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Court: Congress strikes right religious-protection balance

By Tony Mauro
First Amendment Center legal correspondent

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 other rights.

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 commerce.

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.


Unanimous Court upholds RLUIPA

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Quick look at Cutter v. Wilkinson
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