Hamilton on the Unconstitutionality of RLUIPA

Marci A. Hamilton (Cardozo) has posted The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional on SSRN.  Here's the abstract:

The purpose of this Article is to bring to the forefront of discussion bedrock principles of land use law, which have been ignored to date, and to place RLUIPA analysis on a more constitutionally sound base. The Article is divided into three main sections. Section I recounts the history of land use principles from the drive to ordering urban centers in the seventeenth and eighteenth centuries to the development of the rich amalgam of modern practices that now constitute local land development and planning. Section II examines the Supreme Court’s constitutional doctrine of land use law and describes the federal laws that directly or incidentally affect local land uses and shows that these few are cabined within narrowly circumscribed arenas or in fields in which federal coordination of the states is necessary. These laws are readily distinguishable from the sweeping effect of RLUIPA on local land use determinations. Section III then looks closely at Section 2(a), to show how it impacts local decision-making, and operates as a radical and careless interference with settled constitutional principles. In addition, it points out that state courts have a history of rooting out invidious discrimination against religious landowners and invalidating discriminatory or arbitrary zoning and permitting decisions.

Ben Barros

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