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The Supreme Court's New Ruling on the Religious Land Use and Institutionalized Persons Act's Prison Provisions: Deferring Key Constitutional Questions

Thursday, Jun. 02, 2005

Recently, in Cutter v. Wilkinson, the Supreme Court unanimously upheld the prison provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) - against a challenge arguing that these provisions violate the Establishment Clause.

It would be a mistake, however, to count this as an outright loss for prisons when it comes to RLUIPA. Even as the Court upheld these provisions, it also interpreted them, in the context of legislative history, to require significant deference to prison authorities' judgment.

Moreover, RLUIPA, as a whole, is not out of the woods yet. Its land use provisions - which I described in an earlier column - were not at issue here, nor did the Court presage how it might rule on their constitutionality.

Also, a key constitutional question about the congressional power to enact the provisions of RLUIPA has yet to be decided. In addition to considering the Establishment Clause challenge, the Court could have considered the question whether Congress had the proper constitutional authority to enact RLUIPA in the first place. On this question, however, it sent the case back to the appeals court - here, the U.S. Court of Appeals for the Sixth Circuit.

RLUIPA's Formula: Applying "Strict" Scrutiny to Even Neutral, General Regulations

By its terms, RLUIPA imposes the long-standing constitutional test known as "strict scrutiny" to prison regulations (and those of other government-run institutions). To survive "strict scrutiny," prison officials must carry their burden of proving that their regulations exist to serve a compelling interest.

Traditionally, this has been a very hard burden to carry: Strict scrutiny has often been called "strict in practice, fatal in fact." Put another way, as the Supreme Court explained in its 2004 free exercise decision in Locke v. Davey, which upheld the exclusion of students training for the ministry from a state-funded scholarship program, strict scrutiny stands for the proposition that the law is "presumptively unconstitutional."

Remarkably, in RLUIPA, Congress required courts to apply "strict scrutiny" even to neutral, generally applicable regulations - regulations that do not even mention religion. In other words, RLUIPA directs courts to treat neutral regulations as inherently suspect.

The reason this is remarkable is that under Court doctrine, strict scrutiny has normally been triggered only when there is a strong reason to suspect that the government has violated the Constitution. With few exceptions, in the free exercise context, strict scrutiny was normally reserved to laws that target religious entities for negative treatment, as in the Church of Lukumi Babalu Aye decision, which held that the City of Hialeah could not target the Santerians' sacrificial disposal of animals.

To apply strict scrutiny to neutral, generally applicable laws is a new formulation.

The Problem with Applying Strict Scrutiny in the Prison Context

Applying strict scrutiny, as it is normally understood, to neutral regulations puts prisons in an untenable position. They are dealing with a myriad of difficult issues, including security, gang violence, and tight budgets, and courts need to defer to their judgment, which is informed by up-close knowledge.

As the Court has recognized in prison Free Exercise cases such as Turner v. Safley and O'Lone v. Estate of Shabazz, prison authorities deserve leeway in figuring out what interests are important enough that they must overcome inmate Free Exercise claims. There, it has employed standards of review lower than strict scrutiny - opting for either "rational basis" review, or intermediate-level scrutiny.

It was unwise for Congress, with RLUIPA, to increase the standard to "strict scrutiny" review after the Court had wisely decided lower standards were proper.

The Court's Opinion: Strict Scrutiny Should Incorporate Deference to Prisons

As noted above, the Court upheld RLUIPA's prison provisions against Establishment Clause attack. That means the "strict scrutiny" standard, at least in name, still applies in the prison context.

But the Court also did something interesting: It held that this high standard should be interpreted by courts to encompass deference to prison officials' judgments.

Justice Ginsburg, writing for the Court, repeatedly emphasized this point - citing legislative history that instructed courts to apply RLUIPA with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources."

In a footnote, Justice Ginsburg re-emphasized this point, writing for the Court that "It bears repetition . . . that prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this arena." And she ended her opinion for the Court by noting that "Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility should be free to resist the imposition."

The Court's message, then, is clear: RLUIPA's prison provisions are to be applied in an "appropriately balanced way," not in a way that presumes the prison's policies are illegal or unconstitutional.

RLUIPA, then, does not require the sort of strict scrutiny that has been mandated in affirmative action cases like Richmond v. Croson or the content-based speech cases like Boos v. Barry. In the prison/religious freedom context, strict scrutiny is not to be "strict in theory, fatal in fact." Far from it: Strict scrutiny, here, will be strict in theory, deferential in fact. In all likelihood, in practice, it will be something like the intermediate scrutiny counseled in Turner v. Safley.

The Court's Decision to Reject Traditional Strict Scrutiny Here Is Unsurprising

Court-watchers should have expected a result something like this. Strict scrutiny of neutral, generally applicable laws is simply indefensible and unworkable: Why should - and how can - laws that do not expressly discriminate or bear any other earmark of governmental unconstitutional conduct, be deemed presumptively unconstitutional? Such a presumption only could come from some noxious aspect of the law's wording or structure; yet by definition general, neutral laws lack any such aspect.

No wonder then that (contrary to some of my academic colleagues' claims, and those of many religious lobbyists) the Supreme Court has never been devoted to strict scrutiny in the free exercise context. Very few free exercise cases have invoked it, and even fewer apply it to the advantage of the believer.

Sherbert v. Verner held that a Sabbatarian could not be denied unemployment compensation for failing to work on Saturdays when others could be excused from work on secular grounds. There, religious reasons were being treated less favorably than secular reasons, making the government's denial suspect, as the Court pointed out in Locke.

The one case where the Court applied strict scrutiny to a neutral, generally applicable law with fervor is Wisconsin v. Yoder. But that decision -- which held that Wisconsin's compulsory education law could be avoided by the Amish because their interest in an insular community outweighed any interest the state might have in an educated citizenry -- is an aberrant mistake. Indeed, it's probably the worst Free Exercise opinion the Court has ever issued.

Cutter Shows the Court's Greater Willingness to Allow Broad Accommodation

In sum, it should have been expected that the Court would not permit RLUIPA, if it were to be upheld, to stand for the proposition that prison regulations are presumptively illegal. But one aspect of Cutter is genuinely new - and, perhaps, a bit surprising. Cutter seems to evidence a more expansive willingness, on the part of the Court, to permit religious accommodation well beyond practice-specific accommodation.

In Employment Division v. Smith, the Court blessed practice-specific accommodations when it suggested that although the Free Exercise Clause did not mandate an exemption from the narcotics laws for the use of peyote in religious ceremonies, legislatures could constitutionally create an express exception for such use. Similarly, in Corporation of Presiding Bishop v. Amos, the Court upheld an express exception to Title VII - the main federal anti-discrimination statute - in which Congress allowed religious entities to hire co-religionists (even for non-religious positions) without fear of legal liability.

Still, Amos hardly prepared the way for RLUIPA or Cutter. The Title VII exemption at issue applied only in the context of employment discrimination claims based on alleged religious discrimination: It did not create an exception to gender or race discrimination claims, let alone to all employment law claims. Instead, it simply mandated that courts dismiss a certain, narrow category of lawsuit: A religious discrimination lawsuit, where the dispute arises out of the institution's insistence on employing one who shares the institution's beliefs.

By comparison, RLUIPA is much broader. It covers two entire arenas of law: institutional regulations and land use regulations - and that means it covers a lot of territory, many issues, and will be controlling law when it comes to the resolution of a lot of currently unknowable future problems. The supposed "three years" of hearings on the statute in fact included only a handful of individuals testifying on behalf of religious groups, and no state prison administrators. Thus, Congress passed this law having virtually no real knowledge about its impact, or its consistency with the public good, in the vast majority of its applications. It is, in a word, blind accommodation.

But the Court did not take as its basis for comparison the narrow Title VII exception in Amos. Instead, it opted to compare RLUIPA with its much broader predecessor, the Religious Freedom Restoration Act (RFRA). And, as I pointed out in a recent column on the Cutter oral argument, in comparison to RFRA, RLUIPA looks quite nicely tailored.

RFRA imposed strict scrutiny on every single law in the country, as applied to religious institutions and persons. No wonder, then, that the Court struck it down as unconstitutional (at least as it applied to the states) in Boerne v. Flores. RFRA is such a problematic statute, it should not be the benchmark for constitutional accommodation.

Thus, just as Boerne suggested that immensely broad religious exemptions must fail, Cutter suggests that religious exemptions can succeed even if they are broader than any we've seen in the past. This is new territory, which unfortunately gives legislatures little incentive to investigate how their exemptions will in fact affect the public good.

The Court Has Yet to Rule on RLUIPA's Land Use Provisions

As I noted above, the Court has yet to rule on the constitutionality of RLUIPA's land use provisions. And the issue, there, is quite different.

As Justice Ginsburg noted, prisons have complete control over worship and religious observance, putting prisoners in a potentially vulnerable position. On this score, the opinion finds the prison provisions consistent with the Establishment Clause, because they operate in an arena where "the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise." RLUIPA "alleviates exceptional government-created burdens on private religious exercise." The Court's willingness, in Cutter, to allow Congress leeway to protect observance with a higher standard of scrutiny (yet still a deferential one) is thus understandable. The prison provisions go to the very core of religious exercise - worship.

But on the land use side, there is no reason to think religious institutions - often well-funded, and with a strong supporting constituency inside and outside the community -- are especially vulnerable. Moreover, what is protected by RLUIPA is not their religious observance; it is merely their ability to legally enforce their preferences regarding location and buildings.

A church's ability to preach its own doctrine is sacrosanct, but its ability to expand its parking lot in a residential neighborhood, despite contrary zoning provisions, certainly is not. And giving churches - but not, say, secular day care centers or battered women's shelters - parking lot expansion privileges, looks a lot like the establishment of religion.

For these reasons, the Court may well find the Establishment Clause arguments for striking down RLUIPA's land use provisions are far more compelling than the Establishment Clause arguments for striking down its prison counterpart.

And remember, the issue of the very basis of Congress's power to enact RLUIPA has been deferred. Justice Thomas, in a concurrence, makes it clear that there are serious reasons to doubt whether Congress has the power to enact RLUIPA. The federal government is a government of enumerated powers, and RLUIPA's proponents must explain how this law - a law governing state and local governments, for the sake of religious entities -- is a valid exercise of federal power under the Spending or Commerce Clauses, or Section 5 of the Fourteenth Amendment.

On this issue, we'll hear from the Sixth Circuit in the prison context before we hear from the Supreme Court. On the land use side, this question is an especially weighty one: Federalism concerns are at their height when a federal law interferes with what is the most inherently state and local issue: local land use.

So stay tuned, because there is much left to be decided with respect to RLUIPA.

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 First Amendment and other constitutional issues 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 available in June.

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