Monday’s Argument in Cutter v. Wilkinson

The battle between Congress and the states over the Religion Clauses continues this Monday, when the Court will hear argument on the constitutionality of a statute imposing on states basically the same strict scrutiny test imposed by the Religious Freedom Restoration Act of 1993 – which the Court struck down in City of Boerne v. Flores in 1997. The new statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), applies to a much narrower set of circumstances (institutionalized persons and land use laws, the latter of which are not at issue here) than did the all-encompassing RFRA. More importantly, RLUIPA does not rely on Section 5 of the Fourteenth Amendment to supply Congress with the affirmative power to enact it, but on the Spending and Commerce Clauses.

Petitioners are a group of prison inmates practicing various “non-mainstream” religions (Wicca, Satanism, Asatru, and the Church of Jesus Christ Christian) who sued the Ohio Department of Rehabilitation and Correction for restricting their ability to practice their religions. The question presented is “[w]hether Congress violated the Establishment Clause by enacting the [RLUIPA], which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control.” Professor David Goldberger of The Ohio State University College of Law is arguing for petitioners, and Acting Solicitor General Paul Clement has also been granted time for argument for the United States, which intervened in support of petitioners. Ohio State Solicitor Douglas R. Cole will argue for respondents.

Section 3 of RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the burden “is in furtherance of a compelling governmental interest,” and “is the least restrictive means” of furthering that interest. The statute only applies when the substantial burden “is imposed in a program or activity that receives Federal financial assistance” or “affects, or removal of that substantial burden would affect,” interstate or foreign commerce. Ohio currently receives approximately $25 million in federal funding for its prisons, which it has used, according to respondents, “in such specific areas as prison construction, sentencing policy, educational programs and drug treatment.”

Collectively, petitioners contend that, in violation of their First and Fourteenth Amendment rights (and, later, RLUIPA), prison officials refused to allow them to purchase certain religious books or items and wrongfully denied their group worship rights. A federal magistrate judge in Ohio denied respondents’ motion for summary judgment on the issue of RLUIPA’s unconstitutionality, and the district judge adopted the magistrate judge’s recommendation.

The Sixth Circuit reversed, in an opinion available here. It acknowledged that two circuits (the Seventh and Ninth) found RLUIPA constitutional but, after engaging in the three-part Lemon analysis, nonetheless concluded that RLUIPA “impermissibly advanc[ed] religion by giving greater protection to religious rights than to other constitutionally protected rights.” It offered as an example confiscation of the same piece of “white supremacist literature” from two inmates: the inmate claiming a religious motivation for receiving the literature would have “a much better chance,” under RLUIPA’s strict scrutiny test, of forcing Ohio corrections officials to return the literature than would “the non-religious inmate.” The Sixth Circuit held that such disparate treatment violates the Establishment Clause’s mandate of religious neutrality. Moreover, RLUIPA actually “has the effect of encouraging prisoners to become religious in order to enjoy greater rights.” Finally, RLUIPA goes much further than necessary to avoid a violation of the Free Exercise Clause – much further than the accommodation approved in Corporation of Presiding Bishop v. Amos, where “the exemption . . . was arguably necessary to avoid a violation of the Establishment Clause.”

In their brief, available here, petitioners characterize the Sixth Circuit’s decision as “falling into the trap of treating an accommodation as per se having the purpose or effect of advancing religion” – a trap they argue is actually precluded by the holdings of cases such as Presiding Bishop. In their view, RLUIPA is a simple accommodation of religion, lifting a governmental burden on religious exercise rather than providing any “gratuitous benefit for believers.” The Court itself invited governments to make just this sort of accommodation in cases like Employment Division v. Smith; while it might not be required by the Free Exercise Clause, it clearly fits within the “play in the joints” between that Clause and the Establishment Clause. Were the Court to treat RLUIPA’s accommodations as gratuitous benefits to religion, “[v]irtually all legislative and administrative religious accommodations would be rendered unconstitutional.” As for the Sixth Circuit’s argument that RLUIPA violates the Establishment Clause because it “giv[es] greater protection to religious rights than to other constitutionally protected rights,” petitioners respond that this is a “novel ground not argued by Respondents” and not supported in the Sixth Circuit opinion by any Supreme Court precedents; moreover, they argue, both of the district court cases cited by the Sixth Circuit in support of this proposition were subsequently overruled or reversed.

The United States, in its supporting brief (available here), notes the “substantial evidence” Congress “collected during three years of hearings that, in the absence of federal legislation,” institutionalized persons “face substantial, unwarranted, and discriminatory burdens on their religious exercise.” It particularly emphasized RLUIPA’s purpose of “ensur[ing] equality in accommodation practices,” which it argued was more faithful to Religion Clause values than a “process of piecemeal accommodations” that leads to the very real problem of selective accommodations of only “mainstream religions.” It also sought to focus the Court on the particular “context of institutionalized persons, whom the government has deprived of the resources, freedom, and physical capacity independently to meet their own religious needs” – a context in which “[t]he need for evenhanded accommodation of religious exercise is at its apex.”

Respondents argue in their brief, available here, that the case isn’t simply about accommodation, but about “whether Congress can demand that States provide religious accommodations in their prisons – accommodations that go beyond those the Constitution requires, and that compromise prison security.” They repeatedly emphasize the last point, explaining that “prison gangs often claim religious status to further their illicit ends,” and describing the violence and racial hatred espoused by the religious groups with which several of the petitioners are affiliated. RLUIPA is “a pro-religious tool,” one that, “[i]n prison’s unique environment, where benefits for some impose burdens on others, and very little goes unnoticed by prisoners, . . . has the impermissible effects of advancing religion and strongly encouraging religiosity.” Moreover, it impermissibly burdens third parties, by “degrad[ing] security,” “impos[ing] significant administrative burdens,” and actually “limiting the quantity and quality of religious services” by “increas[ing] administrative demands” on chaplains. In response to petitioners’ contention that respondents’ position conflicts with Supreme Court precedent upholding religious accommodations, respondents argue that “[t]he question is one of degree,” and that “the accommodation here is so overwhelming that it clearly crosses that line, whatever its precise location.”

Respondents also embrace a “federalist reading” of the Establishment Clause to argue that RLUIPA’s intrusion on state sovereignty violates the First Amendment. Under that reading, “federalist principles enshrined in the Establishment Clause” reserve for the states an “inalienable” “right to control their religious policy choices” (within the limits of the Establishment Clause and the Free Exercise Clause). Even though incorporation of the First Amendment via the Fourteenth means “States can no longer establish preferred churches, . . . Congress is as unable as ever to contravene constitutionally permissible State choices regarding religious policy.” Petitioners respond that this argument has been waived but in any event is inconsistent with incorporation of the First Amendment via the Fourteenth Amendment as well as contrary to numerous Supreme Court Establishment Clause precedents. The United States argues additionally that RLUIPA still allows states to make their own incorporation choices (though they may have to give up federal funds to do so), and that respondents’ argument that there are “two different Establishment Clauses” in the Constitution “misreads history.”

Finally, respondents contend that RLUIPA’s intrusion on state sovereignty also fails constitutional muster under the Spending and Commerce Clauses. It is not a valid exercise of Spending Clause power since “none of Congress’s state prison funding is in any way related to the religious interests that RLUIPA advances,” and it “is not enforced by the withdrawal of federal funds” but by “compel[ling] States, by way of a federal court order, to change prison operations.” Nor is it a valid exercise of Commerce Clause power since the activities regulated are “non-commercial in nature.” Petitioners dispute these arguments, but also argue that the Court should not reach them since the Sixth Circuit did not address either (and the district court addressed only the Spending Clause argument).