A Concrete Example

[Rick Duncan]

Marci writes:

"Rluipa does not protect against the violation of constitutional
rights.  It is a sui generis statute that gives them much more.   The
FHA outlaws discrimination. Despite the engineered legislative history
of rluipa the cases have not turned on findings of discrimination by a
long shot."

I reply: 

Actually, the general rule of RLUIPA (no substantial burdens) arguably
does nothing more than enforce the "individualized process" rule of Smith
and Sherbert (as the Court now understands Sherbert). As Doug Laycock once wrote, land use laws (variances, special use permits, etc) are one of the most individualized of all bodies of law.

And the equal terms rule arguably enforces the Smith rule protecting free exercise from non-generally applicable burdens.

Sounds like a civil rights law to me!

Cheers, Rick

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902


"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)

--- On Thu, 6/25/09, hamilton02 at aol.com <hamilton02 at aol.com> wrote:

From: hamilton02 at aol.com <hamilton02 at aol.com>
Subject: Re: A Concrete Example
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Date: Thursday, June 25, 2009, 9:37 AM

Rluipa does not protect against the violation of constitutional rights.  It is a sui generis statute that gives them much more.   The FHA outlaws discrimination. Despite the engineered legislative history of rluipa the cases have not turned on findings of discrimination by a long shot.   
Marci
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Eric Rassbach <erassbach at becketfund.org>

Date: Thu, 25 Jun 2009 11:05:06 
To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu>
Subject: RE: A Concrete Example


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