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The Erosion of Rights

On March 21, 2007, The Center for American Progress will sponsor a panel discussion in DC, Moderated by Cassandra Butts, Senior Vice President for Domestic Policy, Center for American Progress and featuring panelists:

Bill Taylor, President, Citizens' Commission on Civil Rights Mark Lloyd, Senior Fellow, Center for American Progress

Peter Zamora, Regional Counsel, Mexican American Legal Defense and Educational Fund

Richard Ugelow, Practitioner-in-Residence, Washington College of Law, American University

With the release of "The Erosion of Rights," the Citizens' Commission on Civil Rights and the Center for American Progress details the detrimental effect that the Bush Administration has had on our nation's civil rights and civil liberties. Since 2000, the administration has allowed the historical tools of the executive branch for civil rights enforcement to collapse, leaving many of our citizens susceptible to unequal opportunity and rising religious and racial intolerance.

"The Erosion of Rights" reveals exactly how civil rights enforcement by the executive branch over the last six years has fallen into a dangerous state of disrepair where the focus has turned to "reverse discrimination" rather than clear patterns and practices of discrimination against African Americans and other racial minorities. The panel of experts will discuss the critical civil rights issues in voting, education, housing, immigration, and communications policies and share recommendations on how to strengthen civil rights enforcement and put the nation back on track in reclaiming the promise of equal opportunity for all.

Check your NPR station on March 21 and in the week thereafter as well as C-Span which may air this important discussion. 
 

Since the nation's founding, houses of worship have been viewed as a cornerstone - literally - of the prototypical American community. The church steeple was considered as much a part of the town square as the schoolhouse or corner pharmacy. But in recent years, an increasing number of congregations that sought to build or expand their facilities have faced repeated challenges from local officials and residents who now, for various reasons, often do not want houses of worship in their neighborhoods.

The running legal battles in these "zoning wars" led Congress in 2000 to pass the Religious Land Use and Institutionalized Persons Act (RLUIPA), which is designed in large part to protect houses of worship from discrimination. The law states: "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a non-religious assembly or institution."

Since then, many RLUIPA cases have been decided in court, and several challenges have worked their way up through the judicial system.

Now, a series of recent and pending court rulings on RLUIPA, including two U.S. Supreme Court verdicts expected by June 2005, could tilt the balance to one side or the other and thereby reshape the geography of America's congregational life.

In February 2005, the Supreme Court heard arguments in Kelo v. the City of New London (Conn.), which concerns the right of a municipality to use the power of eminent domain to evict houses of worship in order to find a taxpaying owner.

In March 2005, in the case of Cutter v. Wilkinson, the Supreme Court heard arguments in a related aspect of RLUIPA that deals with the rights of prisoners who claim to be members of nontraditional religions - in this case, Satanists and Wiccans - to have their faith practices accommodated. Although the court was dealing largely with the "institutionalized persons" portion of the act, its ruling could undermine or bolster RLUIPA's language on land use issues.

Why it Matters
These disputes involve crucial matters of both constitutional principle and communal practice.

The constitutional arguments concern such central issues as the separation of church and state, the Establishment Clause and the boundaries of government accommodation of religion.

But the cases also have a major impact on the practice of faith in America. With more than 300,000 congregations across the country, many communities already have experienced zoning conflicts, and almost every community could eventually be affected by the RLUIPA decisions. The flashpoints run from building permits for new houses of worship to the use of church bells in landmark steeples to parking privileges on days of worship. Inner-city congregations are affected, but the greatest impact may be in outlying areas due to the explosive growth of suburban houses of worship, particularly mega-churches and religious "campuses" that often resemble malls as much as sanctuaries.

The issue also presents a notable paradox: Even as Americans increasingly say they want society to reflect religious values, they are apparently much less enthusiastic about hosting religious congregations in their neighborhoods.

The current Supreme Court cases are also novel in that they have brought together traditional foes from the left and right - such as the American Civil Liberties Union and the American Center for Law and Justice - who have argued on behalf of the RLUIPA.

Background

RLUIPA was passed in 2000 as a successor to the Religious Freedom Restoration Act, the 1993 law that the Supreme Court declared unconstitutional in a landmark 1997 decision, City of Boerne v. Flores. The court said Congress had exceeded its federal authority by setting mandates on a broad range of local and state policies.

With RLUIPA, Congress sought to avoid those pitfalls by tying the law's enforcement power to Congress' fiscal authority on prisons and by confining the religious accommodation aspects solely to land-use issues.

Still, experts say the act could be vulnerable on issues of federalism - that is, the rights of states versus those of the central government - and on church-state questions. Opponents argue that providing accommodation for houses of worship on the basis of religion discriminates against secular institutions.

Experts say the land use battles over houses of worship are unusual in that they affect denominations across the spectrum. New immigrant groups seeking to build their own temples or churches or mosques can face strong local opposition. But established faiths that are moving from cities to suburbs can elicit opposition to their building plans, too. Bias is not necessarily behind it, observers say. Opposition can often come from members of a congregation's own religion.

Quality-of-life issues often come into play, as residents say they do not like the weekend influx of traffic to local houses of worship, or the fact that the buildings are often unoccupied much of the rest of the week.

Some municipal officials - and many taxpaying voters - also object to the tax exemptions that religious congregations receive, and they try to develop congregational parcels into taxable commercial or residential property.

. Roman P. Storzer is a Washington lawyer who has represented dozens of religious groups on land use cases and is one of the country's most experienced litigators in this field. Contact 202-857-9766,
storzer@churchrights.com.

. The National League of Cities has argued on behalf of New London in the Kelo case. The league opposes RLUIPA as burdensome to municipalities. Contact Veronique Pluviose-Fenton, principal legislative counsel, 202-626-3029, Pluviose-Fenton@nlcmutual.com, or the director of media relations, Sherry Appel, at 202-626-3003, appel@nlc.org.

. Dana Berliner is an attorney at the Washington-based Institute for Justice, a libertarian-oriented law firm representing property owners in the Kelo case. Contact 202-955-1300, dberliner@ij.org.

. Ken Masugi is director of the Claremont Institute's Center for Local Government in Claremont, Calif., and is author of the paper "Faith-Based, Not Bureaucracy Bound: How Religious Institutions Can Fight Government Regulations." Contact 909-621-6825, kmasugi@claremont.org.

. The Rev. Barry Lynn is head of Americans United for Separation of Church and State, which filed an amicus brief on behalf of the RLUIPA. Contact 202-466-3234, americansunited@au.org.

. Brad Dacus is president of the Pacific Justice Institute of Sacramento, Calif. The institute is a religious liberty advocacy group that has litigated on behalf of churches, such as the Independent Baptist Church of Sacramento, in land use cases. Contact 916-857-6900, braddacus@pacificjustice.org.

. Derek Gaubatz is senior legal counsel at the Becket Fund for Religious Liberty, an interfaith law firm that aggressively litigates cases involving federal or state religious constitutional issues. He has devoted much of his career to supporting religious freedom. He has authored several briefs that Becket has submitted in cases where religious liberty, particularly RLUIPA, is challenged, and he wrote a forthcoming law review article on the act. Contact 202-955-0095, dgaubatz@becketfund.org.

. Gregory S. Baylor directs the Christian Legal Society's Center for Law and Religious Freedom and serves as chief litigation counsel for Religious Liberty Advocates. The legal society, which is based in Annandale, Va., filed an amicus brief in the Cutter case. Contact 703-642-1070, gbaylor@clsnet.org.

. John W. Whitehead is president and founder of the Rutherford Institute, a Christian defense organization based in Charlottesville, Va., that filed an amicus brief in the Cutter case. Contact through Nisha Mohammed, 434-978-3888, nisha@rutherford.org.

. Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law at the George Washington University Law School and an expert on church-state issues. He took part in the March 2005 Pew Forum panel. Contact 202-994-7053, iclupu@law.gwu.edu.

. Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. Hamilton represented the city of Boerne, Texas, in a successful challenge to the Religious Freedom Restoration Act, the predecessor to the RLUIPA. In amicus briefs she represents organizations opposed to RLUIPA. Contact 212-790-0215 or 215-353-8984, or hamilton02@aol.com.

. Douglas Laycock is a law professor at the University of Texas at Austin. Laycock is a nationally known expert on church-state issues, and he filed an amicus brief in support of the RLUIPA on behalf of the National Association of Evangelicals and the Union of Orthodox Jewish Congregations of America. Contact 512-232-1341, dlaycock@mail.law.utexas.edu.

. The Rev. Richard Cizik is vice president for governmental affairs of the National Association of Evangelicals. The association has filed an amicus brief supporting RLUIPA in the Cutter case. Contact 202-789-1011, rcizik@aol.com.

. Michael Lieberman, Washington counsel for the Anti-Defamation League, says that this case and the recent history of many disparate groups working together for religious liberty have made a number of unlikely allies, allowing people to become friends across partisan lines. The ADL has a long history of working for religious freedom. Contact 202-261-4607, mlieberman@adl.org.

. Marc D. Stern is co-director of the Commission on Law and Social Action of the American Jewish Congress. In the late 1990s the AJC organized the Coalition for the Free Exercise of Religion, which supported the Religious Freedom Restoration Act, predecessor law to RLUIPA. Contact 212-879-4500,
communications@ajcongress.org.

. Eliot Mincberg is legal director of People for the American Way. Mincberg co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise of Religion. Contact 202-467-4999.

. Attorney Gene Schaerr helped draft RLUIPA, testified on its behalf before Congress and has been heavily involved in defending it. He co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise of Religion, the driving force behind the law in Congress. Contact 202-736-8141, schaerr@sidley.com.

. David Fathi is senior staff counsel at the ACLU National Prison Project, based in Washington, D.C., which litigates to enforce the Constitution for those in prison. He has been deeply involved in supporting RLUIPA. The ACLU filed an amicus brief with Americans United. Elizabeth Alexander is project director. Contact 202-393-4930, dfathi@npp-aclu.org.