From: Alan J. Reinach, Esq.

Re: L.A. Times op-ed article critical of RLUIPA.

This morning's paper featured a scurrilous attack on religious freedom and
organized religion by a Rutgers Professor of political science, Ross Baker.
The article is attached below.  Because of the wide-ranging commentary
critical of the free exercise of religion, this article is significant to
all coalition partners. Also pasted below is our first draft of a letter to
the editor in response.

We would encourage others to submit their own letters.

Religious-Political Mix Makes a Bad Brew
By ROSS K. BAKER

No politician ever lost by standing up too tall for religion. This
imperative lurks behind a mischievous piece of legislation with the curious
title "the Religious Land Use and Institutionalized Persons Act," which
passed both houses of Congress almost by acclamation and is headed for
certain presidential signature. It is a bill that would cause James Madison
and the other authors of the Constitution who abominated government meddling
in religion to gyrate in their crypts. And what is worse, it sails under the
false banner of promoting the free exercise of religion.

The bill has a curious history that began more than 10 years ago with two
employees of a private drug rehabilitation program in Oregon. Both were
Native Americans whose religion required them to use the hallucinogenic drug
peyote. Because it was a controlled substance under Oregon law, the two were
fired and denied unemployment compensation. Claiming religious
discrimination, the workers appealed. The case was ultimately heard by the
U.S. Supreme Court, which held, in effect, that the Oregon law was
reasonable since its principal purpose was not to restrict the free exercise
of religion but to impose a ban on a harmful substance. This was read by a
number of conservative religious leaders as an attack on religion, and they
began to lobby Congress vigorously for a statute to nullify the Supreme
Court decision. Congress complied in 1993 with the passage of the "Religious
Freedom Restoration Act." This legislation said that laws or ordinances by
states or cities had to yield to virtually any manifestation of religious
expression unless there was some "compelling state interest" to restrict a
religious institution or impede an individual practicing his or her
religion. At a time when President Clinton could not get a single Republican
vote for his deficit-reduction package and was gearing up to do battle with
the GOP on health insurance, this bill passed with scarcely a murmur of
partisan dissent.

While it was full of windy rhetoric about protecting religion, its actual
effect was sinister. In practice, it would be almost impossible for a town
to invoke its zoning laws to block the expansion of a church, synagogue or
mosque or to bar a church from razing a historic building to provide
parking. And there would be no way to block new construction of a house of
worship. The same immunity from zoning laws was not granted to businesses or
even nonprofit organizations unconnected to religions. The law had granted a
special right to churches, and the property rights of individuals were
trumped.

Religious congregations are commonly subject to two infirmities: gigantism
and mitosis. They are either so successful that they need to expand, or they
succumb to factionalism, and elements in the church hive off to form new
congregations whose members want to remain close to the church from which
they seceded. Churches, typically, do not pay local property taxes. In towns
strapped for taxable entities, the gobbling up of residential land by
freeloading churches shifts the tax burden to homeowners and commercial
establishments.

One particular horror was visited on the town of Boerne, Texas, where a
Catholic church proposed to demolish a historic building to enlarge its
sanctuary. When the zoning board invoked the town's historic preservation
ordinance to prevent the demolition, the church argued that it was exempt by
reason of the Religious Freedom Restoration Act because the zoning
restriction hampered its free exercise of religion for no reason more
compelling than preservation of a historic neighborhood. This case also
reached the high court, where an unusual combination of liberal and
conservative justices struck down the act in a 6-3 decision, holding that
the law exceeded Congress' constitutional authority.

The religious lobby did not wait long before setting to work on a new bill
that it hoped would get by the withering stare of the high court majority.
Ultimately, it came up with "the Religious Land Use and Institutionalized
Persons Act," which was introduced in the Senate on July 13 and passed the
upper chamber by unanimous consent two weeks later. The renaming of the bill
to also include "institutionalized persons" has its origin in a report that
Jewish prisoners had been denied Passover matzo. If passed, the bill would
force the penal system to accommodate all manner of religious needs of
felons, ranging from vegetarian meals to sweat lodges. Lamentably, moral
ostentation has become one of the deadly sins of American politics. It has
caused otherwise sensible politicians like Sen. Joseph Lieberman to have his
beliefs exploited to inoculate Vice President Al Gore against President
Clinton's pathogens. And when members of Congress recognize the
constitutional flaws in a bill like the Religious Land Use and
Institutionalized Persons Act of 2000 but vote for it anyway--in the
expectation that the Supreme Court will clean up their mess--they compound
their hypocrisy with the base alloy of political cowardice.

- - -

Ross K. Baker Is a Professor of Political Science at Rutgers University
 

My draft response:

Ross Baker's recent attack on the Religious Land Use and Institutionalized
Persons Act (September 11, 2000) demonstrates just why the bill is needed.
Baker displayed an unrestrained hostility toward organized religion sure to
offend all Americans who profess any religious affiliation. To Baker,
churches are just "freeloaders" that abuse tax exemption. Sadly, too many
local governments treat churches with the same hostility, adopting
restrictive zoning schemes to make it as hard as possible for churches to
locate in a community. Minority faiths are most often victims of
discrimination, and denied building or use permits.

Contrary to Baker's revision of James Madison, our founders would be
appalled at a bureaucratic state with unfettered discretion to prevent
churches from locating in a community. They held religious freedom to be a
fundamental right. The modern bureaucratic state treats religion as though
it has no rights, as though the constitution doesn't exist.
The new land use bill properly requires local governments to treat
congregations with respect, and to permit them to locate and to carry out
their ministries. This right is not absolute. Churches must still comply
with customary building, health and safety codes, and other routine
regulations. Contrary to Baker's assertions, the bill gives churches no
right to "trump" property rights of neighbors.

Unlike Baker, most Americans would be appalled to know how disgracefully
local governments too often treat churches. Thanks to Congress, one stain on
our constitutional heritage is now ending