The Obama Administration's Approach to the Religious Land Use and Institutionalized Persons Act (RLUIPA): Not Very Different From the Bush and Clinton Administrations'
	By MARCI A. HAMILTON
	Thursday, September 30, 2010

This fall marks the tenth anniversary of the Religious Land Use and Institutionalized Persons Act (RLUIPA). I have criticized RLUIPA in several prior FindLaw columns, including this one. However, in this column I will reference RLUIPA for a different reason: to reflect on the disappointments of the Obama Administration.

As we all know, President Obama was elected on a platform of "change" and "hope." I, along with many others, saw in him a reflection of the kind of reform that I believed was needed to cure the errors of the Bush Administration. Somehow, as a candidate, Obama succeeded in seeming to be everything to virtually everyone.

That is a remarkable feat for a politician, but it is a platform that can never be delivered upon in fact. And when it came to choosing between fidelity to the Constitution's church/state line and catering to religious interests, Obama has chosen religious interests over constitutional principles.

Presidents Clinton and Bush Consistently Catered to Religious Interests -- But There Was Hope President Obama Would Be Different

To be more specific, during the 2008 campaign, I saw Obama as someone who would take a strong stance on the relationship between church and state, and who would thus right a balance that has been skewed since President Clinton was in office.

President Clinton was the most pro-religion president since President Grant, who tried to Christianize the "Indians." Clinton attended prayer breakfasts on a routine basis, curried the favor of major evangelical pastors, and sought out their advice. But he also gave religious lobbyists more sway than any other President since Grant.

While Clinton was in office, the misbegotten Religious Freedom Restoration Act (RFRA) and RLUIPA were passed, and the International Religious Freedom Act was, as well. RFRA disabled every law in the country by giving religious individuals and institutions the power to challenge every law in federal court. For a President to back such an extraordinary privilege simply because the illegal actor is religious is remarkable. Clinton treated it as one of his great achievements. The only law that I could find that Clinton favored that went against religious interests was the federal law making genital mutilation illegal. If that is the only religiously-motivated practice that makes a President pause, there is an enormous universe of troubling conduct left unregulated, from the medical neglect of children by faith-healing parents, to child sex abuse by clergy, to discrimination.

President Bush then took Clinton's fervor for evangelical Christianity to new levels, with a reported weekly telephone conference with several Christian pastors, and with explicit public promises to conservative Christians on a variety of issues.

The combination of the Clinton-Bush years created an environment in which it became fashionable among some powerful politicians and interest groups to argue that there should not be any separation between church and state. These years also saw a strong push by such groups to define this religiously-diverse society as a "Christian nation."

For those who understand that the constitutional division of power that keeps church and state distinct is crucial for liberty, these developments were insidious and troubling.

With the Inauguration of President Obama, It Seemed Reasonable to Expect that He Would Maintain the Constitution's Church/State Division, But He Has Not

Earlier in his political career, President Obama did not seem to share President Bush's and President Clinton's unitary church-state vision. Indeed, he gave a speech several years before he ran for President in which he lauded the separation of church and state.

Then, during his campaign, Obama pledged to roll back some of the most extreme positions taken by the Bush Administration. For example, Congress had refused, during the Bush era, to pass a law that would permit federally-funded religious social-service providers to discriminate in hiring on the basis of religion. In other words, if a social service provider was taking federal funds, it had to abide by federal anti-discrimination laws, which meant counselors and those serving the needy would have to be chosen on merit rather than identity. Under pressure from religious lobbyists, though, the Bush White House accomplished what Congress had refused to do and issued a regulation giving federally-funded religious social-service providers the right to choose employees on the basis of religion, as opposed to merit in the field of service.

Obama explicitly, and quite publicly, pledged to rescind this regulation. But Obama the campaigner is not Obama the President, and religious groups so far have succeeded in persuading Obama to keep the Bush rule allowing religious discrimination in place. That means that if your child needs substance-abuse counseling and it is being provided by a religious organization receiving federal dollars, the counselors were not necessarily chosen according to what they know about substance abuse.

President Obama Has Been As Aggressive as President Bush Was, With Respect to RLUIPA Enforcement

Because candidate Obama had seemed to respect the separation of church and state, there were those who assumed that, as president, he would shake up the Department of Justice's handling of religion, and depart sharply from Bush Administration precedent.

Under Bush, the DOJ had added a position for Eric Treene, formerly of the Becket Fund, to act as a liaison on behalf of religious groups. In addition, the DOJ had invested significant resources on RLUIPA enforcement. As a result, under the Bush Administration, the DOJ moved well into the territory of becoming a handmaiden to religion. In particular, it has been called upon, in various cases, to act as the "hammer" to get local governments to cave in to demands made by religious landowners, even when there is no evidence of discrimination.

Rarely has any RLUIPA case involved religious discrimination -- which, of course, would justify federal involvement. Instead, these cases are usually about the location preferences of religious landowners. Moreover, the DOJ has had no compunction about accusing local governments of religious discrimination and then refusing to offer any evidence of the purported basis for such claims. To take just one example, that is precisely what happened to the government of the County of Maui, in Hawaii.

Sadly, on the tenth anniversary of the passage of RLUIPA, the reality is that the Obama Administration has made no changes on this score. The Civil Rights Division, whose jurisdiction includes RLUIPA, issued a 10-year report on RLUIPA last week and it reads like a brief in defense of the law, as opposed to a fair-minded assessment of how the law actually has operated. The Department surely did not ask the hard questions about RLUIPA, and obviously did not interview (or particularly care about the views of) mayors and local and state governments about RLUIPA's interference with local land-use plans and aspirations. No homeowner faced with a new large-scale, non-residential neighbor was asked for his or her views. And there are plenty to ask.

The cases cited in the 10-year report were cherry-picked and the analysis is thin, to put it mildly. In truth, RLUIPA is a federal takeover of local land-use control, and its proponents routinely denigrate interests that communities have put at the top of their agendas, like open-space preservation or water-resource management or traffic control. Not only does the report ignore the many cases that require the federal government to treat local-land use authorities and local community plans with respect and deference, it implicitly presumes that local land-use values are inherently subservient to the demands of ambitious religious landowners.

The 10-year report also spends but one paragraph on the question whether RLUIPA is constitutional, or whether it might fall to either a facial or as-applied challenge. And the report glosses over the fact that RLUIPA land-use cases are moving very slowly through the courts, and statutory interpretation has been the courts' primary role in this first ten years that the statute has been on the books. Nor does the report mention that the sponsors of RLUIPA promised to hold hearings on its impact within three years of its enactment and no hearings have ever been held in either House. Despite the fact that the Civil Rights Division surely knows of the mounting opposition among homeowners and cities to the law, it does not either acknowledge the promises made for hearings or even nod toward the need for a more evenhanded approach to assessing the law.

During the campaign, President Obama may have seemed like a principled man who took the separation of church and state seriously. Now, however, there is little doubt, in light of this most recent report, that his Administration has been captured by religious interests and lost sight of those values he once spoke about so eloquently.

Although Obama, as a candidate, promised a new path, it turns out that he has followed the old one, which Clinton and Bush traveled before him: the path of catering to religious groups and interests, while other worthy goals and interests go by the wayside and our constitutional order suffers.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com .