Thursday, October 12, 2006
This fits well with this week's theme at Propertyprof. Elizabeth McNeill (Northwestern University - School of Law) has posted The Current Court and the Religious Land Use and Institutionalized Persons Act: An Analysis of the Next Potential Contendor for Commerce Clause Restriction on SSRN. Here's the abstract:
The RLUIPA is at the center of a political firestorm that touches on eminent domain, church and state separation, and basic principles of federalism. In 2005, the Supreme Court considered a challenge to the constitutionality of the RLUIPA; considering only the Institutionalized Persons component of the law, the Court upheld it against an Establishment Clause challenge. However, the Court declined to consider Commerce Clause and Spending Clause challenges. It has yet to consider the constitutionality on any grounds of the religious institutions portion, which protects religious structures from zoning and land use regulations. Significantly, the Senate is currently considering expanding the RLUIPA to also protect churches and religious-owned property from eminent domain. Of further significance is the new balance in the Court with the exit of Justice O'Connor and the appointment of Justices Roberts and Alito.
This Article will consider, from political, legal, and statistical standpoints, the likelihood that the RLUIPA will be the next Congressional Act overturned by the Supreme Court for exceeding the bounds of the Commerce Clause.
[Comments are held for approval, so there will be some delay in posting]