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 Harvard Publishes Litigation Director’s Article on RLUIPA Prisoner ProvisionsThe Harvard Journal of Law and Public Policy has published a law review article by Becket Fund Director of Litigation Derek L. Gaubatz entitled "RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner Provisions." The article is divided into four parts: - Part I provides a historical overview of the protection of the religious exercise rights of prisoners in the United States and a description of RLUIPA’s legislative history.
- Part II examines RLUIPA’s provisions in detail and lays out what a prisoner must prove to invoke RLUIPA’s jurisdictional provision, what remedies a prisoner is entitled to under RLUIPA, what a prisoner must prove to establish a substantial burden on religious exercise, and what type of religious exercise is protected under RLUIPA. Particular attention is paid to how RLUIPA’s definition of “religious exercise” seeks to rectify judicial interpretations of RFRA that led to prisoners losing the overwhelming majority of claims brought under RFRA. This section also examines what prison officials must demonstrate to establish a compelling government interest and the least restrictive means of advancing that interest and how a faithful application of RLUIPA’s strict scrutiny test is likely to affect the most commonly asserted reasons for prison officials’ decisions to burden religious exercise.
- Part III provides an empirical examination of how RLUIPA prisoner claims have fared in the first four years of the Act’s existence. This section concludes that the record thus far indicates that the Act has enabled prisoners to enjoy moderately more success in pursuing religious liberty claims than prisoners did under RFRA. The empirical record also reveals that the flood of claims feared by RLUIPA’s critics has not materialized.
- Finally, in light of the Supreme Court’s pending decision in Cutter v. Wilkinson to resolve the circuit split over RLUIPA’s constitutionality, Part IV examines and rejects the arguments of RLUIPA’s critics that the Act is an unconstitutional exercise of congressional power.
The article is published at 28 Harv. J.L. & Pub. Pol’y 501. More information on The Becket Fund’s work defending the religious exercise rights of prisoners can be found here, and The Becket Fund’s brief in Cutter v. Wilkinson defending RLUIPA’s constitutionality on behalf of a coalition of over 50 religious and civil rights groups can be found here.Resources & Documents
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