Comments on: Cutter v. Wilkinson

By: Crescat Sententia

Crescat Sententia — Fri, 03 Jun 2005 15:45:30 +0000

What is found there

Some mock my exhaustive pursuit of Jacob Levy sightings across the blogosphere, but for all that I hate having to slog through comments for this stuff, sometimes one can run across surprising finds. E.g., Religion Professor Extraordinaire Douglas Layco…

By: Crescat Sententia

Crescat Sententia — Fri, 03 Jun 2005 15:45:14 +0000

What is found there

By: JDG

JDG — Tue, 31 May 2005 19:14:16 +0000

How does Justice Stevens reconcile his concurrence in Boerne (RFRA violates the establishment clause) with the outcome in Cutter (RLUIPA does not violate the establishment clause)? One would think that if RFRA is a “law respecting an establishment of religion” than its evil step-child RLUIPA is too. They seem the same to me no matter what establishment clause “test” you use.

By: Marty Lederman

Marty Lederman — Tue, 31 May 2005 18:24:38 +0000

I agree with Doug Laycock: The Court did not give any hint of doubt about Amos itself. The only point I was trying to make is that the Court has not yet satisfacitorily worked out the role of “burdens on third parties” as a factor in accommodation doctrine. On the one hand, the obviously significant burden borne by Mr. Mayton (and other employees) was not fatal to the exemption in Amos. (Nor was the burden on the non-released schoolchildren — who had to sit twiddling their thumbs in a classroom while most of their classmates attended religious school — sufficient to cause the Court to invalidate the release-time program in Zorach more than 50 years ago.) On the other hand, the Court has been quite clear in cases such as Caldor and Cutter (and Hardison and Welsh and Seeger) that harms to third parties can have a significant impact on how the Court views the constitutionality of a religious accommodation.

By: Mark Tushnet

Mark Tushnet — Tue, 31 May 2005 18:09:58 +0000

In Cutter, Justice Ginsburg writes, “Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions.” She then cites the remarks of Senator Hatch in the Congressional Record, and quotes a Joint
Statement of Senators Hatch and Kennedy, itself quoting
a Senate Report. If, as it seems to me, this passage — apparently interpreting the “compelling interest” standard in the statutory — plays an important part in upholding the statute
against a facial challenge, it also strikes me as notable that the
opinion was unanimous (joined by Justices Scalia and Thomas
without comment on the use of what seems to me legislative
history as a predicate for an interpretation of the statute that
plays a role in upholding the statute’s constitutionality). Have the critics of the use of legislative history (on or off the Court)
articulated a basis for using legislative history in this way while
abjuring it in other contexts?

By: Douglas Laycock

Douglas Laycock — Tue, 31 May 2005 18:06:04 +0000

It is possible that the Court’s reference to “exceptional government-created burdens on private religious exercise” indicates a new test, but I think it far more likely that the word “exceptional” is simply descriptive of the facts in this case.
In the paragraph that follows the quoted phrase, the Court says that “Section 3 covers state-run institutions . . . in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise.” “[I]nstitutionalized persons . . . are . . . dependent on the government’s permission and accommodation for exercise of their religion.” Amos did not involve such “exceptional” facts, but there is no hint of any doubt about Amos.

By: Ex Post

Ex Post — Tue, 31 May 2005 17:53:04 +0000

Cutter, Accommodation, and Separation of Powers

The Cutter opinion that came down today, particularly it being unanimous, is important for a couple reasons. It clarifies the area between what is protected by the Free Exercise Clause, and what is barred by the Establishment Clause. And secondly, it…