WASHINGTON — A 15-year dialogue of sorts between the Supreme Court and
Congress over how to protect religious practices from excessive government
regulation culminated yesterday in a decision in which the justices said
Congress had finally struck the right balance.
Ruling unanimously in Cutter
v. Wilkinson, the Court upheld a section of the Religious Land Use and
Institutionalized Persons Act — or RLUIPA — that bars prison officials from
restricting inmates’ exercise of religion unless they have a “compelling
governmental interest” to do so.
A group of Ohio inmates who belong to “non-mainstream” religions sued the
state under the federal law, complaining that their religions’ dietary, dress
and ceremonial requirements were being unfairly restricted, in violation of the
First Amendment’s free-exercise clause. The 6th U.S. Circuit Court of Appeals
rejected their claim and struck down the law, ruling that it violated the First
Amendment’s establishment clause by giving primacy to religious rights over
But Justice Ruth Bader Ginsburg said that by accommodating the religious
needs of inmates while still deferring to the security concerns of prison
officials, Congress had navigated appropriately between the sometimes
conflicting demands of the religion clauses.
“Our decisions recognize that ‘there is room for play in the joints’ between
the Clauses [and] some space for legislative action neither compelled by the
Free Exercise Clause nor prohibited by the Establishment Clause,” wrote
Ginsburg. “We hold that Section 3 of RLUIPA fits within the corridor between the
Religion Clauses: On its face, the Act qualifies as a permissible legislative
accommodation of religion that is not barred by the Establishment Clause.”
Ginsburg said that if the high court adopted the 6th Circuit’s hard line,
“all manner of religious accommodations would fall,” including prison chaplains
for mainstream religions.
The “corridor” between the two religion clauses that Ginsburg spoke of has
been under construction, so to speak, for years in the Court’s jurisprudence.
But its formal recognition in the context of RLUIPA won applause yesterday from
religious and civil liberties organizations, including some that are usually on
opposite sides of church-state debates.
“There’s a strong argument to be made that the anti-accommodation reading of
the establishment clause has been dead for a long time, but today’s unanimous
decision removes any lingering doubt,” Anthony Picarello, president of the
Becket Fund for Religious Liberty, said yesterday. “Cutter is a win for
religious exercise in prison, but more importantly, it is a thumping victory for
religion-only accommodations nationwide.”
“This is a sensible decision that affirms the value of religious freedom
while giving correctional institutions the ability to meet their security
needs,” said the Rev. Barry Lynn, executive director of Americans United for
Separation of Church and State.
The inter-branch dialogue began in 1990 when the Court ruled, in Employment
Division v. Smith (II), that generally applicable laws — in that case
anti-drug laws — may restrict religious practices without running afoul of the
free-exercise clause. Congress responded in 1993 with passage of the Religious
Freedom Restoration Act — or RFRA — which barred government from burdening
religions without a compelling interest, and dictated to the courts what
standard to use in reviewing government restrictions.
The high court made the next move, striking down RFRA as applied to the
states on the grounds that Congress had overstepped its authority and had
developed no record to back up its legislation.
Congress went back to the drawing board and passed RLUIPA in 2000, a more
narrowly targeted law rooted in its spending- and commerce-clause powers. The
spending-clause rationale governs the prison section of the law; in other words,
the requirement that prisons accommodate inmates’ religions is written as a
condition for the receipt of federal funds (and all states receive federal funds
for their prisons). Another section — not ruled on yesterday — restricts
governments’ ability to burden religious institutions through land-use or zoning
regulations, and is based on the power of Congress to regulate interstate
The Court yesterday, while giving its blessing to the law’s fealty to the
religion clauses, specifically avoided the question of whether the spending or
commerce rationales are valid. Other cases testing those theories are before the
lower courts, and Ohio could still challenge RLUIPA on that basis. In his
concurrence, Justice Clarence Thomas said the law “may well exceed the spending
power,” though the argument is “undercut” by the fact that Ohio has accepted
federal funds for its prisons.
In published comments after the decision, Ohio Solicitor General Douglas Cole
indicated Ohio would continue to challenge the validity of RLUIPA on other
grounds, and would still deny inmates’ requests in individual cases if their
religious practices posed security risks.