This paper, prepared for a Symposium at the Benjamin Cardozo School of Law to mark the 20th anniversary of the Supreme Court’s decision in Employment Division v. Smith, focuses on the constitutionally appropriate forms for, and limits on, government protection of religious freedom. Part I articulates in general terms the primary constitutional strategy of mandatory accommodations – protection of religion and its secular analogues in matters of speech, association, and equality – and the limits on such accommodations, with an emphasis on a jurisdictional limit to the state’s capacity to decide questions of religious significance. Part II extends this concept of a jurisdictional limit to permissive accommodations, and analyzes the role of that limit in the interpretation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Part II argues that many of the land use provisions of RLUIPA can be constitutionally applied without official decision-makers violating that jurisdictional limit, but that some applications of the land use provisions, and a significant number of applications of the institutionalized persons provisions, raise profound problems of state exercise of religious authority.
GW Paper Series
GWU Legal Studies Research Paper No. 520; GWU Law School Public Law Research Paper No. 520
Ira C. Lupu & Robert W. Tuttle, The Forms and Limits of Religious Accommodation: The Case of RLUIPA, 32 Cardozo L. Rev. 1907 (2011).