RLUIPA: Religious Land Use and
Institutionalized Persons Act
Pagan
prisoner
rights, land use cases buffet religious liberty law Nov
14, 2003
By Southern Baptist Convention Press Staff
WASHINGTON (BP)--A federal appeals court has delivered a setback
to a three-year-old law that includes provisions for prisoners'
religious rights.
The U.S. Sixth Circuit Court of Appeals, based in Cincinnati,
ruled the provision on inmates in the Religious Land Use and
Institutionalized Persons Act (RLUIPA) is unconstitutional.
A three-judge panel of the court declared that section violates
the First Amendment prohibition of government establishment of
religion.
The plaintiffs are Ohio prisoners who assert unconventional
religious beliefs. Miller and other co-plaintiffs are
followers of Asatru, a polytheistic religion that
originated with the Vikings, and includes Thor as one of its
gods. Gerhardt is an ordained minister of the Church of
Jesus Christ Christian, a white supremacist group that espouses
a belief that the races should be separated. Hampton is a Wiccan
and practicing "witch," and co-plaintiff John Cutter
is an avowed Satanist. All of them assert that Ohio
prison regulations denying them access to religious literature
and the opportunity to conduct religious services are
violations of RLUIPA and the Ohio Constitution.
Among other recent developments related to RLUIPA, a federal
judge in San Antonio, Texas, is expected to rule soon in a
land-use case involving a large Southern Baptist church. Federal
Judge Royal Ferguson heard arguments Oct. 22 on cross motions
for summary judgment in a standoff between Castle Hills First
Baptist Church and the city of Castle Hills, according to the
Becket Fund for Religious Liberty.
The city has challenged RLUIPA and the Texas Religious Freedom
Restoration Act. Lawyers from the U.S. Department of Justice and
the office of the Texas attorney general defended the
constitutionality of the laws. The suburb of San Antonio has
refused for years to permit the church to complete a portion of
a building and to establish parking lots on land it has
purchased. Ferguson said he would rule in three or four
weeks, according to the Becket Fund.
RLUIPA, signed by President Clinton in September 2000,
bans government policies that substantially burden free exercise
of religion by inmates and, in land-use cases, by a person or
institution. The government, however, can gain an exemption if
it can demonstrate it has a compelling interest and is using the
least restrictive means to advance that interest.
In the Sixth Circuit's decision on prisoner rights, Judge
Ronald Lee Gilman wrote in the panel's opinion that RLUIPA
"has the effect of impermissibly advancing religion by
giving greater protection to religious rights than to other
constitutionally protected rights."
The law not only sends a message of endorsement of religion,
Gilman wrote, but it "also has the effect of encouraging
prisoners to become religious in order to enjoy greater rights.
One effect of RLUIPA is to induce prisoners to adopt or feign
religious belief in order to receive the statute's
benefits."
The four prisoners in the case, Cutter v. Wilkinson, charged
officials of the Ohio Department of Rehabilitation and
Corrections with refusing to accommodate their religious
exercise. Prison officials argued RLUIPA permits prison gangs
to use religion in an effort to "insulate their illicit
activities from scrutiny," according to the circuit
court panel.
Supporters of the law rejected the decision and the panel's
reasoning.
The panel's reliance on the establishment clause is "an
engraved invitation to reversal," said Anthony Picarello,
Becket Fund vice president.
The panel "relied on two district court opinions, one of
which the court acknowledged has already been overruled by the
Seventh Circuit, and another, in the Fourth Circuit, that is
very likely to be overturned soon," Picarello said in a
written statement. "This same line of reasoning has been
adopted by one -- and only one -- sitting justice of the Supreme
Court and by a very small cadre of legal academics."
The Seventh and Ninth circuits have ruled RLUIPA does not
violate the establishment clause but accommodates the religious
rights of prisoners. If the full Sixth Circuit does not overrule
its panel, it would increase the potential for the Supreme Court
to rule on the law. In November, the high court declined to hear
an appeal of the Ninth Circuit's opinion.
The Sixth Circuit consists of federal courts in the states of
Tennessee, Kentucky, Ohio and Michigan.
While there have been conflicting appellate decisions on the
prisoners section of RLUIPA, the first federal court opinion
against the land-use provision in the law came in June. Federal
Judge Stephen Wilson of California ruled RLUIPA exceeded
congressional authority. Wilson rejected Elsinore Christian
Center's claim under the law against the city of Lake Elsinore,
Calif., which refused to grant a permit to the church to
purchase a downtown building.
In other recent developments related to RLUIPA:
-- A panel of the Fourth Circuit Court of Appeals heard oral
arguments Oct. 28 in an appeal of a federal court ruling
striking down the prisoners section of RLUIPA. The case is
Madison v. Ritter.
-- The Florida Department of Corrections agreed in late October
to provide a kosher diet to a Jewish prisoner, according to the
Becket Fund. Lawyers from the Becket Fund and a Miami firm filed
suit in 2002 against the Florida DOC in an effort to gain the
diet for Alan Cotton.
Congress passed RLUIPA after the Supreme Court invalidated the
more expansive Religious Freedom Restoration Act. In approving
the measure, Congress -- with the support of a diverse coalition
of organizations, including the Southern Baptist Ethics &
Religious Liberty Commission -- sought to address two of the
areas in which government most commonly inhibits religious free
exercise.
Washington, DC - The Pew Forum on Religion & Public Life today released an analysis of
the recent Supreme Court decision in Cutter v. Wilkinson. The May
31 ruling upheld the constitutionality of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), a federal law that aims to
protect the religious freedom of inmates and others held in state and
local institutions.
The new paper, which analyzes the
opinion and its possible impact on future cases, is an addendum to a
backgrounder, published in March, which provides a legal and historical
analysis of the issues in Cutter. Both are now
available on the Forum's Web site.
Press Release from the Pew Forum
June 1, 2005
Supreme Court Rules RLUIPA
Does Not Violate Establishment Clause Church-State Experts
React to Unanimous Ruling
Washington, DC - The Supreme Court
yesterday upheld the constitutionality of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), a federal law that aims to protect
the religious freedom of inmates and others held in state and local
institutions. The unanimous decision in Cutter v.
Wilkinson reverses a ruling by the Sixth Circuit Court of Appeals, which
had held that the 2000 statute unconstitutionally advances religion by
giving religious prisoners greater rights than their secular counterparts.
Religious freedom advocates hailed the
decision, saying it would have a far-reaching, positive impact. "Cutter is a win for religious exercise in
prison, but more importantly, it is a thumping victory for religion-only
accommodations nationwide," said Anthony Picarello, president and general
counsel for the Becket Fund for Religious Liberty. Furthermore,
Picarello said, the decision confirmed a recent High Court trend toward more
religious accommodation. "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 this unanimous decision removes any lingering doubt."
RLUIPA opponents said that the decision
was too open-ended and that it could lead to great disparities in the way
the government treats those who are religious and those who are not. "The
court fails to provide a theory of when it is impermissible for the state to
treat religion better than the secular," said Richard Schragger, an
associate professor at the University of Virginia School of Law. "It has
thus invited Congress to adopt legislation in areas far beyond prison
administration that will treat religiously motivated persons more favorably
than others."
On March 17, the Pew Forum on Religion &
Public Life hosted a discussion on the merits of the RLUIPA case, featuring
Professor Schragger; Nathan J. Diament, director of the Institute for Public
Affairs at the Union of Orthodox Jewish Congregations of America; and Ira
"Chip" Lupu, F. Elwood and Eleanor Davis Professor of Law at The George
Washington University Law School. The full transcript of the discussion is
available at http://pewforum.org/events/index.php?EventID=70.
In February, the Forum published an
in-depth backgrounder on the case, which provides legal and historical analysis of the issues in Cutter. An addendum to the backgrounder, analyzing Justice Ginsburg's
decision and its possible impact on future cases, will soon be available on
the Forum's Web site, www.pewforum.org.
RLUIPA allows a state or locality to limit an inmate's
religious freedom only if it can show that the restriction advances a
compelling government interest, such as maintaining prison security. The statute imposes the same standard on zoning laws and other land-use
regulations that negatively impact churches and other houses of worship, but
that section of the law was not at issue in the case.
The case began when a number of Ohio
prisoners who are members of the Satanist religion and other unconventional
sects sued the state, alleging that prison officials had not adequately
accommodated their religious needs and had therefore violated RLUIPA. Ohio
argued that because RLUIPA mandates religious accommodation, it is a "law
respecting an establishment of religion" and therefore prohibited by the
First Amendment.
Writing for the entire court, Associate
Justice Ruth Bader Ginsburg rejected Ohio's contention, arguing that the law
"confers no privileged status on any particular religious sect .." She
compared RLUIPA with other constitutionally acceptable accommodations for
religion, noting, for example, that a prison is constitutionally free to
allow prisoners to assemble for worship even if the prison forbids inmates
from holding political rallies.
"In the past, the court has said there is
a zone between the government's obligation to guarantee the free exercise of
religion and its obligation not to establish religion, and that within that
zone, it can legislate religious accommodation," said David Masci, a senior
fellow at the Pew Forum. "In Cutter, Justice Ginsberg has said that
RLUIPA fits comfortably into that zone."
The Pew Forum on Religion & Public Life
delivers timely, impartial information to national opinion leaders on issues
at the intersection of religion and public affairs; it also serves as a
neutral venue for discussions of those matters. The Forum is a project of
the Pew Research Center, a nonpartisan "fact tank" that provides information
on the issues, attitudes and trends shaping America and the world.
Press Release from the Becket Fund
RLUIPA upheld unanimously in Cutter v. Wilkinson
May 31, 2005
In a unanimous decision written by Justice Ginsburg,
the Supreme Court today upheld Section 3 of the Religious Land Use and
Institutionalized Persons Act ("RLUIPA"),
which protects the religious exercise of prisoners. Justice Thomas
concurred in a separate opinion.
The Court squarely rejected the core argument of the
court below (and of RLUIPA's detractors) that religious accommodation
laws that accommodate only religion violate the Establishment Clause of the
First Amendment, because they impermissibly favor the religious over the
secular. As the Court explained, "Were the Court of Appeals' view the
correct reading of our decisions, all manner of religious accommodations
would fall."
"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," said
Anthony Picarello, President and General Counsel for the Becket Fund. "Cutter is a win for religious exercise in prison, but more importantly, it is a
thumping victory for religion-only accommodations nationwide."
The Becket Fund drafted and filed an amicus curiae (friend of the court) brief in Cutter on behalf of over fifty religious and civil rights
organizations, ranging from People for the American Way to the American
Center for Law and Justice. Denominational groups on the brief included
Buddhists, Christians, Hindus, Jews, Muslims, Native Americans, Sikhs, and
others.
Since the nation's founding, houses of worship have been viewed as a
cornerstone - literally - of the prototypical American community. The church
steeple was considered as much a part of the town square as the schoolhouse
or corner pharmacy. But in recent years, an increasing number of
congregations that sought to build or expand their facilities have faced
repeated challenges from local officials and residents who now, for various
reasons, often do not want houses of worship in their neighborhoods.
The running legal battles in these "zoning wars" led Congress in 2000 to
pass theReligious Land Use
and Institutionalized Persons Act (RLUIPA),
which is designed in large part to protect houses of worship from
discrimination. The law states: "No government shall impose or implement a
land use regulation in a manner that treats a religious assembly or
institution on less than equal terms with a non-religious assembly or
institution."
Since then, many RLUIPA cases have been decided in court, and several
challenges have worked their way up through the judicial system.
Now, a series of recent and pending court rulings on RLUIPA, including two
U.S. Supreme Court verdicts expected by June 2005, could tilt the balance to
one side or the other and thereby reshape the geography of America's
congregational life.
In February 2005, the Supreme Court heard arguments in Kelo v. the City of
New London (Conn.), which concerns the right of a municipality to use the
power of eminent domain to evict houses of worship in order to find a
taxpaying owner.
In March 2005, in the case of Cutter v. Wilkinson, the Supreme Court heard
arguments in a related aspect of RLUIPA that deals with the rights of prisoners who claim to be members of
nontraditional religions - in this case, Satanists and Wiccans - to have
their faith practices accommodated. Although the court was dealing largely with the "institutionalized persons"
portion of the act, its ruling could undermine or bolster RLUIPA's language
on land use issues.
In addition, legal experts say a February 2005
unanimous opinion by the 7th U.S. Circuit Court of Appeals in the
Wisconsin case of Sts. Constantine and Helen Green Orthodox Church v. City of New Berlin may be the next major litmus test for RLUIPA. The
court ruled that the city substantially burdened the church's right to the
free exercise of religion by refusing to let the congregation use its own
land to build a new church. Challenges are expected.
Why it Matters
These disputes involve crucial matters of both constitutional principle and
communal practice.
The constitutional arguments concern such central issues as the separation
of church and state, the Establishment Clause and the boundaries of
government accommodation of religion.
But the cases also have a major impact on the practice of faith in America.
With more than 300,000 congregations across the country, many communities
already have experienced zoning conflicts, and almost every community could
eventually be affected by the RLUIPA decisions. The flashpoints run from
building permits for new houses of worship to the use of church bells in
landmark steeples to parking privileges on days of worship. Inner-city
congregations are affected, but the greatest impact may be in outlying areas
due to the explosive growth of suburban houses of worship, particularly
mega-churches and religious "campuses" that often resemble malls as much as
sanctuaries.
The issue also presents a notable paradox: Even as Americans increasingly
say they want society to reflect religious values, they are apparently much
less enthusiastic about hosting religious congregations in their
neighborhoods.
The current Supreme Court cases are also novel in that they have brought
together traditional foes from the left and right - such as the American
Civil Liberties Union and the American Center for Law and Justice - who have
argued on behalf of the RLUIPA.
Background
RLUIPA was
passed in 2000 as a successor to the Religious Freedom Restoration Act, the
1993 law that the Supreme Court
declared unconstitutional in a landmark 1997 decision, City of Boerne v.
Flores. The court said Congress had exceeded its federal authority by
setting mandates on a broad range of local and state policies.
With RLUIPA, Congress sought to
avoid those pitfalls by tying the law's enforcement power to Congress'
fiscal authority on prisons and by confining the religious accommodation
aspects solely to land-use issues.
Still, experts
say the act could be vulnerable on issues of federalism - that is, the
rights of states versus those of the central government - and on
church-state questions. Opponents argue that providing accommodation for
houses of worship on the basis of religion discriminates against secular
institutions.
Experts say the land use battles over houses of worship are unusual in that
they affect denominations across the spectrum. New immigrant groups seeking
to build their own temples or churches or mosques can face strong local
opposition. But established faiths that are moving from cities to suburbs
can elicit opposition to their building plans, too. Bias is not necessarily
behind it, observers say. Opposition can often come from members of a
congregation's own religion.
Quality-of-life issues often come into play, as residents say they do not
like the weekend influx of traffic to local houses of worship, or the fact
that the buildings are often unoccupied much of the rest of the week.
Some municipal officials - and many taxpaying voters - also object to the
tax exemptions that religious congregations receive, and they try to develop
congregational parcels into taxable commercial or residential property.
. Roman P.
Storzer is a Washington lawyer who has represented dozens of religious
groups on land use cases and is one of the country's most experienced
litigators in this field. Contact 202-857-9766, storzer@churchrights.com.
. The National League of Cities has argued on behalf of New London in the Kelo
case. The league opposes RLUIPA as burdensome to municipalities. Contact
Veronique Pluviose-Fenton, principal legislative counsel, 202-626-3029, Pluviose-Fenton@nlcmutual.com, or the director of media relations,
Sherry Appel, at 202-626-3003, appel@nlc.org.
. Dana Berliner is an attorney at the Washington-based Institute for
Justice, a libertarian-oriented law firm representing property owners in the
Kelo case. Contact 202-955-1300, dberliner@ij.org.
. Ken Masugi is director of the Claremont Institute's Center for Local
Government in Claremont, Calif., and is author of the paper "Faith-Based,
Not Bureaucracy Bound: How Religious Institutions Can Fight Government
Regulations." Contact 909-621-6825, kmasugi@claremont.org.
. Brad Dacus is president of the Pacific Justice Institute of Sacramento, Calif. The institute is a
religious liberty advocacy group that has litigated on behalf of churches,
such as the Independent Baptist Church of Sacramento, in land use cases.
Contact 916-857-6900, braddacus@pacificjustice.org.
. Derek Gaubatz is senior legal counsel at the Becket Fund for Religious Liberty, an interfaith law firm that
aggressively litigates cases involving federal or state religious
constitutional issues. He has devoted much of his career to supporting
religious freedom. He has authored several briefs that Becket has submitted
in cases where religious liberty, particularly RLUIPA, is challenged, and he
wrote a forthcoming law review article on the act. Contact 202-955-0095, dgaubatz@becketfund.org.
. John W. Whitehead is president and founder of the Rutherford Institute, a Christian defense organization based in
Charlottesville, Va., that filed an amicus brief in the Cutter case. Contact
through Nisha Mohammed, 434-978-3888, nisha@rutherford.org.
. Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law at the
George Washington University Law School and an expert on church-state
issues. He took part in the March 2005 Pew Forum panel. Contact
202-994-7053, iclupu@law.gwu.edu.
. Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the
Benjamin N. Cardozo School of Law, Yeshiva University. Hamilton represented
the city of Boerne, Texas, in a successful challenge to the Religious
Freedom Restoration Act, the predecessor to the RLUIPA. In amicus briefs she
represents organizations opposed to RLUIPA. Contact 212-790-0215 or
215-353-8984, or hamilton02@aol.com.
. Douglas Laycock is a law professor at the University of Texas at Austin.
Laycock is a nationally known expert on church-state issues, and he filed an
amicus brief in support of the RLUIPA on behalf of the National Association
of Evangelicals and the Union of Orthodox Jewish Congregations of America.
Contact 512-232-1341, dlaycock@mail.law.utexas.edu.
. The Rev. Richard Cizik is vice president for governmental affairs of the National Association of Evangelicals. The association has filed an
amicus brief supporting RLUIPA in the Cutter case. Contact 202-789-1011, rcizik@aol.com.
. Michael Lieberman, Washington counsel for the Anti-Defamation League, says
that this case and the recent history of many disparate groups working
together for religious liberty have made a number of unlikely allies,
allowing people to become friends across partisan lines. The ADL has a long
history of working for religious freedom. Contact 202-261-4607, mlieberman@adl.org.
. Marc D. Stern is co-director of the Commission on Law and Social Action of
the American Jewish Congress. In the late 1990s the AJC organized the
Coalition for the Free Exercise of Religion, which supported the Religious
Freedom Restoration Act, predecessor law to RLUIPA. Contact 212-879-4500, communications@ajcongress.org.
. Eliot Mincberg is legal director of People for the American Way. Mincberg
co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the
Free Exercise of Religion. Contact 202-467-4999.
. Attorney Gene Schaerr helped draft RLUIPA, testified on its behalf before
Congress and has been heavily involved in defending it. He co-chairs the
RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise
of Religion, the driving force behind the law in Congress. Contact
202-736-8141, schaerr@sidley.com.
. David Fathi is senior staff counsel at the ACLU National Prison Project,
based in Washington, D.C., which litigates to enforce the Constitution for
those in prison. He has been deeply involved in supporting RLUIPA. The ACLU
filed an amicus brief with Americans United. Elizabeth Alexander is project
director. Contact 202-393-4930, dfathi@npp-aclu.org.
June 4, 2005
NEW YORK - It's Friday on Rikers Island, time for weekly worship for nearly a quarter of the city jail's 14,000 inmates.
The men, Muslims, file quietly into a classroom of
white cinderblock that serves as their mosque. Incense burns to chase away
a sour smell from the hall ...Imam
Menelik Muhammad is delivering the day's sermon. As he stands beneath a
Quranic prayer on the wall facing Mecca, he urges the prisoners to reform.
"You will not be considered a Muslim," he admonishes, "unless people are
considered safe from your hands and your tongue."
Across the United States, tens of thousands of
Muslims are practicing their faith behind bars. Islam is most likely to
win American converts there, according to U.S. Muslim leaders, and the
religion has for decades been a regular part of prison culture. ...
Chuck Colson, founder of the evangelical Prison
Fellowship Ministries and a Nixon administration official, predicted that
"radical Islamists will use prisons, packed with angry and resentful men,"
to avenge Islam.
"Prisons continue to be fertile ground for extremists
who exploit both a prisoner's conversion to Islam while still in prison,
as well as their socio-economic status and placement in the community upon
their release," FBI director Robert Mueller said Feb. 16 to the U.S.
Senate Intelligence Committee.
Prison chaplains and others, however, say such
warnings are dangerously ignorant. ...
Chaplains describe the typical inmate convert as a
poor, black American upset about racism, not Mideast politics; someone who
turned to Islam to cope with imprisonment. When they get out, these men
are so overwhelmed by alcoholism or poverty that the crimes they are most
likely to commit are the ones that landed them in jail to begin with,
chaplains say. ...
Islam took hold in prison in the 1940s, through the
Nation of Islam. Leaders of the religious movement, which mixes Muslim
traditions with black nationalism, were imprisoned for refusing to fight
in World War II and, as a result, their teaching spread behind bars. Among
their most famous prison recruits was Malcolm X.
Another boom came two decades later,
when Muslim inmates sued prison administrators, accusing them of violating
religious freedoms. The inmates won,
and transformed jailhouse practice of all faiths.
... correctional officials say Islamic observance
actually helps them maintain prison security.
...
Despite such success stories, some lawmakers and analysts remain convinced
that radical Muslim chaplains, prison volunteers and Muslim prison
outreach organizations are escaping notice of law enforcement - and they
note that just one militant inmate could create enormous risk.
... Another issue is the background of chaplains who
have face-to-face contact with inmates.
Since Islam has no central authority
or the equivalent of a major seminary in the United States, Rogers said
most prison officials turn to local Muslim leaders to evaluate these
outreach organizations and chaplain candidates. ...
Gary Friedman, a lay chaplain and chairman of Jewish
Prisoner Services International, said irresponsible politicians and
religious leaders have trumped up the idea of a Muslim threat behind bars
to score points with voters or promote conservative Christianity.
WASHINGTON - A religious
liberties lawsuit brought by a Satan worshipper, a Wiccan witch, a white
supremacist, and an adherent of an ancient Viking religion is drawing the
impassioned support of major national religious groups as it approaches a
hearing before the Supreme Court. The case is
potentially the most important religious liberties case on this year's
docket, impacting how far a state can go to accommodate the religious
practices of its citizens and whether Congress can require states to be more
accommodating.
The case was filed by a group of Ohio inmates - Jon
Cutter, J. Lee Hampton, John Gerhardt, John Miller, and Daryl Blankenship -
who are demanding access to religious books,
medallions, and costumes, as well as the right to worship in groups while in
custody. Ohio prison officials have dismissed their religious claims as a
cover for gang activities, noting as an example that one of the plaintiffs
belongs to a church that has been linked to the Ku Klux Klan. Their lawyer
countered that they are sincere: Mr. Blankenship, who practices a
polytheistic Nordic religion called Asatru, fasted for weeks in protest of
prison rules and was hospitalized. Depending on how the court approaches the question,
the case could affect a broader range of accommodations - from excusing
college students from attendance on religious holidays to more liberal
zoning rules for houses of worship. The basis
for the lawsuit was the 2000 Religious Land Use and Institutionalized
Persons Act, a federal law that imposed broader protections for religious
practices at state institutions. Religious groups were stunned when the U.S.
Court of Appeals for the 6th Circuit struck it down last year, ruling that
the law violated the Constitution's ban on the establishment of religion.
The court held that under the Constitution, states cannot exempt religious
inmates from restrictions that are imposed on other prisoners. Such accommodations promote and encourage inmates to
adopt a religion in order to secure privileges, the court reasoned. If the
Supreme Court upholds that opinion, "It means that no state or federal
government can ever bend its rules to accommodate religious practice," said
a lawyer for the plaintiffs, Marc Stern. "The whole fabric of relations
between government and religion would be radically restructured."
The case is drawing national attention in part because
the Clinton- era law was passed by a near-unanimous vote in Congress, out of
concern that prisoners and other institutionalized people were being denied
accommodations - from kosher meals to visits by chaplains. The law requires prison officials to show not only
that they had a rational reason for withholding the religious books or
objects, but that the state had a "compelling interest" to do so. This week, the court received written briefs
supporting the law from more than 50 religious and civil rights groups,
including the National Association of Evangelicals and the Coalition for the
Free Exercise of Religion, an umbrella group that includes the Conference of
Catholic Bishops; the Anti-Defamation League; numerous national Jewish,
Muslim, Hindu, Sikh, Buddhist, Mennonite, Presbyterian, and Mormon groups;
the liberal group People for the American Way, and the conservative Liberty
Counsel.
The federal solicitor general has also asked the
Supreme Court to uphold the law. "Despite the fact that some folks will
spend more time yelling and screaming about the Ten Commandments case this
term, that is not going to affect peoples' lives day in and day out. This
case will. This is the most significant
religious liberties case before the court this year," said the director of public policy for the Union of Orthodox Jewish
Congregations, Nathan Diament. His group has also filed a brief in the case,
and it is concerned about access to kosher-slaughtered meat and the freedom
to observe holy days.
The religious groups' position is also backed by the American Civil
Liberties Union and Americans United for the Separation of Church and State,
which have filed their own briefs before the court. "We don't think it
represents a preference for religion when the government is removing an
obstacle to the free exercise of religion that the government itself
imposed," said the national legal director of the ACLU, Steven Shapiro. A
spokesman for Americans United, Joseph Conn, called the law "perfectly
reasonable."
The attorney general of New York, Eliot Spitzer, together with his
counterpart in Washington State, has also joined the cause, filing a brief
urging the court to uphold the law. "Our interest as a state is to ensure
that our citizens have the broadest protections of their rights," said a
deputy counsel in Mr. Spitzer's office, Avi Schick. New York wants the court to give states broad leeway in accommodating the
religious practices of citizens. New York provides various religious accommodations,
from allowing religious groups to discriminate in hiring, to providing
sequestered jurors with food that meets their religious diets and allowing
voters to opt out of voting in churches.
The law's congressional sponsors, Senator
Kennedy, a Democrat of Massachusetts and Roman Catholic, and Senator Hatch,
a Republican of Utah and Mormon, are also
asking the court to uphold the law along with groups representing former
prison officials and prison chaplains.
Notwithstanding the clamor, the attorney general of Ohio, Jim Petro, said he
is confident the Supreme Court will strike down the law. One member, Justice
Stevens, has in the past said that such accommodations give rights to
religious people that are not available to other inmates, and some legal
scholars share that view. "The statute exceeds Congress's power, and it
interferes with the state's ability to safely manage its prisons," Mr. Petro
told the Sun in an e-mail. However, several other courts have upheld the
law. Depending on how the justices approach the case, it could transform
church-state relations in a broad way. Ohio - which has until late next
month to file its briefs - signaled it may attack one of the most powerful
weapons Congress has to enforce federal civil rights laws in the states:
attaching conditions to the money it gives to the states.
"It would radically limit the power of Congress to say, 'If you want our
money, you have to use it in a way that is appropriate,' " said a lawyer for
the plaintiffs, David Goldberger, a professor of law at the Ohio State
University College of Law. Ohio could also attempt to argue that the federal
government has no business regulating religious accommodations, on the hotly
disputed theory that the framers of the Constitution intended the
Establishment Clause to relegate such matters to the states. If the court accepted that view, which has some
adherents among legal scholars and has received sympathy from at least one
member of the bench, Justice Thomas, then states would be free to provide as
much or as little accommodation to religious practices as they wished." It becomes a crapshoot based on what day of the week it is and what side of
the bed the official got up on," Mr. Goldberger said. In theory, states could also establish a state
religion. "You could have not just prayer in
the classroom, but services in the gym. It would be a radical change in the
law," said a professor of constitutional law at the University of Texas,
Douglas Laycock, who co-authored a brief on behalf of the Union of Orthodox
Jewish Congregations and the National Association of Evangelicals.
Although most lawyers do not expect the court to rule on all the federalism
issues, some are nervous because the court chose to hear a case with such
unusual plaintiffs when it had the option of considering similar issues in a
case brought by a Virginia prisoner asking for kosher food. "There are a lot
more kosher meal cases and 'Can I get my chaplain?' visiting privileges
cases than there are Satanists and witches," Mr. Laycock said.
RLUIPA Goes to the Supreme Court Christa Landon
After
5 years, the Supremes will finally rule on the section of the federal law
RLUIPA, which governs the religious rights of inmates. The
plaintiffs -- a Satanist, a Wiccan, an Asatru follower and a member of the
Church of Jesus Christ Christian -- are suing because prison guards refused
to give them access to religion-specific ceremonial items and books. At
issue is whether the law is constitutional or inappropriately forces prison
administrators to balance issues of faith and security. All nine justices
are hearing the appeal of adherents to non-mainstream religions. The
prisoners' attorney argued that the law could help all religions be
accommodated, but Ohio's state solicitor said it creates undue burdens on
prison officials.
Pagan
prisoner
rights, land use cases buffet religious liberty law Nov
14, 2003
By Southern Baptist Convention Press Staff
WASHINGTON (BP)--A federal appeals court has delivered a setback
to a three-year-old law that includes provisions for prisoners'
religious rights.
The U.S. Sixth Circuit Court of Appeals, based in Cincinnati,
ruled the provision on inmates in the Religious Land Use and
Institutionalized Persons Act (RLUIPA) is unconstitutional.
A three-judge panel of the court declared that section violates
the First Amendment prohibition of government establishment of
religion.
The plaintiffs are Ohio prisoners who assert unconventional
religious beliefs. Miller and other co-plaintiffs are
followers of Asatru, a polytheistic religion that
originated with the Vikings, and includes Thor as one of its
gods. Gerhardt is an ordained minister of the Church of
Jesus Christ Christian, a white supremacist group that espouses
a belief that the races should be separated. Hampton is a Wiccan
and practicing "witch," and co-plaintiff John Cutter
is an avowed Satanist. All of them assert that Ohio
prison regulations denying them access to religious literature
and the opportunity to conduct religious services are
violations of RLUIPA and the Ohio Constitution.
Among other recent developments related to RLUIPA, a federal
judge in San Antonio, Texas, is expected to rule soon in a
land-use case involving a large Southern Baptist church. Federal
Judge Royal Ferguson heard arguments Oct. 22 on cross motions
for summary judgment in a standoff between Castle Hills First
Baptist Church and the city of Castle Hills, according to the
Becket Fund for Religious Liberty.
The city has challenged RLUIPA and the Texas Religious Freedom
Restoration Act. Lawyers from the U.S. Department of Justice and
the office of the Texas attorney general defended the
constitutionality of the laws. The suburb of San Antonio has
refused for years to permit the church to complete a portion of
a building and to establish parking lots on land it has
purchased. Ferguson said he would rule in three or four
weeks, according to the Becket Fund.
RLUIPA, signed by President Clinton in September 2000,
bans government policies that substantially burden free exercise
of religion by inmates and, in land-use cases, by a person or
institution. The government, however, can gain an exemption if
it can demonstrate it has a compelling interest and is using the
least restrictive means to advance that interest.
In the Sixth Circuit's decision on prisoner rights, Judge
Ronald Lee Gilman wrote in the panel's opinion that RLUIPA
"has the effect of impermissibly advancing religion by
giving greater protection to religious rights than to other
constitutionally protected rights."
The law not only sends a message of endorsement of religion,
Gilman wrote, but it "also has the effect of encouraging
prisoners to become religious in order to enjoy greater rights. One effect of RLUIPA is to induce prisoners to adopt or feign
religious belief in order to receive the statute's
benefits."
The four prisoners in the case, Cutter v. Wilkinson, charged
officials of the Ohio Department of Rehabilitation and
Corrections with refusing to accommodate their religious
exercise. Prison officials argued RLUIPA permits prison gangs
to use religion in an effort to "insulate their illicit
activities from scrutiny," according to the circuit
court panel.
Supporters of the law rejected the decision and the panel's
reasoning.
The panel's reliance on the establishment clause is "an
engraved invitation to reversal," said Anthony Picarello,
Becket Fund vice president.
The panel "relied on two district court opinions, one of
which the court acknowledged has already been overruled by the
Seventh Circuit, and another, in the Fourth Circuit, that is
very likely to be overturned soon," Picarello said in a
written statement. "This same line of reasoning has been
adopted by one -- and only one -- sitting justice of the Supreme
Court and by a very small cadre of legal academics."
The Seventh and Ninth circuits have ruled RLUIPA does not
violate the establishment clause but accommodates the religious
rights of prisoners. If the full Sixth Circuit does not overrule
its panel, it would increase the potential for the Supreme Court
to rule on the law. In November, the high court declined to hear
an appeal of the Ninth Circuit's opinion.
The Sixth Circuit consists of federal courts in the states of
Tennessee, Kentucky, Ohio and Michigan.
While there have been conflicting appellate decisions on the
prisoners section of RLUIPA, the first federal court opinion
against the land-use provision in the law came in June. Federal
Judge Stephen Wilson of California ruled RLUIPA exceeded
congressional authority. Wilson rejected Elsinore Christian
Center's claim under the law against the city of Lake Elsinore,
Calif., which refused to grant a permit to the church to
purchase a downtown building.
In other recent developments related to RLUIPA:
-- A panel of the Fourth Circuit Court of Appeals heard oral
arguments Oct. 28 in an appeal of a federal court ruling
striking down the prisoners section of RLUIPA. The case is
Madison v. Ritter.
-- The Florida Department of Corrections agreed in late October
to provide a kosher diet to a Jewish prisoner, according to the
Becket Fund. Lawyers from the Becket Fund and a Miami firm filed
suit in 2002 against the Florida DOC in an effort to gain the
diet for Alan Cotton.
Congress passed RLUIPA after the Supreme Court invalidated the
more expansive Religious Freedom Restoration Act. In approving
the measure, Congress -- with the support of a diverse coalition
of organizations, including the Southern Baptist Ethics &
Religious Liberty Commission -- sought to address two of the
areas in which government most commonly inhibits religious free
exercise.
Press Release PBS
Religion and Ethics Report: "U.S.
Supreme Court and Prisoners' Religious Rights"
- Tim O'Brien reports on an upcoming case scheduled to
go before the U.S. Supreme Court that challenges the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA) over the issue of how far
prisons must go in accommodating inmates' religious beliefs.
Press release Pagan
prisoner
rights,
land use cases buffet religious liberty law Nov
14, 2003
By Southern Baptist Convention Press Staff
WASHINGTON (BP)--A federal appeals court has delivered a setback
to a three-year-old law that includes provisions for prisoners'
religious rights.
The U.S. Sixth Circuit Court of Appeals, based in Cincinnati,
ruled the provision on inmates in the Religious Land Use and
Institutionalized Persons Act (RLUIPA) is unconstitutional.
A three-judge panel of the court declared that section violates
the First Amendment prohibition of government establishment of
religion.
The plaintiffs are Ohio prisoners who assert unconventional
religious beliefs. Miller and other co-plaintiffs are
followers ofAsatru, a polytheistic religion that
originated with the Vikings, and includes Thor as one of its
gods.Gerhardt is an ordained minister of the Church of
Jesus Christ Christian, a white supremacist group that espouses
a belief that the races should be separated. Hampton is a Wiccan
and practicing "witch," and co-plaintiff John Cutter
is an avowed Satanist. All of them assert that Ohio
prison regulations denying them access to religious literature
and the opportunity to conduct religious services are
violations of RLUIPA and the Ohio Constitution.
Among other recent developments related to RLUIPA, a federal
judge in San Antonio, Texas, is expected to rule soon in a
land-use case involving a large Southern Baptist church. Federal
Judge Royal Ferguson heard arguments Oct. 22 on cross motions
for summary judgment in a standoff between Castle Hills First
Baptist Church and the city of Castle Hills, according to the
Becket Fund for Religious Liberty.
The city has challenged RLUIPA and the Texas Religious Freedom
Restoration Act. Lawyers from the U.S. Department of Justice and
the office of the Texas attorney general defended the
constitutionality of the laws. The suburb of San Antonio has
refused for years to permit the church to complete a portion of
a building and to establish parking lots on land it has
purchased. Ferguson said he would rule in three or four
weeks, according to the Becket Fund.
RLUIPA, signed by President Clinton in September 2000, bans government policies that substantially burden free exercise
of religion by inmates and, in land-use cases, by a person or
institution. The government, however, can gain an exemption if
it can demonstrate it has a compelling interest and is using the
least restrictive means to advance that interest.
In the Sixth Circuit's decision on prisoner rights, Judge
Ronald Lee Gilman wrote in the panel's opinion that RLUIPA
"has the effect of impermissibly advancing religion by
giving greater protection to religious rights than to other
constitutionally protected rights."
The law not only sends a message of endorsement of religion,
Gilman wrote, but it "also has the effect of encouraging
prisoners to become religious in order to enjoy greater rights.
One effect of RLUIPA is to induce prisoners to adopt or feign
religious belief in order to receive the statute's
benefits."
The four prisoners in the case, Cutter v. Wilkinson, charged
officials of the Ohio Department of Rehabilitation and
Corrections with refusing to accommodate their religious
exercise. Prison officials argued RLUIPA permits prison gangs
to use religion in an effort to "insulate their illicit
activities from scrutiny," according to the circuit
court panel.
Supporters of the law rejected the decision and the panel's
reasoning.
The panel's reliance on the establishment clause is "an
engraved invitation to reversal," said Anthony Picarello,
Becket Fund vice president.
The panel "relied on two district court opinions, one of
which the court acknowledged has already been overruled by the
Seventh Circuit, and another, in the Fourth Circuit, that is
very likely to be overturned soon," Picarello said in a
written statement. "This same line of reasoning has been
adopted by one -- and only one -- sitting justice of the Supreme
Court and by a very small cadre of legal academics."
The Seventh and Ninth circuits have ruled RLUIPA does not
violate the establishment clause but accommodates the religious
rights of prisoners. If the full Sixth Circuit does not overrule
its panel, it would increase the potential for the Supreme Court
to rule on the law. In November, the high court declined to hear
an appeal of the Ninth Circuit's opinion.
The Sixth Circuit consists of federal courts in the states of
Tennessee, Kentucky, Ohio and Michigan.
While there have been conflicting appellate decisions on the
prisoners section of RLUIPA, the first federal court opinion
against the land-use provision in the law came in June. Federal
Judge Stephen Wilson of California ruled RLUIPA exceeded
congressional authority. Wilson rejected Elsinore Christian
Center's claim under the law against the city of Lake Elsinore,
Calif., which refused to grant a permit to the church to
purchase a downtown building.
In other recent developments related to RLUIPA:
-- A panel of the Fourth Circuit Court of Appeals heard oral
arguments Oct. 28 in an appeal of a federal court ruling
striking down the prisoners section of RLUIPA. The case is
Madison v. Ritter.
-- The Florida Department of Corrections agreed in late October
to provide a kosher diet to a Jewish prisoner, according to the
Becket Fund. Lawyers from the Becket Fund and a Miami firm filed
suit in 2002 against the Florida DOC in an effort to gain the
diet for Alan Cotton.
Congress passed RLUIPA after the Supreme Court invalidated the
more expansive Religious Freedom Restoration Act. In approving
the measure, Congress -- with the support of a diverse coalition
of organizations, including the Southern Baptist Ethics &
Religious Liberty Commission -- sought to address two of the
areas in which government most commonly inhibits religious free
exercise.
In the next two weeks, the House
of Representatives will be voting on legislation that would
dramatically expand the use of the death penalty and could
result in the conviction of innocent people on broadly defined
"gang-related" charges.
The legislation could also
curtail judges' ability to use their discretion during
sentencing procedures.
Our criminal justice system needs real reform,
not further executions and unreasonable sentences. Click here to
urge your Representative to oppose this punitive and irrational
legislation.
Our death penalty system is
plagued with errors and false convictions. More than 100
innocent people have been released from death row. By expanding
the death penalty to new crimes, the proposed legislation would
increase the number of innocent individuals sentenced to death
and possibly even executed.
Instead of allowing judges the
discretion to sentence offenders, some Members of Congress are seeking to deprive judges
of the ability to impose sentences that fit the particular
offense and offender. As a result, innocent people could be
forced to accept plea bargains rather than risk the harsh
minimum sentences.
Under this proposed legislation,
a group of people as small as three people would be considered a
"gang." Offenses that were committed 10, 15 or even 20 years
apart could be used to convict people as a "gang" member.
[And
think how convenient this would be if Wicca becomes a target! cl,
ed.]
