By ROBERT F. DRINAN

A law protecting religious freedom passed by Congress and recently signed by President Clinton will not in all probability bring about major changes in American life. But the Religious Land Use and Institutionalized Persons Act of 2000 gives more guarantees to church-related entities in zoning cases and to persons in prisons, mental hospitals and similar state entities.

This bill, designed to stop discrimination based on religion, was the result of the concerted efforts of 60 religious groups, including the U.S. Catholic Conference.

The denial of zoning variances to churches continues to be a widespread practice in the United States. This writer saw it vividly in a recent case in New Jersey where a Protestant Evangelical church was denied the right to purchase some six acres to relocate its building. The parish, which had been in the community for almost 100 years, was asking for privileges given to every other religious body including the Catholic church. But the owners of property abutting the land sought by the church put forth arguments about alleged traffic congestion and defeated the church’s request. That request, however, may be granted on appeal.

Congress collected evidence that similar denials of fundamental rights to churches and synagogues happen all over the nation. The new bill requires that in any case involving the use of land or property by a church-related body the government is required to prove that it has a compelling reason to deny the permission requested and that the constraint it imposed on a religious entity is the least restrictive of available options.

This is a traditional legal test derived from cases testing the power of the government to impose restrictions on persons or groups. It does not mean that churches or synagogues will always prevail but it does provide that there will be a higher standard or a stricter scrutiny required when the group requesting the variance is faith-based.

The second objective of the act is to provide greater assurance of religious freedom to persons who are institutionalized, especially those in prison. In 1993, Congress enacted the Religious Freedom Restoration Act. Although the application of that law to the states was invalidated by the U.S. Supreme Court, the law is still applicable to federal prisons.

Although some observers had predicted that the law would allow frivolous claims to be litigated by individuals in federal prisons, this has not happened. In the past six years, only 65 claims were filed by prisoners under the Religious Freedom Restoration Act. These claims were more meritorious than most prisoner complaints.

The rights available by law to inmates in federal prison are now under the new law available to those incarcerated in state prisons. It is still possible that federal courts may decree that Congress has gone beyond its authority in passing this higher standard of review for state prisons. But Congress has anchored its authority in an explicit reference to the spending clause in the Constitution as well as to the interstate commerce clause.

The new law gives no guarantee that state prisoners will prevail in any case based on religious freedom. Courts have recently, for example, held that federal prisoners have no right to receive the consecrated wine in a Catholic Mass but only the sacred bread. The policy of a total ban on alcohol prevails.

The enactment of the new bill is the culmination of many efforts by Congress over the last decade to guarantee the religious freedom of churches and faith-based entities. In 1990, the Supreme Court in the Smith decision put aside what was thought to be a well-settled area of the law. Congress enacted the Religious Freedom Restoration Act to reverse the Smith decision. The Supreme Court thought that Congress had exceeded its authority.

Congress has now responded to the court’s strictures. It is hoped that the recent exaltation of religious freedom by Congress will help those faith-based organizations and individuals who have experienced in subtle and hidden ways an infringement on their free exercise of religion guaranteed by the First Amendment to the Constitution.

Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center. His e-mail address is drinan@law.georgetown.edu

National Catholic Reporter, October 13, 2000

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