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The Supreme Court Considers Legislation on Prisoners' Religious Requests:
Interpreting the Religious Land Use and Institutionalized Persons Act

Thursday, Apr. 07, 2005

On March 21, the Supreme Court heard oral argument in Cutter v. Wilkinson. The case addresses whether the prison provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) violate the U.S. Constitution's Establishment Clause.

The U. S Court of Appeals for the Sixth Circuit said yes, but others disagreed. With a split in the Circuits, the U.S. Supreme Court took up the question.

The Analysis of Prisoners' Religious Requests Before RLUIPA's Passage

Before RLUIPA purported to change the law, the Supreme Court had counseled that courts should exhibit great deference to prison officials when reviewing their decisions.

The Court accordingly declined to apply strict scrutiny - the most difficult level of constitutional review - to prison officials' decisions. (Strict scrutiny - known to lawyers for being "strict in theory, fatal in fact" - means the Court will invalidate a law unless the government can show that it furthers a compelling state interest, and unless the law is narrowly tailored to serve that interest.)

Whether the applicable free exercise standard for prison regulations is intermediate scrutiny or rational basis review remains unclear - but it is clear that the applicable standard is far more permissive than strict scrutiny. In 1987, in Turner v. Safley, the Court imposed at most an intermediate level of scrutiny for rights in general, though one charged with great deference to the security assessments of prison officials. In contrast, O'Lone v. Estate of Shabazz - also decided in 1987 - simply applied what is called rational basis review for inmates' free exercise claims - merely asking if the decision at issue had a rational basis.

In 1990, the default rule for all free exercise cases was enunciated in Employment Div. v. Smith. There, the Court held that there is no religious defense to the enforcement of generally applicable, neutral laws. That holding strongly suggested that prisoners' religious objections to generally applicable prison regulations, too, could not support a constitutional challenge.

Smith was a groundbreaking case. Previously, some Supreme Court Free Exercise precedents had applied strict scrutiny -- though not in the prison context, and only if the religious practice was held to be central to the believer's system of belief. But Smith returned to the simple, long-established, and sensible rule that neutral, generally applicable laws should not be subject to strict scrutiny.

At the same time, Smith also jettisoned the centrality requirement - rightly reasoning that it was unseemly for courts to try to decide which beliefs are central to an individual's belief system, and which are peripheral.

How RLUIPA Imposed a "Strict Scrutiny" Standard

Then, along came RLUIPA - which imposes on prison systems a strict scrutiny the Court previously held was not the correct standard, coupled with a capacious definition of the term "religious exercise."

Specifically, RLUIPA provides that a prisoner's request for religious accommodation in a state prison may not be denied unless the state proves that the denial satisfies a compelling state interest, and that it is the least restrictive means of regulating with respect to the particular request. (The latter is the most extreme way of phrasing part of the "narrowly tailored" requirement.)

Moreover, RLUIPA not only raises the standard Courts must apply and prison administrators must follow, but it also sweeps in a whole new set of prisoner requests on the ground that they count as religious. Indeed, the statute redefines "religious exercise" to include every conceivable religiously-tinged motivation for conduct.

Based on this definition, even a prison request that lacks overtly religious content - for instance, it is not based on accepted practices, nor does it request religious texts or objects - may still be deemed religious.

Plainly, then, RLUIPA requires the states to observe a standard the Supreme Court has never imposed on them under the Free Exercise Clause.

Even Without RLUIPA, Prisons Have Willingly Accommodated Reasonable Religious Requests

One might think, from RLUIPA's strict standard, that it addressed a situation in which prisoners were greatly oppressed. But that would be wrong.

Given the huge variety of religious faiths in the United States, prisons have their hands full trying to keep a secure prison along with accommodating as much religious practice as they can. The requests are legion - ranging from regular meetings with co-religionists; to special diets (kosher, vegetarian, vegan, vegetarian with fish, vegetarian with no potatoes, and so on); to hair and beard lengths; to reading materials; to objects for worship, such as oils, amulets, altars, and jewelry.

Yet prisons have always found it to their advantage to accommodate religious practices to the extent practicable. That is because, in general, a prisoner that has found a larger meaning for his or her life is often a more productive and less violent prisoner. (Of course, the exception that proves the rule is the growing numbers of prisoners who are white supremacists and who preach violence inside and outside the prisons.)

The Key Question: Where Can a Prison Draw the Line On Religious Requests?

So the question here is not whether religious practices should be accommodated in order to respect inmates' religious liberty: They already are.

The question, instead, is this: Where can the prison administrator draw the line? When can he or she deem a request too costly, or too threatening to institutional security?

Drawing this line, on any given day, is no easy task. And that task is even harder when the federal government decides that the state prisons should hew to a line more restrictive than the U.S. Supreme Court has held that the Free Exercise Clause requires.

Does RLUIPA's New Standard Make a Difference? You Bet.

Oddly, at oral argument, some of the Justices of the Supreme Court seemed to think RLUIPA's sweeping changes to the law relating to prisoners' religious requests were no big deal.

For instance, it was suggested that since security is invariably a compelling interest, the compelling interest test will be easy to satisfy. That may be so, but what about the other changes RLUIPA makes to prior law - requiring that the decision on the request be the alternative least restrictive of the particular prisoner's religious liberty, and defining a "religious" request exceptionally broadly? To the extent Justices suggested RLUIPA isn't a dramatic change to the law, they were unconvincing.

No more convincing is the argument - made by the acting Solicitor General and the inmates' counsel - that even without RLUIPA, over half the states would employ strict scrutiny anyway, when interpreting claims under their own state Constitutions' free exercise clauses. For this reason, also, it is urged that RLUIPA's legal changes are no big deal.

Again, however, that's simply not true. To begin, what about the rest of the states? They can hardly be ignored. And even those states that do sometimes apply strict scrutiny, do not do so (in language or in fact) in every scenario.

These realities mean that "no harm, no foul" arguments do not work for RLUIPA. RLUIPA was meant to make a sweeping change in the law. That's exactly what it did. To now pretend otherwise is bizarre.

Among the other changes it wreaks, RLUIPA forces prison administrators to shape the prison's accommodation policies on a prisoner-by-prisoner basis. Under RLUIPA, the accommodation made by the prison must be the "least restrictive means" (in that it least restricts religious exercise) for this prisoner -- who now holds a right to enter federal court on whatever prison regulation is not meeting each of his demands for religious accommodation.

The result is that any federal judge who can imagine a less restrictive means for a prisoner to be accommodated now has the capacity to, in effect, direct prison operations from the bench. The result is also that any hope of making general regulations that would be fair as among different prisoners, is gone.

The Court seems to have missed the point prison administrators make repeatedly, which is that if there is an iota of perceived difference in treatment in prison, order and security suffer. Prisoners have a great deal of time on their hands to contemplate "slights" by prison officials, and they will retaliate with bad behavior, or with RLUIPA suits, expensive federal litigation that drains resources away from other prison programs.

The Establishment Clause Issue: Does RLUIPA Clash With the Constitution?

I have explained above why RLUIPA dramatically broadens the scope of rights previously recognized under the Free Exercise Clause. Now, I will turn to the question before the Court: In trying to, in effect, broaden Free Exercise rights, does RLUIPA run afoul of the Establishment Clause?

(The case also raised a second question, but the Court seems untroubled by it. The question is: What part of the Constitution gave Congress authority to pass RLUIPA? The Court seems to find sufficient authority in the Spending Clause. So it appears unlikely that RLUIPA will meet the same fate as its unconstitutional predecessor the Religious Freedom Restoration Act (RFRA), which I have discussed previously, and which was predicated on Section 5 of the Fourteenth Amendment. RFRA was declared unconstitutional as applied to the states in 1997 in Boerne v. Flores.)

Returning, then, to the Establishment Clause issue, it's important to note that the Court has never before approved a constitutional exemption for religion that is as broad, and as blind, as RLUIPA's.

Previously, the Court upheld an exemption to Title VII - the main federal anti-employment-discrimination law -- that permitted religious employers to discriminate on the basis of religious belief. This exemption represented the simple and sensible proposition that it would be absurd to force a religious institution to hire a non-co-religionist for a job relevant to its religious mission. It hardly covered an entire category of employment law; in contrast, RLUIPA covers all prison regulations with any impact on religious conduct.

The Court also suggested in Smith that while the Court itself would not read an exemption into the federal drug laws for religious peyote use, it would be constitutional, and even beneficial, if Congress were to create one.

But that case was very different. That was a case of a tragic constitutional conflict: A general criminal law ran up against traditional Free Exercise rights, and one had to bend. The government's judgment was that ceremonial peyote use undermined drug law enforcement, and the Court found that judgment reasonable even though it resulted in incidental burdens on religious conduct.

RLUIPA, in contrast, tries to expand far beyond traditional Free Exercise rights. There is no tragic conflict here. Prisoners already have strong rights through the Free Exercise Clause itself, which are reasonably accommodated. It is by pushing beyond those rights that RLUIPA clashes with the Establishment Clause.

Evidence Suggests Congress Is Trying to Benefit, Not Accommodate, Religion

But exactly what is the Establishment Clause problem with RLUIPA? The Court had difficulty articulating it, and no wonder.

A blatant Establishment-Clause-violating prison regulation might, for instance, require all inmates to say "Grace" before meals. Or it might stipulate that prisoners of a certain religion can never be put into solitary, even as punishment. This plainly is not that kind of law.

This law poses a trickier question: Was Congress trying to accommodate religious belief, or was it trying to bestow a benefit - a sort of reward - to those who are religious? Respect for religion is one thing; privileging religious inmates over others, however, may be an Establishment Clause violation.

Congress did not look at much evidence before it passed RLUIPA - and that, in turn, is evidence that it may have intended to benefit, not simply accommodate religion. It might have been one thing if Congress had carefully looked at substantial evidence - if it existed - that religious inmates were suffering unreasonable restrictions on their religious practices, and then acted. But when it came to RLUIPA's prison provisions, that is not what Congress did.

Congress did not identify, let alone examine, particular religious conduct that it found was not being reasonably accommodated in prisons. Nor did it consider the impact of such accommodation on the public good.

No state administrators were invited to testify - even though they had documented, and disastrous, experience with this same standard under the RFRA. (Instead, the Department of Justice -- which is charged with defending federal statutes -- proffered a memo supposedly authored by the Bureau of Prisons singing the praises of RFRA in the federal prison context.)

In short, RLUIPA was passed because its sponsors, Senators Hatch and Kennedy, said there was a crying need in the state prisons for the federal government to intervene, and that was that. As too often happens in this era, they utterly failed to ask whether instituting the strictest scrutiny and expanding the definition of "religious exercise" in the prison context might well harm the public good. Yet there were issues very much worth looking at. One is cost: Prisoner-by-prisoner accommodation of religious practices is expensive, because it is labor-intensive. That means it is also costly to taxpayers, and a generator of prison unrest: Perceived feelings of differential treatment may be triggered by, and an increase in gang activity prompted by, this kind of policy on religious accommodation requests. These are the facts of everyday prison administration, though they were given short shrift at the oral argument.

Another issue is the predictable increase in federal lawsuits: RLUIPA also will be - and has already been -- costly, in the prison context, because it invites lawsuits, which prisoners have copious time to file.

Yet another important issue is the problem of distracting prison officials when they have more than enough on their plates: They are facing an explosion of numbers and violence within their prisons' walls - as Congress blithely requires them to increase their accommodation of the huge, and increasing, variety of inmate beliefs within those walls.

The difficult question before the Court, then, is whether it will see the Establishment Clause violation in Congress' silence and decision to forego any sort of in-depth analysis of what it was actually doing when it decided to impose RLUIPA on the prisons. Or, put another way, will the Court see the intent to benefit religion, regardless of cost?

If the Court treats this novel formulation as though it must be constitutional, because it does not fit with any scheme previously examined, that will be unfortunate. It will only create an incentive for politicians who are already inclined to grant religious entities virtually any request they propose, to become (or remain) willfully blind to the costs of such measures.

We should not reward Congress for choosing to be a cipher, when the Constitution, quite to the contrary, requires it to be a filter for such sectarian pressure.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), will be published this June.

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