III. RLUIPA Is a Legitimate Exercise of Congress's Enumerated Powers Under the Enforcement Clause
In City of Boerne v. Flores,30 the Supreme Court reaffirmed a long line of cases holding that section 5 allows for broader remedies as well: legislation that "deters" or "prevent[s]" constitutional violations, "even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into 'legislative spheres of autonomy previously reserved to the States.'"31 Thus, "Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence" but may also prohibit "a somewhat broader swath of conduct."32
Although the Supreme Court has "often acknowledged" that the enforcement power "is a broad power indeed," it is not without limits.33 Boerne also reaffirmed that the Enforcement Clause does not authorize Congress "to decree the substance of the Fourteenth Amendment's restrictions on the States," or otherwise "to determine what constitutes a constitutional violation."34
Therefore, when enforcement legislation prohibits more conduct than existing constitutional protections do, courts will assess whether that increment is permissible prophylaxis or impermissible redefinition. Specifically, "§5 legislation reaching beyond the scope of §l's actual guarantees must exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'"35 Preventive measures are "congruent and proportional" where Congress had "reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional."36 Notably, the Supreme Court's Enforcement Clause decisions have upheld such "prophylactic legislation."37 In light of these principles, the courts have prescribed the following Enforcement Clause analysis. First, the court will "identify with some precision the scope of the constitutional right at issue.'"38 Next, if the statute reaches beyond that constitutional right, the court should "determine whether the statute in question is 'an appropriate remedy' for violations of that right."39
This triggers the "congruence and proportionality" inquiry, which has two components:
1. "[E]xamine whether Congress identified a history and pattern of unconstitutional" conduct to be remedied, Garrett, 531 U.S. at 368. Examining "the legislative record containing the reasons for Congress' action" is "[o]ne means" of determining whether prophylaxis is "an appropriate remedy," but "lack of support [in the record] is not determinative of the §5 inquiry."40
2. Consider "[t]he appropriateness of remedial measures . . . in light of the evil presented [to Congress]. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one."41
In sharp contrast to RFRA, the RLUIPA provisions challenged satisfy this analysis. First, far from redefining the substance of constitutional law, RLUIPA sections 2(a)(1) and 2(a)(2)(C) merely restate that part of the "substantial burden" test from Sherbert42 that remains after it was distinguished in Smith 43 Because these provisions do not "reach beyond" existing "substantial burden" jurisprudence, there is no "remedial" or "deterrent" increment that must be evaluated for "congruence and proportionality."
But even if the statute somehow prohibits action that is not already unconstitutional, any such prophylaxis is "congruent and proportional" to the pervasive constitutional injuries identified to Congress. RLUIPA's legislative history contains an extensive factual record indicating that local governments—frequently and nationwide—impose "substantial burden" on the religious use of land pursuant to zoning schemes involving "individualized assessments"; the record also indicates that such schemes conceal religious discrimination that is difficult (if not impossible) to prove in court. In addition, the challenged provisions of RLUIPA are narrowly tailored, applying only to the precise area of law—zoning and landmarking—where the legislative record indicates the worst abuses.
a. RLUIPA Precisely Targets, According to Supreme Court Precedent, State and Local Land Use Laws That Are Unconstitutional
Section 2(a), when applied through section 2(a)(2)(C), affects only unconstitutional state and local land use laws, because those RLUIPA provisions were designed to codify current Free Exercise Clause "substantial burden" jurisprudence. Specifically, where a land use regulation involving "individualized assessments of the proposed uses for . . . property" imposes a "substantial burden on . . . religious exercise," these provisions require a showing that the burden furthers "a compelling governmental interest" by the "least restrictive means."44 Notwithstanding the following decision, this is precisely what remains of the "substantial burden" test after Smith within the land use context.
1. Even After Smith, Strict Scrutiny Still Applies to "Substantial Burden," but Only When They Are Imposed Pursuant to a System of "Individual Assessments"
In 1963, the Supreme Court held in Sherbert that the Free Exercise Clause mandated strict scrutiny whenever the government imposed a "substantial burden" on religious exercise, even when the burden was incidental.45 For almost 30 years, the Court applied this standard throughout its free exercise cases, but most who prevailed under the standard were claimants for unemployment compensation.46
In Smith, the Supreme Court dramatically narrowed the range of cases where strict scrutiny applied under the Free Exercise Clause. Smith announced the general rule that laws burdening religious exercise trigger strict scrutiny only when they are not "neutral" with respect to religion, or not "of general applicability."47 But Smith did not overrule prior Supreme Court decisions applying strict scrutiny to incidental burdens on religious exercise, where the burdens were also "substantial."48
Instead, Smith distinguished those cases in two ways. Where strict scrutiny applied in Sherbert and other unemployment compensation cases, the Court distinguished them as involving "systems of individualized governmental assessment of the reasons for the relevant conduct."49 The Court distinguished Yoder and all other cases as "hybrid situation[s]" involving "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents . . . to direct the education of their children."50
Smith also emphasized that, when applying the "substantial burdens" analysis, courts must avoid "[j]udging the centrality of different religious practices [because it] is akin to the unacceptable business of evaluating the relative merits of differing religious claims."51
Three years later, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993),52 the Court expressly relied on the rationale of Sherbert, as narrowed by Smith, to invalidate a government action outside the unemployment context.53 In both Smith and Lukumi, the Court used the terms "individual assessment" and "individualized exemption" interchangeably.54 Since 1990, courts have treated "hybrid rights" and "individualized assessments" (or "exemptions") claims as exceptions to the general rule announced in Smith.55 Similarly, other courts have respected the Supreme Court's admonition to avoid evaluating the "centrality" of a belief within a religious system.56
Finally, other courts have applied the "individualized assessments" or "exemptions" doctrine outside the unemployment context.57 In Thornburgh, the Ninth Circuit recognized that, although this exception had emerged in the unemployment context, Smith extrapolated a broader principle for Sherbert and its progeny: "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason."58 Accordingly, the Thornburgh court applied that principle in the immigration context, but ultimately rejected the plaintiff's claim because the facts did not actually involve "individualized assessments."
Thornburgh's rationale for rejecting that particular claim is also important here. The court found that the exemptions at issue were not "individualized" within the meaning of Smith since they "exclude[d] entire, objectively-defined categories of employees from the scope of the statute" and because the system involved "no procedures whereby anyone 'applies' for any of the exemptions."59 Thornburgh also contrasted a system of "individualized exemptions" with the kind of "across-the-board criminal prohibition of a particular form of conduct" at issue in Smith.60
The Tenth Circuit's standard is virtually identical, recently reaffirming that systems of "individualized exemptions" are only those "designed to make case-by-case determinations," and not those "containing] express exceptions for objectively defined categories of persons."61 Like the Ninth Circuit, the Tenth Circuit emphasized the role of particularity and subjectivity, citing corresponding language in Smith.62
In sum, even after Smith, incidental, substantial burdens on religious exercise still trigger strict scrutiny under the Free Exercise Clause, so long as they are imposed pursuant to a system of individualized assessments. And discretionary decisions to deny particular permits to use land for religious exercise often trigger strict scrutiny for that reason.
Almost every court to examine sections 2(a)(1) and 2(a)(2)(C) of RLUIPA has recognized Congress's unmistakable attempt to codify—rather than flout or redefine—existing "substantial burden" jurisprudence under the Free Exercise Clause.63 Indeed, Congress made absolutely explicit in the legislative history its purpose to codify this especially common form of Free Exercise Clause violation in order to facilitate enforcement, as can be seen by the fact that RLUIPA does not offer its own...
