Does accommodating religious practice violate First Amendment?

Sunday, October 31, 2004

When the U.S. Supreme Court rules on two church-state issues this term, the Ten Commandments will get the headlines.

But the outcome of a second conflict — a lawsuit brought by prison inmates in Ohio — may have far greater implications for the future of religious freedom in America.

Rousing public interest in the Ohio case, Cutter v. Wilkinson, isn’t easy. Mention “prisoners’ rights” and public reaction ranges from indifference to outright hostility. This is especially true in this case because the plaintiffs belong to unconventional religions such as Asatru (a polytheistic religion) and highly unsavory groups like Satanists.

But once Americans get past the unpopular religious beliefs of the inmates, they’ll see principles at stake that guard religious freedom for everyone.

First, a little background: The Ohio prisoners sued claiming they were denied access to religious literature and the opportunity to conduct worship services. They invoked the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed by Congress in 2000.

Under RLUIPA, prison officials can’t impose a substantial burden on the religious practice of inmates unless there is a compelling reason to do so (such as security or discipline) — and there is no less-restrictive way to protect the state’s interest except by placing the burden.

The state of Ohio moved to dismiss the RLUIPA claims of the prisoners on the grounds that the law was unconstitutional. Last year, a three-judge panel of the 6th U.S. Circuit Court of Appeals agreed with the state, ruling that RLUIPA violates the establishment clause of the First Amendment because it sends a message of endorsement of religion and encourages “prisoners to become religious in order to enjoy greater rights.”

Since other appellate courts have reached the opposite conclusion, the Supreme Court has agreed to decide if RLUIPA violates church-state separation.

The decision by the 6th Circuit is wrong and dangerous. Here’s why:

RLUIPA has nothing to do with state establishment of religion, but everything to do with protecting the freedom to practice one’s faith. Some of the most ardent defenders of the establishment clause agree. “This is a reasonable law,” argues Barry Lynn of Americans United for Separation of Church and State, “that requires prisons to meet the religious needs of inmates while still respecting the security concerns of correctional institutions.”

Notice that RLUIPA doesn’t guarantee that prisoners easily win accommodations from prison officials. Only sincere religious practices that are substantially burdened are eligible for protection. And even then prisoners aren’t automatically granted their requests. Security or other concerns may be grounds for denying even the most sincere religious claims.

RLUIPA merely gives prisoners the right to make a request for accommodation — and requires the state to take it seriously. But if the Supreme Court upholds the 6th Circuit, then prison officials will be able to deny the religious freedom of prisoners on a routine basis, even when there isn’t a strong reason to do so.

That isn’t church-state separation — this is state control over religion.

Consider the broader implications of the 6th Circuit ruling: If the establishment clause is interpreted to mean that government can’t accommodate our freedom to practice religion, then religious freedom doesn’t mean very much in this country. Anthony Picarello, general counsel of the Becket Fund for Religious Liberty, puts it this way:

“The issue in Cutter is much bigger than RLUIPA – it’s about whether government can pass any law that specially accommodates religious exercise. The Court’s decision will affect what are literally thousands of accommodations for religion only … The accommodations range from the U.S. military’s allowing Jews in the armed services to wear yarmulkes, to Ohio’s own exemption of minors from underage drinking laws for religious purposes.”

Take an example from public schools. Many schools routinely exempt Jews, Muslims and Sikh students from “no head covering” policies. Of course, educators may have legitimate reasons such as gang activity for banning head coverings.

But the establishment clause shouldn’t be used to prohibit school administrators from accommodating students who must cover their heads for religious reasons. After all, a yarmulke isn’t a baseball cap. Claims of conscience can and should be treated differently by government officials.

By striking down RLUIPA, the 6th Circuit turns the First Amendment on its head. Words intended to protect religious liberty are used to deny religious liberty.

The 6th Circuit court got it wrong. The U.S. Supreme Court can now set it right.

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