Argument in Cutter v. Wilkinson

By Kevin Russell
on Mar 21, 2005 at 5:01 pm

The Court heard oral argument this morning in Cutter v. Wilkinson, No. 03-9877, a case involving a constitutional challenge to the Religious Land Use and Institutionalized Persons Act (RLUIPA). The issues in the case are thoroughly discussed in this prior post. In short, RLUIPA requires state prison officials to provide accommodations to inmates’ religious practices unless they have a compelling state interest in refusing the request and cannot satisfy that interest through a less restrictive means. The Court took the case to review a decision by the Sixth Circuit that held that by requiring accommodations for religious, but not for secular, reasons, RLUIPA violates the Establishment Clause of the First Amendment.

Establishment Clause

Defending the statute, Acting Solicitor General Paul Clement was not particularly challenged when he repeatedly asserted that the Constitution permits Congress and the States to provide special accommodations for religion without automatically violating the Establishment Clause, even when the First Amendment would not itself require the accommodation. But he was challenged whether this particular statute goes too far by imposing strict scrutiny on prison officials’ denial of requests for accommodations, particularly in light of the Court’s prior conclusion in Employment Div. v. Smith, that the Free Exercise Clause itself only subjects such denials to rational basis scrutiny. When Congress attempted to overturn that decision by enacting the Religious Freedom Restoration Act (RFRA) pursuant to its authority to enforce the Fourteenth Amendment, the Court struck it down as an illicit attempt to change the meaning of the Constitution, a point the Chief Justice made as soon as Clement began his argument.

RLUIPA is different than RFRA, Clement argued, because the statute is more targeted (applying only to land use regulation and institutionalized persons, whereas RFRA applied to all government conduct) and because it only applies to States that chose to accept federal funds for their prisons (whereas RFRA applied to all states whether they consented to it or not).

Even with these differences, Justice O’Connor asked, doesn’t RLUIPA provide inmates with a powerful incentive to “get religion” in order to obtain special benefits that are only available in prison for religious prisoners entitled to RLUIPA accommodations? She gave the example of a religion that requires drinking beer every day at 5 p.m., or the use of marijuana. Clement responded that the incentives created by RLUIPA are much more limited than many have suggested, since the statute permits States to deny accommodations in furtherance of such compelling interests as prison security and administration (so, no prison happy hours, no religion-prescribed marijuana use). Indeed, Clement asserted, the types of accommodation most likely to be actually required under the statute would have limited appeal to inmates. Clement gave the example of kosher meals which, in prison, are often cold meal alternatives to the hot food offered to other inmates.

On the same theme, Justice Ginsburg wondered whether RLUIPA could jeopardize prison safety by requiring accommodations – such as religious medallions or exemption from hair length requirements – that could be used by inmates to signal membership in a gang. Again, Clement insisted that any such security concerns would be protected by the Act’s exemption for compelling state interests.

The Chief Justice questioned, however, whether requiring any accommodations at all for religious, but not secular, requests violates the Establishment Clause. Clement noted that the Court had previously allowed Congress to exempt certain religious employers from a federal statute that prohibits religious discrimination in employment, even though the statute did not offer secular employers a comparable exemption. Such attempts to accommodate religion, Clement argued, are a constitutional virtue, not a violation of the Establishment Clause.

Plaintiff’s counsel, David Goldberger, argued next and began by asserting that when the case goes to trial, they will show that the State actually provides some religious accommodations, but only to members of majority religions. (His clients, on the other hand, include inmates practicing Wicca, Satanism and white supremacist religions). He noted that even though the State argues that RLUIPA’s strict scrutiny standard imposes intolerable burdens on the administration of state prisons, Ohio’s constitution itself imposes strict scrutiny for religious accommodation claims in all state programs.

Justice Ginsburg asked whether the prison was required to accommodate a request for racially segregated cell assignments by someone adhering to a racist religion. Goldberger replied that RLUIPA does not require a State to engage in conduct that would otherwise violate the constitution.

When Douglas Cole, Ohio’s Solicitor General, got up to argue, he was immediately pressed hard by Justice Souter to identify the line between constitutional accommodation of religion and unconstitutional endorsement. Souter noted that providing an accommodation necessarily confers a benefit on religion, but that this cannot be automatically equated with endorsement. Cole agreed that not every accommodation violates the Establishment Clause, but asserted that RLUIPA crosses the line. He noted that in the prison context, inmates are subject to extensive regulation and, if the only way to get out of them is to claim a religious entitlement, there will be a constitutionally impermissible pressure toward religious conversion.

But was this not also true under the Supreme Court’s own cases that imposed strict scrutiny on denials of requests for religious accommodation pre-Smith, Justice O’Connor asked. The implication was that under the State’s argument, the Supreme Court’s own Free Exercise jurisprudence pre-Smith created Establishment Clause violations. Responding to this dilemma, Cole asserted that rational basis scrutiny was applied to prisoner claims even prior to Smith. Justice O’Connor asked skeptically whether this was true even of Free Exercise claims. Cole said that it was.

Souter then asked what sort of accommodation requirements would be acceptable in the State’s view. Cole hypothesized that a statute that targeted accommodations at mealtime might be constitutional, but that RLUIPA’s across-the-board application to all prison activities created an unconstitutional endorsement of religion. Do you want a separate statute for meals, another one for religious medallions and so on, Souter asked. Doesn’t that approach risk unconstitutional discrimination between religions, Souter suggested, providing a right to accommodation for religions that have food requirements, but not for others that have different accommodation needs? Adopting that approach, Souter suggested, would be jumping out of the fry pan and into the fire.

Justice Breyer moved on to pragmatic concerns that seemed behind a number of the Justices’ questions. Why, he asked, were the State’s interests not adequately protected when the Act permits denials based on compelling state interests which, everyone seemed to agree, includes most of the things prison officials care about. Cole responded that there is still a substantial problem because the Act requires that the denials be narrowly tailored to those compelling interests and subjects state officials’ determinations about tailoring to second-guessing by the courts. This argument was met with hostility from an unexpected corner, with Justice Scalia abruptly dismissing the State’s fear of judicial oversight. Why is it worse for judges rather than wardens to oversee requests for religious accommodations by inmates, he asked. So long as the judges defer to the wardens’ security determinations, Scalia said he saw no reason to think wardens are better suited to accommodate religious requests. Cole responded that there was no such requirement of deference in the statute.

Returning to his initial question, just before Cole finished, Justice Souter asked skeptically whether it was possible to administer the State’s apparent test that would not prohibit all religious accommodations, but only those requirements that go too far.

On rebuttal, Clement and Scalia debated whether RLUIPA requires more than the Court’s pre-Smith cases by not requiring that the accommodation be compelled or central to the inmate’s religion. Clement also pointed out that even though the State complained that RLUIPA applies broadly to all kinds of accommodation requests in prisons, that breadth is one of its virtues, precluding selective protection of only some types of requests that arise for adherents to majority religions, but providing little benefit to members of non-traditional religions. In this way, Justice Kennedy noted, RLUIPA is no broader than the many state Constitutions that apply strict scrutiny to requests for accommodations in all government services.

In the end, Justices O’Connor, Scalia, Breyer, Souter and Ginsburg seemed clearly inclined to reverse the Sixth Circuit’s Establishment Clause holding. Justice Kennedy was fairly quiet and did not give any clear indication of his view, but seemed more likely to reverse than to affirm. The Chief Justice and Justice Stevens seemed more sympathetic to the State. As usual, Justice Thomas did not ask any questions.

Spending And Commerce Clause

As an alternative grounds for affirming the Sixth Circuit, the State had also challenged whether RLUIPA was a proper exercise of any of Congress’s enumerated powers. In particular, the State argued that the statute is not proper legislation under the Spending Clause because its requirements were insufficiently related to the purposes of the federal funds Ohio receives for its prisons, and that the statute was not valid legislation to regulate interstate commerce. The Court, however, showed very little interest in reaching those questions. The Chief Justice twice pointed out that the Spending Clause issue was not within the Question Presented by the cert. petition and was not decided by the Sixth Circuit. Justice Ginsburg suggested that even if the issues were in the case, there would be no need to decide the Commerce Clause question since every state prison system receives federal funds. No Justice asked any substantive questions on either issue, although at one point Justice Scalia scoffed at the State’s assertion that it was being subject to intolerable burdens, pointing out that if Ohio did not want to bear RLUIPA’s burdens, it could simply turn down the federal funds.

International Law

The argument had its lighter moments. At one point, Justice Scalia interrupted respondent’s counsel to ask whether Satanism is a non-majoritarian religion. It is unclear why Justice Scalia cared, or whether he was just making a joke, but the question led to a bizarre colloquy in which Goldberger noted that the Royal Navy had promised to abide by a Satanist’s burial wishes. That one reference to international law was one reference too many for Justice Scalia. “Our Royal Navy?” he snarled, much to the amusement of the as-always easily amused Supreme Court audience.