Note

Incarceration, Accommodation, and Strict Scrutiny

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires the application of strict scrutiny to policies substantially burdening the religious exercise of prisoners. Although RLUIPA was passed without dissent, critics and commentators have tended to accept three skeptical claims about the use of strict scrutiny in this context: (1) changes in the formal level of scrutiny applicable to claims for religious accommodation are irrelevant to case outcomes; (2) even the most sympathetic statutory language will not improve prisoners’ chances of success in seeking accommodations; (3) using the language of strict scrutiny in prison cases will diminish its force in other areas of the law. 

This Note challenges these skeptical conclusions. Since RLUIPA was passed in 2000, federal courts have reviewed hundreds of claims brought by prisoners seeking accommodations. Some federal circuit courts have continued to defer to the judgment of prison administrators when denying exemptions. Other federal courts, however, are employing a more rigorous form of review, taking a “hard look” at prison policies that burden religion, and reviewing carefully the claims of prison administrators. Moreover, rather than diluting strict scrutiny in other areas of the law, these courts are using doctrine from outside of the accommodation context to resolve prisoner claims. The emergence of a searching form of review in the prison context is surprising. After detailing an emerging conflict among the federal courts of appeal, this Note argues that firm constitutional footing, statutory specificity, and the importation of searching review from equal protection and free speech cases all help to explain this unexpected development. This Note concludes with some thoughts about how proponents of religious accommodation should proceed in light of the limited but real success of RLUIPA.

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

This paper argues that § 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the Federal Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights. Although Virginia’s statute is unique, its implications with respect to the ability of the government to regulate religious polity and the role of courts in resolving church property disputes are broadly applicable and recent litigation involving the statute is being watched closely across the county.

Section 57-9 highlights historic uncertainty regarding the scope of free exercise rights for religious institutions, particularly in the context of church property. In the face of this uncertainty, three possible applications of the statute are addressed. One considers the statute most narrowly within the context of the “neutral principles of law” approach for resolving church property disputes. A second discusses § 57-9 as a neutral and generally applicable law. Finally, a third considers the statute broadly, as a special statute that regulates property holdings of religious institutions. Despite the various ways to characterize the statute, under each view § 57-9 violates the free exercise rights of the religious institutions it regulates.

Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

Some public choice-influenced scholars claim that voluntary interlocal bargaining can effectively address city-suburb wealth disparities. On this view, economic interdependence encourages (comparatively) affluent suburbs to enter into “burden-sharing” agreements with cities, diminishing the need for so-called regional governments. This perspective holds that Virginia’s distinctive system of city-county separation is uniquely well-suited to the formation of such agreements. Interlocal burden sharing is rare in Virginia, however, and proponents’ example of such burden sharing—a tax base sharing scheme between Charlottesville and Albemarle County—is deficient in several respects.

This Note thus challenges the invocation of Virginia as a model to which other states might aspire. The paucity of burden sharing and the deficiencies of existing agreements stem from two weaknesses in the bargaining thesis. First, the conditions necessary to bargaining are frequently absent. For instance, Virginia’s annexation moratorium eviscerates cities’ bargaining power against counties. Second, and more fundamentally, the bargaining thesis neglects structural disincentives to bargaining resulting from Virginia’s system.

The weaknesses of the bargaining thesis have important repercussions for addressing interlocal inequities. Although some call for regional governments to cure disparities, such reforms are substantively undesirable and politically unfeasible. Similarly, Virginia’s now-dormant annexation system was problematic. Although annexation enhanced cities’ bargaining power, it also produced bitter conflicts. The annexation system also failed to promote significant burden sharing. Several reforms would realign suburban counties’ bargaining incentives, providing a means by which existing governmental entities can address metropolitan disparities. 

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