Federalism based Establishment Clause arguments in RLUIPA case

[David Cruz]

On Thu, 21 Oct 2004, A.E. Brownstein wrote:

> [snip]
> Virginia's second argument based on Estate of Thornton v. Caldor suggests
> that government violates the Establishment Clause if it attempts to lift
> burdens on the exercise of religion, not of its own making. Thus, Congress
> can not act to alleviate burdens on the exercise of religion created by
> state governments. This argument would seem to be limited to exemptions
> from neutral laws of general applicability. But could it possibly be
> correct? The newly proposed  religious liberty in the workplace regulations
> that impose a stronger duty to accommodate religious practice on employers
> would be unconstitutional under this analysis. It would also be
> unconstitutional for a state to enact laws that protect the exercise of
> religion against burdens imposed by local governments. A state could not
> pass a law prohibiting school districts from scheduling final examinations
> on religious holidays -- because the school district, not the state, was
> imposing the burden on religion. That has to be wrong, doesn't it?
> [snip]

I'm not certain that the state/local example is a good parallel to the
national/state example.  My understanding is that as a general matter,
local governments (counties, cities, school districts) have power because
state governments grant them it.  The states are said, at least, to have
residual power, not because the national government granted it to them,
but because it was not taken away.  So, one might think that states might
have more EC latitude to alleviate local government-imposed burdens than
the federal government would have over state-imposed burdens.

On the other hand, Thornton rejected a particular law alleviating a burden
imposed by *private* parties, not any level of government, so Virginia
could well be overreading the case.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.