Supreme Court hears arguments on inmate religious rights

March 22, 2005

(ABP) — The U.S. Supreme Court is weighing the question of whether a federal law designed to protect prisoners' religious freedom goes too far.

At stake is whether Congress can pass laws creating special protections for religious practices for institutionalized persons. But the high court's decision, expected later this year, could extend far beyond prison walls to any laws making it easier for individuals or organizations to practice their faith.

The justices heard arguments March 21 in the case of several current and former inmates of Ohio prisons who sued the state to gain accommodations for their various non-mainstream religious practices. In this first test of the law to be heard by the high court, several of the justices seemed skeptical about the constitutionality of the law, which was passed in 2000.

Though the cases originally were filed in the 1990s as constitutional challenges to restrictions on the prisoners' free exercise rights, the prisoners amended the cases after Congress passed the Religious Land Use and Institutionalized Persons Act, often referred to as "RLUIPA."

One of the law's provisions requires states to accommodate religious practices by inmates in their prisons — such as providing a special diet or allowing the wearing of a particular kind of religious dress — unless prison officials can show a compelling reason why they should not grant such requests. If they do not provide the accommodations, then officials must also show that they have "burdened" the inmate's religious exercise in the least restrictive manner possible.

The 2000 law passed with support from a broad spectrum of political and religious leaders. Its two main Senate co-sponsors were Orrin Hatch, R-Utah, and Ted Kennedy, D-Mass.

But in late 2003, the 6th U.S. Circuit Court of Appeals used the lawsuit — whose plaintiffs include practitioners of Satanism, the Wicca religion and an adherent of a white-supremacist form of Christianity — to overturn RLUIPA.

A three-judge panel of the appeals court said the law violates the First Amendment's Establishment Clause. By specifically accommodating religious rights, the court said, RLUIPA advances religion and prefers religion over non-religion.

"[T]he primary effect of RLUIPA is not simply to accommodate the exercise of religion by individual prisoners but to advance religion generally by giving religious prisoners rights superior to those of nonreligious prisoners," wrote Judge Ronald Gilman in the court's opinion.

But other federal appeals courts have upheld the law's constitutionality. The prisoners appealed the decision to the Supreme Court, which accepted the case in October.

Ohio Solicitor General Douglas Cole, who argued the state's case, contended the law creates too much entanglement between the government and religious practice, because it requires prison officials to judge what is and is not a true religion. "Congress is, in a sense, asking federal judges to sit as overseers of religious life in prisons throughout the 50 states," he said.

But Justice Antonin Scalia shot back: "Why is it worse for judges to be overseers of religious life in prisons than it is for wardens?"

The court had difficult questions for the other side as well. Several justices posited hypothetical religious accommodations that prisoners may ask for or temptations inmates may face to claim religious rights in order to gain privileges.

Addressing Paul Clement, the federal government"s acting solicitor general who argued in support of the prisoners' case, Justice Sandra Day O'Connor said RLUIPA "provides an unusual framework or context, and if you could find some religion that required drinking beer every day ... there's a real incentive here to 'get religion.'" The courtroom responded with laughter.

Clement replied: "First of all, this is not an absolute entitlement to get a religious beer at 5 p.m. every day."

Both Clement and Ohio attorney David Goldberger, who also argued for the prisoners, told the justices that prison officials could do away with problems caused by religious accommodations under the "compelling state interest" test. "To the extent that there's a compelling governmental interest, the prison officials can simply say, 'No,'" Goldberger said.

Those arguing for the inmates' case also said invalidating RLUIPA as a broad violation of the Establishment Clause would jeopardize numerous other state accommodations of religious exercise that have existed for centuries, such as tax exemptions for churches.

In a friend-of-the-court brief filed by the Baptist Joint Committee and the Becket Fund on behalf of a coalition of religious and civil rights groups, attorneys argued that the 6th Circuit's ruling does just that. "[I]f allowed to stand, the rationale of the court below would potentially invalidate numerous other federal and state acts whose sole purpose and effect is to accommodate religious exercise," they wrote.

Clement said that is one of the reasons why the federal government believes RLUIPA is constitutional and necessary. "Every state in the Union provides some accommodation to religion," he told the justices. "At least RLUIPA has the advantage of making sure all religions are accommodated neutrally."

The case is Cutter vs. Wilkinson, No. 03-9877. The justices will likely hand down a decision before their 2004-2005 session ends in June.