Wednesday, October 11, 2006

Free exercise, non-establishment, and a sabbath house ...

   Perhaps the starkest potential clash on the face of the Constitution exists between the freedom to exercise religion and the prohibition against establishment of religion.  When a government regulates a land use that is religious, it is violating the right to free exercise?  If it excuses the religious land use from the regulation, is it then violating the non-establishment clause?   

   Such a dispute is playing out in Suffern, New York, where the local government has denied a variance by an Orthodox Jewish organization that provides meals and lodging to those who are visiting relatives or friends at a nearby hospital on the Sabbath.  By using the house, Orthodox Jews can avoid driving or other religiously-prohibited actions on the Sabbath.

   The federal government last week sued the village of Suffern in federal court, alleging that the denial of the variance violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5, which makes it unlawful for a local government to “impose[] a substantial burden” on a religious land use, unless the government is using the “least restrictive means” of furthering a “compelling government interest.”    

  Does Congress have the authority to go beyond the words of the Constitution to foster free exercise, in the face of the tradition of local control of land use? 

http://lawprofessors.typepad.com/land_use/2006/10/free_exercise_n.html

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