Religious Act

Religious Land Use and Institutionalized Persons Act of 2000

June 2, 2005
106th CONGRESS

2d Session

S. 2869

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AN ACT
To protect religious liberty, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the `Religious Land Use and Institutionalized Persons Act of 2000′.

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) SCOPE OF APPLICATION- This subsection applies in any case in which–
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
(b) DISCRIMINATION AND EXCLUSION-
(1) EQUAL TERMS- No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
(2) NONDISCRIMINATION- No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(3) EXCLUSIONS AND LIMITS- No government shall impose or implement a land use regulation that–
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF INSTITUTIONALIZED PERSONS.
(a) GENERAL RULE- No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997), even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person–
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) SCOPE OF APPLICATION- This section applies in any case in which–
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

SEC. 4. JUDICIAL RELIEF.
(a) CAUSE OF ACTION- A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
(b) BURDEN OF PERSUASION- If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.
(c) FULL FAITH AND CREDIT- Adjudication of a claim of a violation of section 2 in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum.
(d) ATTORNEYS’ FEES- Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended–
(1) by inserting `the Religious Land Use and Institutionalized Persons Act of 2000,’ after `Religious Freedom Restoration Act of 1993,’; and
(2) by striking the comma that follows a comma.
(e) PRISONERS- Nothing in this Act shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).
(f) AUTHORITY OF UNITED STATES TO ENFORCE THIS ACT- The United States may bring an action for injunctive or declaratory relief to enforce compliance with this Act. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding.
(g) LIMITATION- If the only jurisdictional basis for applying a provision of this Act is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on, or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.

SEC. 5. RULES OF CONSTRUCTION.
(a) RELIGIOUS BELIEF UNAFFECTED- Nothing in this Act shall be construed to authorize any government to burden any religious belief.
(b) RELIGIOUS EXERCISE NOT REGULATED- Nothing in this Act shall create any basis for restricting or burdening religious exercise or for claims against a religious organization including any religiously affiliated school or university, not acting under color of law.
(c) CLAIMS TO FUNDING UNAFFECTED- Nothing in this Act shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this Act may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.
(d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON FUNDING UNAFFECTED- Nothing in this Act shall–
(1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a government as a condition of receiving funding or other assistance; or
(2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this Act.
(e) GOVERNMENTAL DISCRETION IN ALLEVIATING BURDENS ON RELIGIOUS EXERCISE- A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.
(f) EFFECT ON OTHER LAW- With respect to a claim brought under this Act, proof that a substantial burden on a person’s religious exercise affects, or removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, shall not establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any law other than this Act.
(g) BROAD CONSTRUCTION- This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.
(h) NO PREEMPTION OR REPEAL- Nothing in this Act shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious exercise as, or more protective of religious exercise than, this Act.
(i) SEVERABILITY- If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected.

SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.
Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the first amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the `Establishment Clause’). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. In this section, the term `granting’, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION ACT.
(a) DEFINITIONS- Section 5 of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-2) is amended–
(1) in paragraph (1), by striking `a State, or a subdivision of a State’ and inserting `or of a covered entity’;
(2) in paragraph (2), by striking `term’ and all that follows through `includes’ and inserting `term `covered entity’ means’; and
(3) in paragraph (4), by striking all after `means’ and inserting `religious exercise, as defined in section 8 of the Religious Land Use and Institutionalized Persons Act of 2000.’.
(b) CONFORMING AMENDMENT- Section 6(a) of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-3(a)) is amended by striking `and State’.

SEC. 8. DEFINITIONS.
In this Act:
(1) CLAIMANT- The term `claimant’ means a person raising a claim or defense under this Act.
(2) DEMONSTRATES- The term `demonstrates’ means meets the burdens of going forward with the evidence and of persuasion.
(3) FREE EXERCISE CLAUSE- The term `Free Exercise Clause’ means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion.
(4) GOVERNMENT- The term `government’–
(A) means–
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 4(b) and 5, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.
(5) LAND USE REGULATION- The term `land use regulation’ means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
(6) PROGRAM OR ACTIVITY- The term `program or activity’ means all of the operations of any entity as described in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(7) RELIGIOUS EXERCISE-
(A) IN GENERAL- The term `religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) RULE- The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

HOW IT APPLIES TO THE NATIVE AMERICAN CHURCH (NAC)
Opinion by James Flaming Eagle Mooney

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)were authored to remedy the unconstitutional aspects of RIFA and AIRFA. Obviously, when a specific church or one particular group of people, or religious assembly or institution or a specific type of sacrament is stated or named in a Congressional bill, it is unconstitutional because it gives preference to one particular church or one group of people, or a specific religious assembly or institution and or one specific type of sacrament to be transported. RLUIPA clearly states that this is an AAct to protect religious liberty, and for other purposes.

Orrin Hatch spent much time and energy trying to find ways around the issue of naming one specific church or specific sacrament. In RLUIPA there are two points in the scope of the application of this bill that clearly protects the Native American Church and Branch’s (Federally Recognized in 1918) and the transportation of the Native American Church’s Sacrament (peyote).

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) SCOPE OF APPLICATION- This subsection applies in any case in which–
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

The first point, federal protection of religious exercise of a person, including a religious assembly or institution (1) GENERAL Rule – is that the religious exercise of a person or including a religious assembly or institution is protected by this act. The Native American Church was federally incorporated in 1918. The Native American Indigenous Church was founded in 2016 and its founder, Dr. Anthony B. James was blessed and formally adopted by Chief Floyd Realbird, Medicine Tail Coully in 1992.

The second point, federal protection of the cultivation, harvesting, purchasing and transportation of the Peyote Sacrament (2) SCOPE OF APPLICATION (A) stated above applies. The Drug Enforcement Agency (DEA), which is a federal agency which receives “Federal financial assistance”, is in charge of monitoring, protecting and enforcing the laws regarding the cultivation, harvesting, purchase and distribution of peyote. Therefore in (A) the scope of this religious freedom act clearly protects the NAC and peyote in this first point.

The third point made in the scope of application, (B) “the substantial burden” is that it affects “commerce with foreign nations and among the several states and Indian tribes.” There are two important points to be made here. 1.) Peyote is grown and harvested legally within the borders of the United States, in the State of Texas, and therefore must be transported over state lines by the United States Postal Services and/or by a DEA Licensed Distributor and or by a Member of the Native American Church, to the various NAC’s, spread through out the United States and Canada. 2.) It states that if commerce takes place with Indian tribes, this law is also in effect.

Please Note: NAIC Official Church Policy: Although we believe in the rights of Native Americans/ Native American Church/ Native American Tribal Organizations to us particular sacraments which are at this time federally regulated such as Peyote, Ayuhuasca, Cannabis and Cannabis derivatives, Sacred Mushrooms etc. Although the common use in religious rights and traditional medicine practices of many different Native and or Indigenous Tribal societies, these sacraments are still held in controversy and subject to erratic policy, interpretation and enforcement from jurisdiction to jurisdiction. Therefor, until the matter is settled and all of our members able to be in compliance with both traditional rules and modern interpretation of the relevant statute, we, NAIC Tribal Org., Independent and free church organization and our subsidiaries (and or integrated auxiliaries), do not possess, use or distribute any federally regulated substances of any kind whosoever, unless located in a state where the right has been clearly and legally established and or authorized under existing DEA compliance rules where the right has been clearly and legally established. Nor do we use any controlled substances in any of our NAIC Tribal Org. ceremony, practice or medicine unless approved in the State of residence and or by DEA by exemption process. Nor do we promote or allow any non members or the public to participate in NAIC Tribal Org. Ceremonies. All NAIC Tribal Org. Ceremonies are for NAIC Tribal Org. members only. There are literally 10’s of thousands of sacred herbs and substances which are not controversial nor subject to any governmental authority that we can safely and wisely use.