For all nine justices of the current U.S. Supreme Court to agree on anything
is rare enough. But when the topic is religion, a unanimous decision borders on
Well, prepare to say “amen.” On May 31, the Court ruled 9-0 that the
Religious Land Use and Institutionalized Persons Act (RLUIPA) does not violate
the establishment clause of the First Amendment.
Although the case, Cutter
v. Wilkinson, involves religious freedom claims made by prison inmates
in Ohio, the decision by the Supreme Court addresses a much broader question: Do
legislatures unconstitutionally favor religion when they pass laws like RLUIPA
that seek to accommodate religious practice? The answer to that question affects
thousands of laws protecting religion and millions of Americans of every
When RLUIPA was enacted in 2000, Congress wanted to accommodate religion by
preventing prison officials from imposing a substantial burden on the religious
practices of inmates — unless there is a compelling reason to do so and no
less-restrictive way to protect the prison’s interests. Last year, the 6th U.S.
Circuit Court of Appeals struck down RLUIPA as an unconstitutional violation of
the establishment clause, ruling that the law unduly favors religion.
The justices of the Supreme Court unanimously disagreed. Writing for the
Court, Justice Ruth Bader Ginsburg affirmed that the establishment clause
“commands a separation of church and state.” But separation doesn’t mean
ignoring religion. “Our decisions recognize” she wrote, “that ‘there is room for
play in the joints’ between the clauses, some space for legislative action
neither compelled by the Free Exercise Clause nor prohibited by the
The Court’s “play in the joints” means, for example, that the free-exercise
clause doesn’t require the military to allow members of the armed forces to wear
religious head coverings such as yarmulkes (as the Supreme Court ruled in 1986
v. Weinberger). But the establishment clause doesn’t prevent Congress
from passing legislation that permits military personnel to wear religious
headgear while in uniform (as Congress did in 1987).
In fact, many state and federal laws accommodate religion — and religion
only. Ohio, the very state that challenged RLUIPA, has such laws, including one
that exempts people with religious objections from certain vaccination
The previous high-water mark for legislative accommodation of religion was
another unanimous decision by the Supreme Court in Corp. of Presiding Bishop
v. Amos (1987). In that case, the Court upheld a section of the Civil Rights
Act of 1964 (as amended in 1972) exempting religious organizations from the
prohibition on religious discrimination in employment. This provision protects
the freedom of religious organizations to hire members of their own faith.
Although the difference between permissible accommodation and establishment
of religion is sometimes murky in Court decisions, the justices have drawn some
general lines. It’s clear from past cases that legislative accommodations may
not promote religion or require government funding of religion. And all
religions must be treated equally. But if the aim is to relieve religious people
or organizations from substantial burdens imposed by government laws or
regulations, then the accommodation is probably constitutional.
The Cutter decision doesn’t end the debate over RLUIPA’s constitutionality.
The Court was silent about the whether or not Congress has the power to pass
such legislation under the spending- and commerce-clause provisions of the
Constitution. And the “land use” section of RLUIPA was not at issue in this
case. Challenges on those fronts are already before lower courts.
But Cutter does signal more room for “play in the joints” between the
free-exercise and establishment clauses of the First Amendment. And the likely
result will be more laws — perhaps broader laws — that protect the free exercise
of religion from impositions of state power.
The Supreme Court’s decision in Cutter may not have generated much
news media interest. But if you care about religious freedom, it’s big news.