern regarding the impact of the 
Smith decision, the Congress in 1993 passed the Religious Freedom 
Restoration Act, frequently referred to as RFRA, which sought to 
restore the strict scrutiny legal standard for governmental actions 
that substantially burdened religious exercise. RFRA was based in part 
on the power of Congress under Section 5 of the 14th Amendment to 
``enforce, by appropriate legislation, the provisions'' of the 14th 
Amendment with respect to the States. The Supreme Court in 1997 in the 
City of Boerne v. Flores, however, held that Congress had gone beyond 
its proper powers under Section 5 of the 14th Amendment in enacting 
RFRA.
  The Religious Land Use and Institutionalized Persons Act approaches 
the issue of protecting free exercise in a way that will not be subject 
to the same challenge that succeeded in Boerne. Its protection for 
religious assemblies and institutions and for institutionalized persons 
applies where the religious exercise is burdened in a program or 
activity operated by the government that receives Federal financial 
assistance, a provision closely tracking Title VI of the Civil Rights 
Act of 1964. Such protection also applies where the burden on a 
person's religious exercise, or removal of the burden, would affect 
interstate commerce, also following in the tradition of the civil 
rights laws. In addition, the land use section applies to cases of 
discrimination and exclusion to cases in which land use authorities can 
make individualized assessments of proposed land uses. These provisions 
are designed to remedy the well-documented discriminatory and abusive 
treatment suffered by religious individuals and organizations in the 
land use context.
  The protection afforded religious exercise by this legislation in the 
area of land use and zoning will be of great significance to people of 
faith. Attempting to locate a new church in a residential neighborhood 
can often be an exercise in futility. Commercial districts are 
frequently the only feasible avenue for the location of new churches, 
but many land use schemes permit churches only in residential areas, 
thus giving the appearance that regulators are being generous to 
churches when just the opposite is true. Other land use restrictions 
are more brazen. Some deliberately exclude all new churches from an 
entire city, others refuse to permit churches to use existing buildings 
that non-religious assemblies had previously used, and some 
intentionally change a zone to exclude a church. For example, churches 
who applied for permits to use a flower shop, a bank, and a theater 
were excluded when the land use regulators rezoned each small parcel of 
land into a tiny manufacturing zone.
  The Religious Land Use and Institutionalized Persons Act is supported 
by a broad coalition of more than 70 religious and civil rights groups 
ranging from the Family Research Council and Campus Crusade for Christ 
to the National Council of Churches People for the American Way. While 
it does not fill the gap in the legal protections available to people 
of faith in every circumstance, it will provide critical protection in 
two important areas where the right to religious exercise is frequently 
infringed.

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