Cutter, Jon, et al. v. Wilkinson, Reginald (Dir., Ohio Dept. of Rehabilitation and Correction), et al. (05/31/2005)

Question presented: Whether Congress violated the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. " 2000cc-1 through " 2000cc-5, which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control?

BY LORI FRADKIN & ADRIENNE KITCHEN, MEDILL NEWS SERVICE

It's not every day that a Satanist, a witch, a racial separatist and two polytheists unite, but together they are fighting for their right to practice their religious beliefs in prison.

Passed by Congress in September 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA) states that government should not "impose a substantial burden on the religious exercise of a person residing in or confined to an institution" unless it can demonstrate a compelling interest necessitating the imposition. And if government does demonstrate the interest, it must impose the burden using the "least restrictive means" possible. Essentially, prison inmates should be allowed to practice their religious beliefs freely unless the government has a strong reason to prohibit it.

Prior to the enactment of the federal law, inmates in Ohio state prisons filed suits against the Ohio Department of Rehabilitation and Corrections (ODRC), claiming that prison officials were denying them their right to religious exercise.

John Miller and Daryl Blankenship, members of a polytheistic religion called Asatru, claimed that they were not allowed to wear religious medallions, even though the jewelry was similar to that of mainstream religions.

John Gerhardt was a member of the Church of Jesus Christ Christian (Christian Identity Church), whose followers believe that races should be separate. He, Miller and Blankenship claimed they were denied the opportunity for group worship.

Jon Cutter said he was a Satanist, and J. Lee Hampton said he was a Wiccan witch.

All the plaintiffs claimed they were denied access to religious literature. According to their attorney David Goldberger, prisoners can use their inmate accounts to order books, but when the reading material arrives, officials determine whether it is appropriate or if should be sent back or mailed to a designated family member.

Ohio Solicitor General Douglas Cole said officials might also regulate grooming habits that could be used to signify gang membership or religious artifacts that could be used as weapons.

"The notion is the state has an obligation to maintain security in the prison environment," Cole said.

The case originated as three separate suits, and each was amended to include the RLUIPA as a basis for relief once it became law. The suits were combined into one when Ohio moved to dismiss on the grounds that the RLUIPA was unconstitutional.

Ohio argued that the RLUIPA violated the 1st Amendment's Establishment Clause because it acted as a governmental endorsement of religion. It also said the RLUIPA's requirements were not connected closely enough with the federal funds sent to the state to justify use of the Spending Clause of the Constitution.

In addition, Ohio maintained that the federal law wasn't tied sufficiently to state commerce to invoke the Commerce Clause. Finally, it argued that the RLUIPA violated state sovereignty protected by the 10th Amendment and stripped away the "immunity from federal damage suits" granted in the 11th Amendment.

"Congress is trying to interject itself in core state functions," Cole said.

Besides challenging the constitutionality of RLUIPA, the Ohio correction officials said religion was used as a disguise for gang activity within the prisons. They said the RLUIPA led to "degradations of security."

The American Jewish Congress filed a friend-of-the-court brief in March 2001 supporting the constitutionality of the RLUIPA. It said use of the Spending Clause required that a law be enacted in pursuit of the general welfare and the RLUIPA met this condition.

According to the brief, "it was surely reasonable for Congress to have concluded that religious activity by inmates reduces the risk of recidivism or that the general welfare requires respect for certain rights even for those incarcerated by the states." It said Ohio didn't have to accept the federal funds associated with the act if it wanted to "ignore what it deems frivolous complaints."

Supporters of the RLUIPA also argue that it is constitutionally valid under the Commerce Clause because inmates buy religious medallions or literature only available in other states, Goldberger said. In addition, the prisoners themselves are often transferred between jurisdictions.

On Aug. 27, 2001, U.S. Magistrate Terence P. Kemp recommended that the district court deny the state's motion to dismiss. He ruled that RLUIPA is a proper application of the Establishment Clause and Spending Clause. He also held that the law was consistent with the 10th and 11th amendments.

U.S. District Judge Edmund Sargus Jr. adopted Kemp's recommendation about six months later in ruling that the law was constitutional. The state officials then appealed to the 6th Circuit Court of Appeals, whose jurisdiction covers Ohio, Michigan, Kentucky and Tennessee.

Ohio challenged the law on the same constitutional grounds as it had in the district court, but the 6th Circuit panel ruled only on the Establishment Clause. On Nov. 7, 2003, it reversed, unanimously declaring the law unconstitutional as a violation of the Establishment Clause.

In an opinion written by Judge Ronald Lee Gilman, the panel stated that the law "advanced religion by giving religious prisoners a preferred status in the prison community."

"RLUIPA also has the effect of encouraging prisoners to become religious in order to enjoy greater rights," Gilman wrote.

The ruling conflicted with decisions in the 4th, 7th and 9th circuits, which all upheld the RLUIPA.

The Becket Fund, a law firm devoted to defending religious expression, filed an amicus brief in December 2003 urging the 6th Circuit to rehear the case. The document was filed on behalf of the Aleph Institute, the ACLU, the American Jewish Committee, the American Jewish Congress, the Baptist Joint Committee on Public Affairs and the Union of Orthodox Jewish Congregations of America.

The Beckett brief contended that the 6th Circuit's ruling was not a proper application of the Establishment Clause, and cited other Ohio laws whose exclusive purpose was to accommodate religious practices. For example, one statute gives minors the right to drink alcohol for religious occasions. Another allows citizens to vote absentee when an election falls on a religious occasion.

The 6th Circuit denied all petitions for a rehearing, so in April 2004, Goldberger filed a petition on behalf of the prisoners seek Supreme Court review. Despite Ohio's win in the 6th Circuit, the state too urged the high court to accept the case.

"This is an important issue for the Court to resolve because of the circuit split," Cole said.

Because the U.S. government had an interest in defending the constitutionality of a federal law, the Solicitor General's office also filed a brief with the Court. But the office asked the Court to hear a similar case stemming from Virginia (Madison v. Riter, now Bass v. Madison) first because the Ohio case was more complicated and involved more than just the Establishment Clause.

In his brief on behalf of Ohio, Cole asked the justices to consider all constitutional challenges related to the RLUIPA. He said problems could occur if the issues were addressed in isolation: "If the Court reviews only the Establishment Clause issue now, it might sustain the law by, perhaps, a 6-3 vote. Then, in a few years, the Court might sustain the law against the Spending Clause challenge, again by a 6-3 vote—but with a different three Justices in dissent. At that point, a majority of six Justices will have found the law unconstitutional, but the law will stand, as it will have separately withstood both challenges."

Cole also explained the government's interest in not granting all religious rights to the prisoners. "Those whose agendas overlap with disruptive gang activity often invoke demands for religious freedom. For example, plaintiff Gerhardt is a racial separatist, and no one doubts that racial strife is a problem in our prisons," he wrote in his brief.

Goldberger said that if a prisoner is using religion as a cover for gang activity, he or she should not receive protection under the RLUIPA. But he argued the law itself is still constitutional. In the case at hand, Ohio has stipulated that the prisoners' beliefs are part of legitimate religions.

On Oct. 12, 2004, the Court accepted the case for review and allowed Cutter to have his case heard without costs.

Goldberger said his case touches a widespread, prominent issue and explained that the recent presidential election demonstrates this country's focus on religion. But he expressed some worry about the Court's acceptance of Cutter.

"I'm concerned that the Court took our case rather than the Bass case because our clients are quite controversial," Goldberger said. "In a close case, a justice could get distracted by the fact that the clients are so controversial."

The Court is being asked to first decide whether to reverse on Establishment Clause grounds, Goldberger said. If it decides that the 6th Circuit misinterpreted the law, it can either remand the case to decide other constitutional issues or it can decide these issues itself.

According to Goldberger, if the RLUIPA is declared unconstitutional, questions will arise about other situations related to the Establishment Clause, such as the legality of military clergy as full-time employees of the federal government.

Plaintiff Gerhardt emphasized the far-reaching effects of this case in a letter posted on the Christian Identity Web site.

"I personally know of a few hundred around the country, in various prisons and jails, or under some kind of supervision, who have a very keen stake in the outcome of this case. Actually, this case [affects] millions more, outside as well as inside prisons," he wrote.

During oral arguments on March 21, 2005, Justice John Paul Stevens summarized the issue of fair and equal treatment across religions. "Is there anything really at stake here beyond saying ‘treat us the same as you treat members of mainstream religions'?"

Cole, on behalf of the Ohio prisons, claimed that neutrality under the RLUIPA will not work.

"In prison's unique environment, RLUIPA violates the Constitution. It directly and impermissibly advances religion and it would have to be perceived by objective observers as endorsement." Cole said.

Justice David Souter responded: "By recognizing a sphere of accommodation, in effect, I think the Court has said there is a sphere in which religion can be benefited that does not rise necessarily to the level of government proselytization or government endorsement."

Cole said, "Whatever the ultimate outcome on the request is, the request itself gets treated differently and better merely because it's religion."

Justice Sandra Day O'Connor pondered the promotion of religiosity created by RLUIPA. "If you can find some religious group that espouses drinking beer every day or other alcoholic beverages or taking certain amounts of marijuana or no telling what or having certain clothing or other things that would alter the conditions of the prison environment, there's a real incentive here to get religion."

Arguing in support of Cutter and the constitutionality of the federal law, Acting U.S. Solicitor General Paul D. Clement responded, "Every state in the Union provides a degree of accommodation for religion, and in many states, it's majoritarian religions that are accommodated. Now, if there's going to be some incentive to engage in religiosity in prison in order to take advantage of things offered for religion that aren't available for something else, at least RLUIPA has the virtue of making sure that all religions are accommodated neutrally."

Goldberger reinforced the point for Cutter. "As a matter of course, prison officials have to determine whether there's a good faith request for religious accommodation or whether the person is trying to seek something under a ruse."

Cole did not think so. "Can Congress really say, ‘boy, we'd like you to be religious, and the way we're going to provide that incentive is by giving you a better shot at getting out from the rules in prison'?"

An additional issue that was aired was to what extent 1st Amendment rights are, and should be, reduced when an individual is incarcerated?

"Is the concern that this accommodation is unequal because there are other 1st Amendment rights that are not given the same precedence?" asked Justice Anthony Kennedy.

Goldberger responded. "There are numerous accommodations that involve 1st Amendment rights that do not overlap with religious exercise or accommodation of religious exercise."

On May 31, 2005, the Court unanimously upheld the RLUIPA, concluding that it qualifies as a permissible accommodation that is not barred by the 1st Amendment's establishment clause.

Writing for the Court, Justice Ruth Bader Ginsburg concluded that rather than being constitutionally problematic, the federal law alleviates exceptional government-created burdens on private religious exercise. Rather than elevating the accommodation of religious observances over an institution's need to maintain order and safety, the federal law protects prisoners who are unable freely to attend to their religious needs.

Justice Clarence Thomas penned a concurrence to reinforce his view that the establishment clause "is best understood as a federalism provision" that "protects state establishments from federal interference." That said, Justice Thomas concluded that Ohio's vision of the range of protected state authority overreads the clause. "The Clause prohibits Congress from enacting legislation 'respecting an establishment of religion'; it does not prohibit Congress from enacting legislation 'respecting religion' or 'taking cognizance of religion.'"

He concluded: "In short, the view that the Establishment Clause precludes Congress from legislating respecting religion lacks historical provenance, at least based on the history of which I am aware. Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion."