Justices’ choices surprise some court-watchers

Wednesday, October 13, 2004

  • Supreme Court case tracker

    WASHINGTON — The Supreme Court set the stage yesterday for a broad review of its establishment-clause jurisprudence by agreeing to decide cases involving Ten Commandments displays and the religious rights of prison inmates.

    In doing so, the justices surprised many court-watchers by accepting for review cases they were expected to avoid or even reject. Examining which cases they did and did not accept may offer some clues as to how they might turn out. The cases are to be argued in February and decided by the end of the term next June.

    On the issue of Ten Commandments displays on public property, even though lower courts have disagreed for years over whether they are constitutional, some felt the Supreme Court would sidestep the controversy, especially in a presidential election year. After all, the justices have turned down numerous appeals on the issue ever since its cursory, unsigned 1980 decision in Stone v. Graham that struck down a Kentucky law requiring that the Ten Commandments be displayed in all public school classrooms.

    But the justices finally yielded yesterday and agreed to consider Van Orden v. Perry and McCreary County v. ACLU.

    “This is a critical opportunity for the high court to clarify one of the most confusing areas of church/state law,” said Jay Sekulow, chief counsel for the American Center for Law and Justice.

    In the Van Orden case, the Court will review a decision from the 5th U.S. Circuit Court of Appeals that said Texas could keep displaying a Ten Commandments monument on state Capitol grounds in Austin. The appeals panel found that the Ten Commandments had historic and societal value, not just religious meaning, adding that “we are not persuaded that a reasonable viewer touring the capitol and its grounds, informed of its history and its placement, would conclude that the state is endorsing the religious rather than the secular message of the Decalogue.”

    In the McCreary County case, on the other hand, the high court will scrutinize a decision by the 6th Circuit, which rejected Ten Commandments displays in Kentucky county courthouses. Even though the plaques had been supplemented with representations of other documents including the Declaration of Independence and the Magna Carta, the appeals panel found that the display was religious because the Ten Commandments was “blatantly religious.”

    Significantly, the Court did not take any action yesterday in a companion Ten Commandments case that was also before it: Harlan County v. ACLU, in which the issue was Ten Commandments displays in Kentucky public school classrooms. The Court could have been signaling that it has already said all it wants to say about the Ten Commandments issue as it relates to classrooms — and that its calculus might be different in the context of courthouses and state capitol grounds. The Supreme Court chamber itself contains a frieze depicting lawgivers through the ages, including Moses holding tablets representing the Ten Commandments, showing some of the religious codes in Hebrew. The Court may also have delayed action on the Harlan County case for other reasons; several other Ten Commandments challenges are also making their way to the Court and will be discussed in coming weeks.

    Conservative and religious groups rejoiced at the news that the high court would take up the divisive issue.

    “Finally!” said Family Research Council President Tony Perkins. “We welcome the opportunity for the high court to resolve the constitutionality of public displays of the Ten Commandments. Publicly displaying of the Ten Commandments recognizes the significant historical contribution made to America and the foundation the Ten Commandments have served to our legal system.”

    Not surprisingly, the Rev. Barry Lynn of Americans United for Separation of Church and State had a different view: “Religious symbols belong in houses of worship, not courthouses, city halls and public schools,” he said.

    Though the Ten Commandments cases are likely to garner the most attention, the prisoners'-rights case accepted by the Court yesterday may also yield a major ruling on the establishment clause.

    Cutter v. Wilkinson marks the first time the Supreme Court has considered the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 — or RLUIPA — a successor to a broader law that the Supreme Court struck down in 1997. The new law states that in the specific areas of land use — such as for church expansion — and in prisons and other institutions receiving federal funds, government agencies have to come up with strong justifications when they enact laws or regulations that burden religious exercise.

    The Cutter case was brought by several inmates who profess non-mainstream faiths, including Satanism and Wicca. They claimed that Ohio prison officials had unfairly denied them access to religious materials and ceremonies. Ohio responded by challenging the law as a violation of the establishment clause and several other aspects of the Constitution.

    A 6th Circuit panel agreed that the law violates the establishment clause because its clear purpose was to “advance religion in prisons relative to other constitutionally protected conduct.” By advancing religious rights over others, the 6th Circuit found, government was abandoning the neutrality toward religion the Constitution requires.

    Inmate John Cutter and other prisoners are asking the Court to reverse that 6th Circuit ruling and bring back the protection of religious freedom the First Amendment guarantees. Ohio, even though it won in the 6th Circuit, agreed that the Supreme Court should review the case because of widespread disagreement over the law among federal circuit courts.

    What stymied some court-watchers yesterday is why the Court agreed to consider the Cutter case, when a similar case that several parties had urged the Court to consider was not acted on.

    In Bass v. Madison, a state, not a prison inmate, was asking the Supreme Court to take the case. The 4th Circuit had upheld RLUIPA in that prison case, and the state of Virginia was asking the Supreme Court to strike it down.

    The U.S. solicitor general’s office, which supports RLUIPA, urged the Court to take the Virginia case and hold the Ohio case in abeyance. The Virginia case, the solicitor general said, could be cleanly decided on establishment-clause grounds, whereas accepting the Ohio case could open the door to a much broader review of RLUIPA. The reason? Under court procedures, the respondent — the party seeking to defend the decision being appealed — is entitled to advance “alternate grounds for affirmance.” In the Ohio case, that party would be the state of Ohio, which would be entitled to raise a range of other issues — including the commerce clause and the 10th and 11th Amendments — in urging the Supreme Court to agree with the 6th Circuit that RLUIPA is unconstitutional, even though the 6th Circuit’s ruling focused on the establishment clause.

    The justices did exactly the opposite of what the solicitor general urged, which could mean that it wants to consider RLUIPA on grounds other than the establishment clause. Ohio and other states have challenged the law as an intrusion into state sovereignty under the 10th and 11th Amendments, as an improper exercise of Congress’ power to regulate interstate commerce, and even as a violation of the spending clause, which gives Congress power to place restrictions on the money it appropriates. The prison portion of RLUIPA is framed to apply to those institutions receiving federal funds, a “hook” that has sometimes served as the only valid justification for congressional action in an area of law usually reserved for the states.

    No matter what the reason for the Court’s action, it could point toward a fuller review of justices' views about all kinds of laws that accommodate religious practices.

    “This case is about much more than RLUIPA,” said Anthony Picarello Jr., president of the Becket Fund for Religious Liberty, which has defended RLUIPA in courts across the nation. Laws protecting the confidential relationship between priests and penitents could be affected, he said, as well as a range of other laws that accommodate religion.

    Ohio State University College of Law professor David Goldberger agrees. Goldberger, who represents the inmates in the Cutter case, said that under the 6th Circuit’s theory, government-paid chaplains for the military and in prisons as well as government monitoring of the kosher slaughter of animals would be jeopardized. “There are very few accommodations that would survive.”

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