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What Will the Justice Department's Church/State Stance Be Under Alberto Gonzales?
The Future of Religious Land Use Institutionalized Persons Act Enforcement

Thursday, Jan. 13, 2005

The hearings on the nomination of Alberto Gonzales -- President Bush's new Attorney General pick -- went well for Gonzales. He came across as an intelligent, sober, and good man.

One can only assume that the Department of Justice (DOJ) under him will be rather different than it has been under Attorney General John Ashcroft. And that is all to the good. But precisely how will it be different? One answer is that Gonzales is less likely to repeat Ashcroft's mistake of making it the primary mission of DOJ to aid religion, and religious institutions.

The Problem with Ashcroft's Tenure as A.G.: An Overemphasis on Aiding Religion

The fundamental problem, from my perspective, with John Ashcroft's tenure as Attorney General was that he had so little wisdom regarding religion and the federal government. Under our Constitution, government is supposed to exhibit a wholesome, and even benevolent, neutrality toward religion. But certainly, it is not supposed to make aiding religion its number one goal. Yet there were times, at the Ashcroft DOJ, where that seemed to be precisely what he intended.

Of course, Ashcroft has every right to believe whatever he wants, and he has a right to his private free exercise of religion. But the role of Attorney General of the United States should not be made into a bully pulpit for religion.

Ashcroft kicked off his tenure as AG by initiating prayer meetings before the workday in the building. One can only imagine the feelings of those in the Department who did not share his faith - or, perhaps any faith. They had to ask themselves at least once whether they ought not attend, even if they did not believe, just because the boss would be there.

It's like a boss's offer to take out his employees for a drink after work: They may well need to get home, but if they leave, they may always wonder what business and discussions transpired casually, without them.

One is tempted to ask Ashcroft: was there no other venue where he and his fellow believers could have met for mutual prayer? As I explained in a previous column, a government official's actions in connection with the workplace are not private, and must be judged by constitutional requirements.

If Ashcroft was not endorsing religion to his employees (and the country at large) by holding the prayer meetings, it's hard to see why not.

Ashcroft's Special Position: A DOJ Spot Meant to Focus on Religious Issues Alone

The appearance of impropriety was increased when Ashcroft added a position within DOJ that would focus on religious issues. For the position, he chose Eric Treene

-- formerly of the conservative religious organization, the Becket Fund.

One key issue within Treene's area is enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA). Interestingly, 75% of the RLUIPA cases in which DOJ is involved also involve Treene's former organization, the Becket Fund

RLUIPA permits religious landowners to avoid generally-applicable land use laws unless the local government can prove that the regulation serves a compelling interest and is the least restrictive means of regulating in light of the needs of the religious entity.

That is a very demanding test. In constitutional law, it is also the level of scrutiny normally reserved for presumptively unconstitutional government actions - such as those, for instance, that are blatantly discriminatory. But, of course, the sorts of land use laws RLUIPA has had in its sights, e.g., lot size, building size, fire, and setback regulations are neutral, not discriminatory at all. Nevertheless, under RLUIPA, these neutral laws have been treated as though they were, instead, constitutionally suspicious.

As I explain in a prior column, RLUIPA demotes nonreligious landowners to second-class status vis-à-vis religious landowners. DOJ and the Becket Fund have been calling RLUIPA a "civil rights" statute. But in fact, it is a pure religious preference: The so-called record of discrimination against religious landowners is modest at best. In contrast, compelling records of other kind of true discrimination do exist - yet, if recent reports are accurate, DOJ has been significantly less active in addressing these far more troubling records.

DOJ, under Ashcroft, has been quite aggressive in enforcing RLUIPA. DOJ has intervened in numerous cases where the issue of RLUIPA's constitutionality has been raised, as it must. But it has also taken on a prosecutorial role -- investigating various cities for alleged discriminatory treatment of religious landowners. And its investigations have been especially burdensome -- demanding enormous quantities of the city's zoning records, copied at the city's expense.

One Example of Avid, Misguided RLUIPA Enforcement: The Maui Case

Consider an RLUIPA case in Maui, Hawaii. There, the Hale O Kaula Church had bought 5.85 acres of land that was zoned for agricultural use, and located at the end of a private, dead-end road.

The Church then applied for a special use permit -- seeking to construct several buildings, including an 8,500 square-foot chapel and 58 parking spots. While the matter was being considered, neighboring property owners intervened to persuade the county to enforce the zoning regulations (which they should have been doing without pressure from their constituents).

In the end, the county denied the church's proposal. It found that the planned use would, among other things, burden public resources (thereby increasing the need for fire protection and water), and increase traffic and noise to an unacceptable level.

The church sued. Soon, the parties were near settlement. Then the federal government entered into the picture. DOJ charged Maui with discriminating against the Hale O Kaula Church.

In fact, however, there was no actual - or pattern of - discrimination. Taxpayers' money should not be used to do the work of private litigants in such a case. Yet that was clearly what the Church's attorney, at least, wanted; he asserted that it would benefit his clients to allow DOJ to take the "laboring oar" in the case.

Eventually, the DOJ's action and the private action were separated, and the Church reached a settlement with Maui. That left DOJ's ugly charges hanging in litigation. But as soon as the Church got what it wanted, the DOJ moved to have its action dismissed.

In a gutsy move, however, Maui has refused to acquiesce in the dismissal. The County of Maui is demanding that discovery proceed: Doubtless, it wants to either clear its name in the face of the government's charges of discrimination, or else, if some discrimination did occur, to correct it.

If there is to be any justice in this arena, the federal courts will not permit DOJ to do what it seems to have done in the Maui case: to throw around charges of discrimination in order to cow a local government, apparently on behalf of private religious landowners.

If Gonzales Is Wise, He Will Rein In RLUIPA Enforcement Significantly

When Gonzales becomes Attorney General, let us hope he chooses a very different path than his predecessors. DOJ's resources ought to be used for genuine civil rights issues. Let's hope Gonzales's origins and background persuade him to return DOJ to its honorable heritage of true civil rights enforcement against the genuine discrimination that Hispanic Americans, African-Americans, and many others often face.

Let's also hope that as AG, Gonzales has a modicum of respect for the Establishment Clause - so that prayer meetings at the Justice Department, and too-close-for-comfort relationships with entities such as The Becket Fund, are not tolerated under his leadership.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is

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