This battle over RLUIPA involves three cases consolidated in the Sixth Circuit for the purpose of deciding a challenge by the Ohio Department of Rehabilitation and Corrections ("ODRC") to the statute's constitutionality (the other cases are Gerhardt v. Lazaroff and Miller v. Wilkinson).
The plaintiffs are Ohio prisoners who assert unconventional religious beliefs. Miller and other co-plaintiffs are followers of Asatru, a polytheistic religion that originated with the Vikings, and includes Thor as one of its gods. Gerhardt is an ordained minister of the Church of Jesus Christ Christian, which espouses a belief that the races should be separated. Hampton is a Wiccan and practicing "witch," and co-plaintiff John Cutter is an avowed Satanist. All of them assert that Ohio prison regulations denying them access to religious literature and the opportunity to conduct religious services are violations of RLUIPA and the Ohio Constitution.
On October 24, 2000, the State of Ohio moved to dismiss the RLUIPA claims on grounds that enactment of the statute exceeded Congress's Spending Clause and Commerce Clause authority, that it violates the Establishment Clause and the Tenth and Eleventh Amendments, and that it is unconstitutionally vague.
The U.S. Department of Justice intervened in the case to defend the constitutionality of RLUIPA, and the American Jewish Congress filed an amicus curiae brief (PDF format, 68K) with the court, also defending the statute's constitutionality.
On August 27, 2001, U.S. Magistrate Judge Terence P. Kemp issued a Report and Recommendation finding that RLUIPA is a "constitutional exercise of Congress' Spending Power," and that neither the Tenth nor Eleventh Amendments provide Ohio with immunity from the law's provisions.
In a lengthy, carefully reasoned report, Judge Kemp noted that as of the date of passage of RLUIPA (September 22, 2000), ODRC had received 22 different federal grants, and that it had then applied for and received additional grant funds afterward. "In short, no retroactivity issue is raised by the facts of this case." He found that "the language used in the Act closely parallels other federal statutes conditioning federal funding that have long been deemed to satisfy the notice requirement" set forth by the Supreme Court in South Dakota v. Dole. "The Court holds that RLUIPA adequately expresses Congress' intent to condition further payment of federal funds upon the states' compliance with RLUIPA." He also rejected Ohio's argument that the "strict scrutiny" standard imposed by the statute was too vague. "This standard has been used in Constitutional jurisprudence for at least the last 100 years," and "has been used to analyze many constitutional complaints of prisoners."
Judge Kemp noted that after the case had been briefed in his court, "the United States District Court for the Eastern District of California, in Mayweathers v. Terhune, rejected the same constitutional challenges raised by the defendants here. This Court is in full agreement with the result reached in Mayweathers."
U.S. District Court Judge Edmund A. Sargus, Jr. adopted the Report and Recommendation on February 25, 2002, saying "the Court finds each of defendants' objections to be without merit." Ohio, Judge Sargus wrote, "has, among other things, the recourse simply to choose not to accept federal funding." And he held that RLUIPA does not violate the Establishment Clause. "The Court adopts the Report and Recommendation's conclusion that the government's decision to lift burdens on the free exercise of religion is not tantamount to government endorsement of either a particular religion or religion in general."
ODRC filed notice of appeal on March 1. Briefing before the Sixth Circuit was completed in September 2002, and oral arguments took place on September 10, 2003.
On November 7, 2003, the Sixth Circuit panel (Circuit Judges Moore and Gilman, and District Judge Tarnow, sitting by designation) issued a decision [registration required] in which it found RLUIPA to violate the Establishment Clause because of "its message of endorsement" and because, in the court's view, it "has the effect of encouraging prisoners to become religious in order to enjoy greater rights."
The panel noted that the Seventh and Ninth Circuits "reach the opposite conclusion," but went on to declare that it favored instead the rulings in Kilaab Al Ghashiyah v. Wisconsin Dep't of Corrections (which the panel acknowledged has been overruled) and Madison v. Riter. The Sixth Circuit decision quotes at length from both Madison and Ghashiyah, and approvingly cites a law review article by Marci Hamilton.
The panel's conclusion, that "by enacting RLUIPA, Congress itself has advanced religion by giving religious prisoners a preferred status in the prison community," is sharply at odds with the conclusions of both the Seventh and Ninth Circuits:
"[RLUIPA] does not violate the Establishment Clause just because it seeks to lift burdens on religious worship in institutions without affording corresponding protection to secular activities or to non-religious prisoners. RLUIPA merely accommodates and protects the free exercise of religion, which the Constitution allows."
It is also sharply at odds with the Fourth Circuit's decision in Madison v. Riter, issued on December 8, 2003. In that case, the Fourth Circuit overturned one of the two decisions the Sixth Circuit had relied upon just a month earlier. "Because we find that Congress can accommodate religion in section 3 of RLUIPA without violating the Establishment Clause, we reverse," the Fourth Circuit panel wrote. "To hold otherwise and find an Establishment Clause violation would severely undermine the ability of our society to accommodate the most basic rights of conscience and belief in neutral yet constructive ways."
On December 19, 2003 The Becket Fund filed an amicus curiae brief (PDF format, 60K) with the Sixth Circuit, in support of the plaintiffs-appellees' petition for rehearing, or rehearing en banc. The brief was also filed on behalf of the Aleph Institute, the American Civil Liberties Union, the American Jewish Committee, the American Jewish Congress, the Baptist Joint Committee on Public Affairs and the Union of Orthodox Jewish Congregations of America. "Despite their vast religious and political diversity, the amici share a common interest in assuring that the Religious Land Use and Institutionalized Persons Act of 2000 is upheld as constitutional," the brief notes.
The Becket Fund brief argues that the Sixth Circuit panel's "proposed rule, enunciated for the very first time in the two overruled district court opinions cited by the panel, not only contradicts Supreme Court precedent governing accommodations of religious exercise, but would wreak havoc on a broad range of religious accommodations in Ohio and throughout the nation."
Moreover, "Under the panel's rule, the Establishment Clause would run amok, invalidating wholesale the legion acts of the political branches—legislative and executive, federal, state and local—whose sole purpose and effect is to accommodate religious exercise. For starters, the rule adopted by the panel would invalidate the special protections afforded to religious exercise (and only religious exercise) by Ohio's Constitution." The panel's anti-accommodation rule "would similarly run roughshod over a whole host of Ohio statutory laws that accommodate religious exercise by affirmatively lifting burdens on religious exercise, but not secular constitutional rights." An attachment (Appendix A) to the amicus brief lists nearly two dozen Ohio laws that fall into this category.
(Cutter v. Wilkinson, U.S. District Court of Appeals for the Southern District of Ohio, 98-CV-382; Miller v. Wilkinson, U.S. District Court for the Southern District of Ohio, 98-CV-275; Gerhardt v. Lazaroff, U.S. District Court for the Southern District of Ohio, 98-CV-517) (Cutter v. Wilkinson, Sixth U.S. Circuit Court of Appeals, 02-3270; Miller v. Wilkinson, Sixth U.S. Circuit Court of Appeals, 02-3299; Gerhardt v. Lazaroff, Sixth U.S. Circuit Court of Appeals, 02-3301)
News Articles:
Judges Strike Down Law on Religion in Prison (New York Times, by Adam Liptak, November 8, 2003) (New York Times requires registration before accessing web-posted material)
Ohio prisons handed court victory (Toledo Blade, by Jim Provance, November 8, 2003)