Odd alliance defends RLUIPA before high court

Tuesday, March 22, 2005

WASHINGTON — With an array of supporters like the Bush administration, the American Civil Liberties Union, Americans United for Separation of Church and State and the Becket Fund for Religious Liberty rooting for it, the Religious Land Use and Institutionalized Persons Act has to be constitutional, right?

Maybe, but maybe not, to judge from oral arguments in the case Cutter v. Wilkinson before the Supreme Court yesterday. While RLUIPA seems on surer footing than its predecessor, the Religious Freedom Restoration Act or RFRA, which was struck down in 1997, the law passed by Congress in 2000 still has skeptics on the Supreme Court.

The law requires officials at prisons receiving federal funds not to impose a “substantial burden” on inmates’ religious exercises, unless the limitations serve a “compelling governmental interest” and are the least-restrictive way of furthering that interest.

When several inmates invoked the law to require Ohio prison officials to allow a range of non-mainstream religious practices, the state said no and claimed the law is an unconstitutional establishment of religion that violates the First Amendment. A district court upheld the law, but the 6th U.S. Circuit Court of Appeals reversed and struck it down.

That set the stage for an odd pairing of Acting Solicitor General Paul Clement and Ohio State University law professor David Goldberger, who represents the inmates, arguing together in favor of the law.

Clement defended RLUIPA as “more targeted” than RFRA, and based on the spending clause of the Constitution — the kind of “string” attached to federal spending that the Court has approved in the past.

Still, Justice Sandra Day O’Connor worried aloud that the law imposes “quite a burden on states” to deal with sham religious requests like daily beer or marijuana — or more legitimate religious claims as well. “There’s a real incentive here to ‘get religion,’” O’Connor said. “Is that a problem?”

Clement replied that states already accommodate mainstream religions. RLUIPA, he said, merely extends that accommodation to minority religions. “If there is any incentive, it is for religion over irreligion.”

Chief Justice William Rehnquist, on the bench for the first time in five months, asked Clement, “Haven’t we said you can’t favor religion over irreligion?”

Clement fell back on the spending-clause argument, asserting that, “If the federal government is going to provide over $1 million to Ohio for prison meals, then certainly, the federal government can ensure that kosher meals are among those.”

Goldberger also ran into tough questioning. When he said his clients were seeking the same treatment that mainstream religious adherents were given, he was asked if the state had to accommodate Satanism. Goldberger mentioned that the Royal Navy — presumably Britain’s — had recently made some accommodation for a sailor who was a Satanist.

Justice Antonin Scalia, a staunch opponent of invoking foreign practices in the high court’s work, asked incredulously, “Our royal navy?”

Ohio state solicitor Douglas Cole seemed to run into fewer hostile questions when he argued against the law, asserting that especially in a prison environment, RLUIPA slips quickly toward endorsement of religion. “Where there are so many deprivations of liberty, the one way to get out from under them is religion,” Cole said. He added that there had been “an explosion of claims” by prisoners in Ohio, and under RLUIPA, they must all be accommodated if there is no compelling reason not to.

Justice David Souter countered that, even under RLUIPA, “nothing is automatic,” and said claims could be screened to eliminate those that are “gaming the system.”

Still, Cole said, the law turns judges into “overseers of religious life” in prison and creates for prisoners “an impermissible incentive to practice religion.”

A decision in the case is expected sometime before the Court adjourns for the summer in late June.

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