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Cutter v. Wilkinson

In Cutter v. Wilkinson, No. 03-9877, the U.S. Court of Appeals for the Sixth Circuit held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA) facially violated the Establishment Clause. The Supreme Court today, in an opinion written by Justice Ginsburg, unanimously rejected the Sixth Circuit’s sweeping and fairly radical holding.

A very thorough, very helpful background memo on RLUIPA and on the Cutter case can be found at this Pew Forum site. In brief, RLUIPA section 3 requires state prison systems (and other state institutions) to alleviate substantial burdens that they impose on the religious exercise of persons they house, unless they can show that denial of the religious accommodation is the “least restrictive means” of advancing a “compelling govenrmental interest.” RLUIPA section 3 applies whenever the state agency receives federal funds, and/or when the burden on religious exercise (or its alleviation) affects interstate commerce.

The section 3 substantive test is, in effect, the test of Sherbert v. Verner, which nominally governed Free Exercise doctrine until the Court largely abandoned it in its 1990 decision in Employment Division v. Smith. Congress had previously codified that same test in the Religious Freedom Restoration Act, which governs federal prisons. (The Court held in City of Boerne v. Flores that Congress lacks the power under section 5 of the Fourteenth Amendment to apply RFRA to the states.)

The court of appeals had held that it was impermissible for Congress to accommodate religious exercise if it did not provide equivalent accommodation to all other constututional rights — that is, that a legislature could not single out religious exercise for special accommodation. This argument appeared to be inconsistent with the Court’s 1987 decision in Corporation of Presiding Bishop v. Amos, and the Court today easily rejected it. As the Court noted, the Sixth Circuit’s rationale would invalidate virtually all religious accommodations — including those that Ohio itself regularly makes. In a variation on the “test” articulated in Amos, the Court in Cutter held that an accommodation is permissible if it alleviates “exceptional government-created burdens on private religious exercise,” so long as the accommodation is “measured so that it does not override other significant interests.” There is no such “override” of other significant interests under RLUIPA, the Court explained, because under the statute itself, security concerns are a “compelling interest”; deference is due to institutional officials’ expertise in this area; and (the Court strongly implied) therefore a prison would generally satisfy RLUIPA’s nominally strict scrutiny where there is a genuine security-related reason to deny the religious exemption: “We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.”

The Court did not address several important subsidiary questions involving its articulated accommodation test, such as:

— When is a government-imposed burden on religious exercise “exceptional”? The adjective is a curious development: In Amos, the Court approved alleviation of “significant” government-imposed burdens. [Attention prospective law-student note-writers: What is the practical and doctrinal import of the Court’s change from “significant” to “exceptional”?]

— What about alleviation of privately imposed burdens, such as when the legislature requires private employers to accommodate their employees’ religious exercise? The Court doesn’t say; but it emphasizes that RLUIPA satisfies the Constitution because the burdens it alleviates are government-imposed.

— If an accommodation is constitutionally problematic when it “overrides other significant interests” — a consideration also strongly emphasized in City of Thornton v. Caldor — why didn’t the accommodation in Amos itelf raise serious questions, where the statutory exemption permitted an employer to discharge a loyal employee who had been on the job for 16 years?

The Court also declined to address several other important questions. For instance, the Court avoided opining about whether RFRA is constitutional as applied to the federal government (see footnote 2), and about the constitutionality of section 2 of RLUIPA, which deals with local land-use regulation (see footnote 3). More importantly, the Court avoided any decision on Ohio’s alternative grounds for invalidating section 3. Because the court of appeals’ rationale was so sweeping and (thus) so vulnerable, Ohio and its amici had placed a great deal of weight on several other arguments — in particular, (i) that Congress lacked the power to enact RLUIPA under the Commerce and Spending Clauses; and (ii) that the Establishment Clause has a “federalism”-based component that prevents Congress from interfering with a state’s choices about how to accommodate religion. The Court remanded the case to the court of appeals for consideration of defendants’ Commerce, Spending and “federalism-based” Establishment Clause arguments (see footnote 7). [Disclosure: I filed a brief on behalf of Senators Hatch and Kennedy urging the Court not to reach the Spending and Commerce questions, or alternatively to uphold Congress’s enumerated powers to enact RLUIPA.]

Interestingly, however, Justice Thomas — the Justice who presumably would be most predisposed to accepting Ohio’s “federalism-based” Establishment Clause argument (in light of his concurrence in Newdow, which suggested that the Court should reconsider the Establishment Clause’s application to the States) — wrote at length in a separate concurrence to reject that argument in no uncertain terms (even though he would hold that Congress could not preclude a State from establishing a religion).

Justice Thomas also hints at three separate places in his concurrence (footnote 2 and pages 5 and 7) that RLUIPA “may well” exceed Congress’s Commerce and Spending powers. The principal authorities he cites in support of that suggestion, however, are his lone concurrences in Lopez and Sabri, in which he proposed far-reaching reconsideration of the Court’s Commerce and Spending doctrines. (Justice Thomas also cites quotations from Madison and Iredell suggesting that some of the Framers “may have believed that the National Government had no authority to legislate concerning religion, because no enumerated power gave it that authority.”)

Moreover, in the final sentence of his concurrence in Cutter, Justice Thomas states that “[t]he States’ voluntary acceptance of Congress’ condition [by accepting federal funds] undercuts Ohio’s [Spending Clause] argument that Congress is encroaching on its turf.”