Cutter v. Wilkinson

LII note: The U.S. Supreme Court has now decided Cutter v. Wilkinson .


Oral argument: 
March 21, 2005

The Religious Land Use and Institutionalized Persons Act contains provisions that are applicable to institutionalized persons which prohibit the government from imposing a substantial burden on prisoner's exercise of religion. The issue, in this case, is whether or not such provisions violate the Constitution's Establishment Clause, Spending Clause, or Commerce Clause.

Questions as Framed for the Court by the Parties 

Whether Congress violated the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 through § 2000cc-5, which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control.


Factual Summary
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), which, in relevant part required that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a). Congress claimed jurisdiction over prisons that receive federal funds, as well as over situations in which the "substantial burden" on the prisoner might have any effect on interstate commerce. (Congress has historically used its broad Commerce Clause power to enact far-reaching legislation.)
Plaintiffs in these three consolidated cases are Ohio prisoners affiliated with non-traditional religions, including white supremacist sects, who contend that various state corrections officials violated RLUIPA by refusing to accommodate their religious beliefs and practices. Respondents, corrections officials, challenged the constitutionality of RLUIPA, claiming the act improperly advances religion in violation of the Establishment Clause of the First Amendment, and also exceeds Congress's power under both the Constitution's Spending Clause and Commerce Clause.
The Sixth Circuit, in Cutter v. Wilkinson, 349 F.3d 257, (6th Cir. 2003), found portions of RLUIPA violated the Establishment Clause because the statute failed the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon court said that to comply with the Establishment Clause, a statute: (i) "must have a secular legislative purpose," (ii) "its principal or primary effect must be one that neither advances nor inhibits religion," and (iii) it must not create "excessive government entanglement with religion." Id. at 612-13. The Sixth Circuit did not rule on the Spending Clause and Commerce Clause issues.
The Sixth Circuit conducted a straightforward application of the Lemon test and found that RLUIPA's actual purpose was not to accommodate religion by removing obstacles to religious exercise, but rather to advance religion relative to other constitutional rights. Cutter, 349 F.3d at 264. The Sixth Circuit distinguished Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), in which the Supreme Court upheld Congress' decision to exempt religious organizations from the prohibition against religious discrimination in employment. The Sixth Circuit noted that the exemption in Amos "was arguably necessary to avoid a violation of the Establishment Clause" without which courts would have been forced "to interfere with the internal workings of religious organizations." Cutter 349 F.3d at 263.
The Sixth Circuit objected most strongly to RLUIPA in its application of the second prong of the Lemon test, finding that the effect of RLUIPA is to clearly advance religion.See id. at 265. The Court first held that RLUIPA improperly advances religious interests without advancing secular interests. By forcing courts to use "strict scrutiny" in reviewing claims under RLUIPA, the burden of proof shifts from the prisoners to prison officials; instead of focusing on the inmate's ability to find other ways to exercise his religion, courts must look at the officials' efforts to accommodate the prisoner. See id. The Sixth Circuit said the scheme might not violate the Establishment Clause had Congress actually had evidence that religious rights were at risk in prisons. In fact, the Court said Congress had no such evidence. See id.The Sixth Circuit also ruled that in addition to endorsing religion, RLUIPA had the effect of encouraging prisoners "to become religious in order to enjoy greater rights." Id. at 266.
The Supreme Court's decision will delineate the boundaries of Congress' power to properly "accommodate" religion under the Establishment Clause. The Sixth Circuit ruled that RLUIPA violates the Establishment Clause because it grants religious prisoners rights superior to those enjoyed by nonreligious prisoners. The Court must decide whether the government must simultaneously accommodate all other constitutional rights when accommodating the right to religious exercise. If the Court decides that RLUIPA violates the Establishment Clause, it may limit the ability of government to grant routine accommodations for religious exercise. Petitioners, for example, argue that that if they lose the case, Congress will no longer be constitutionally permitted to provide a statutory exemption from military service for religious conscientious objectors without providing an exemption for secular, political objectors. See Brief for Petitioner at 17.


The Establishment Clause
Rather than exclusively push the Lemon test in their brief to the Supreme Court, the Ohio corrections officials framed the alleged constitutional violation in policy arguments and the notion that the prison context deserves special consideration from the Court. Primarily, their argument was that prisoners who disguise their demands with religion will get special benefits, at the expense of prison security. For example, since RLUIPA requires prison officials to adopt "the least restrictive means" of imposing on prisoners' religious exercise, prison officials say they have seen an upsurge in "religious" demands. See Brief for Respondents at 4. Such demands limit prison officials' ability to restrict the activities of religious sects that preach violence. The prison officials point to a variety of sects affiliated with white supremacist groups, and fear that RLUIPA may force prisons to allow these groups' literature and to permit "religious services" for groups that are little more than prison gangs. SeeResp't Brief at 5-6.
The prison officials acknowledge that not all religious "accommodations" violate the Establishment Clause, but they maintain that accommodations may not "slide over into favoritism." Id. at 13, citing Texas Monthly, Inc. v. Bullock, 89 U.S. 1, 40 (1989) (Scalia, J., dissenting). The prison officials claim the extra religious rights would breed suspicions of favoritism among the inmates, destabilizing the prison environment and violating the effects prong of the Lemon test. See id. at 15. The prison officials maintain that even a religious accommodation acceptable in society at large would not function in prison, where "any religion-based difference in treatment carries far greater weight." Id. at 16. The prison officials distinguish acceptable religious accommodations as those that simply remove an obligation created by Congress, thus restoring the status quo, and leaving the religious organization in the same position as if Congress had never entered the field. The prison officials say Amos precisely fits this definition; there the law in question banned religious discrimination in employment. By choosing not to apply the law to religious organizations, Congress left them in the same position they occupied before the law. See id. at 22-23.
The prison officials' also raise a novel argument that rests in principles of federalism. Essentially, they argue that Congress lacks the authority to dictate how states accommodate religion. Id. at 25. The states must comply with all requirements of the First Amendment, including the Establishment Clause, but to the extent that they choose their own constitutionally appropriate method, Congress has no power to prescribe a different method. See id. Here, the Ohio prison officials insist they're operating "in the permissible zone," where they, and not Congress choose policy. Id. at 28.
By contrast, the prisoners maintain that Congress has created an acceptable religious accommodation, along the lines of the one created in Amos. The prisoners claim that RLUIPA does nothing more than remove burdens placed on inmates' religious expression, without doing anything to favor religion or grant any benefits. The prisoners cite the Amos court, which wrote that simply lifting a burden on religious exercise did not mean Congress sponsored or favored religion because "[t]here is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." SeePet'r Brief at 14, quoting Amos, 483 U.S. at 334 (internal quotations omitted). Petitioners also respond to the first prong of the Lemon test by pointing to Amos for its assertion that "it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Id. at 15, quoting Amos, 483 U.S. at 335. As for the effects prong of the Lemon test, the prisoners say RLUIPA's effects are "indistinguishable" from those found permissible under Amos, as Congress simply tried to remove an impediment to religion. Id. at 16. The prisoners argue that RLUIPA's accommodation of religious rights without accommodating all other constitutional rights is immaterial, because the Supreme Court has never held that the government must accommodate all other rights in order to accommodate a religious right. See id. at 8-10. The prisoners point to a Fourth Circuit decision affirming their argument which overturned a District Court opinion relied on by the Sixth Circuit for the proposition that the different constitutional rights ought to be treated equally. See id. at 22, citing Madison v. Riter, 355 F.3d 310 (4th Cir. 2003).
The prisoners meet the officials' federalism argument with the blunt response that "[n]o federalist reading of the Establishment Clause has ever been adopted by a majority of this Court." Id. at 34. Furthermore, the prisoners contend that to read the Establishment Clause in such a way "would require the overruling of all this Court's Establishment Clause decisions addressing state practices affecting religions." Id.
The prisoners' policy argument holds that RLUIPA's general accommodation of religious rights avoids the problem of allowing the states to adopt sectarian preferences. They accuse the states of preferring mainstream religions, and maintain RLUIPA forces the states to adopt a policy of evenhanded neutrality that will ensure fair treatment for members of minority religions. See id. at 24. Also, the prisoners argue that to declare the accommodation in RLUIPA unconstitutional would create a "slippery slope" problem, which they claim would force courts to overturn all sorts of familiar and accepted religious accommodations. For example, the prisoners contend it would no longer be constitutional for Congress to exempt religious conscientious objectors or ordained ministers from military service, and they even argue that military chaplains could no longer be paid. See id. at 17.
At a high level, the case seems to represent a collision between the values of Lemon, with its stark limitations on laws that have the effect of advancing religion, and Amos, in which the Court permits Congress to accommodate the needs of religions. The case may turn on the degree of specificity with which the Court views the case. For example, if it takes the perspective of society at large, the Court may well see the case through the lens of Amos, with its message that Congress may permissibly remove impediments to religious exercise, thus granting "accommodations" to religion. Under this view, the Court may also take a dim view of the idea of government officials telling private citizens how they may and may not worship. If the Court accepts the prison officials' plea to consider the case from the narrow perspective of a prison, however, the law would very much seem to effectively advance religion in exactly the manner proscribed by Lemon. Individual prisoners could well see improvements in their limited rights based upon how or whether they worship. In resolving this conflict, the prison officials' point of view, if adopted, might allow the justices to limit their holding to a case dealing only with the rights of prisoners. A decision on the limits of Congress' power to pass religious legislation for society at large could, however, yield a much more sweeping precedent.
The Spending and Commerce Clauses.
Because the Sixth Circuit found that RLUIPA violates the Establishment Clause, it did not consider Petitioner's alternative grounds that RLUIPA violates both the Commerce Clause and the Spending Clause. The Southern District Court of Ohio, in Gerhardt v. Lazaroff, 221 F. Supp. 2d 827 (S.D. Oh. 2001), however, held that RLUIPA was a proper exercise of congressional spending power and of congress' power to regulate interstate commerce.
The District Court discussed four limitations on Congress' powers under the Spending Clause. First, power is permissible only when it is in pursuit of "the. . . general Welfare of the United States." South Dakota v. Dole, 483 U.S. 203, 207 (1987). Second, any conditions on a federal grant must be clearly presented to the States for their acceptance or rejection along with the grant itself. Id. Third, the conditions on the federal grant must be related to the federal interest involved in the national program. New York v. United States, 505 U.S. 144, 167 (1992). Finally, Congress' exercise of its spending power must not violate any other constitutional provisions. Dole, 483 U.S. at 208.
Addressing the first point, the District Court quickly dismissed Petitioner's contentions that RLUIPA does not further the general welfare of the United States. The court noted that what constitutes the "general welfare" is left to Congress' discretion "unless the choice is clearly wrong [or] a display of arbitrary power [rather than] an exercise of judgment." Helvering v. Davis, 301 U.S. 619 (1937). The court found that because the burden for this limitation is so low, RLUIPA is sufficiently related to the general welfare of the United States to survive a constitutional challenge on that ground.
On the second limitation, the District Court identified two requirements of funding that are required to meet this limitation. The condition imposed on receipt of the federal funds must be unambiguous, and such conditions may not be imposed on the states after the funds have been received. Petitioners claimed that the language of RLUIPA is not sufficiently clear to advise the states that compliance with RLUIPA is a condition of receiving federal funds and that even if it is clear enough, the compliance requirements are too vague for the states to understand their obligations. The District Court applied a common sense reading of RLUIPA, noting that language such as "No government shall impose. . ." is sufficiently clear and is traditionally associated with obligations and rights. In response to Petitioner's second claim, the District Court looked at such requirements such as "reasonable efforts" are not so vague that states cannot reasonably appreciate obligations they are undertaking by continuing to accept public money. Furthermore, as petitioner and the United States concede that RLUIPA was not intended to apply to federal funds disbursed prior to its effective date, the District Court found no retroactivity issues with RLUIPA.
On the third limitation, defendants argued that there was not a substantial enough connection between federal funding for prisons and the free exercise of religion by prisoners to support RLUIPA as a valid exercise of the spending power. After the District Court assumed for arguments sake that a direct relationship was required between the programs receiving federal funds and the conditions attached to those funds, it agreed with the United States that there were many direct connections between the funds made available to the state prisons and the restrictions imposed by RLUIPA. One such pervasive relationship the District Court mentioned was the exercise of religion by prisoners and the presumed rehabilitative benefits derived from such exercise.
On the fourth limitation, the court concluded, for reasons mentioned above, that RLUIPA did not violate the Establishment Clause. In addition, the District Court found that RLUIPA violated neither the Tenth Amendment, as it was a constitutional exercise of the Spending Clause powers, nor the Eleventh Amendment.
The District Court classified Petitioner's Commerce Clause argument under Congress' ability to regulate activities which have a "substantial effect" on interstate commerce. See United States v. Lopez, 514 U.S. 549, 558 (1995), Perez v. United States, 402 U.S. 146, 150 (1971). The District Court laid out the three prerequisites of a substantial effect analysis, one of which must be satisfied. The prerequisite that the parties' briefs focused on was the third, that the statute must place the burden on the party seeking enforcement to allege and demonstrate the substantial relationship. The District Court concluded that its finding that RLUIPA was constitutional under the Spending Clause did not require a complete Commerce Clause analysis.