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Supreme Court weighs religious liberty law’s impact on prisons

WASHINGTON (BP)–The Bush administration defended a federal law protecting the religious freedom of prisoners before the Supreme Court March 21, arguing the measure does not violate the ban on government establishment of religion.

Oral arguments at the high court pitted the federal government against the state of Ohio in determining whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) is constitutional. Lawyers for the Bush administration and inmates in Ohio prisons urged the high court to overturn a lower court decision that ruled the law was an establishment of religion. The lawyer representing Ohio, meanwhile, argued for the justices to uphold the ruling, contending RLUIPA goes beyond the First Amendment’s protection of religious expression and promotes religion.

The justices are expected to issue a decision before they adjourn in late June or early July.

RLUIPA, which was signed into law by President Clinton in 2000, prohibits government policies that substantially burden free exercise of religion by inmates and, in land-use cases, by a person or institution. The government, however, can gain an exemption from the law if it can show it has a compelling interest and is using the least restrictive means to further that interest.

The case, which is on appeal from the Sixth Circuit Court of Appeals in Cincinnati, Ohio, involves some Ohio prisoners who hold unconventional beliefs. They assert that state corrections rules denying them access to religious material and the opportunity to perform religious services violate RLUIPA.

Douglas Cole, Ohio’s state solicitor, told the justices in the hour-long arguments RLUIPA violates the Constitution “because of the unique incentives and burdens” it creates in prisons. Those burdens include safety threats and additional administrative tasks for wardens, Cole said.

RLUIPA forces the state to choose “between safety and accommodation” of religion, he said. Under the law, religion is favored over non-religion, Cole said. “The request [for religious accommodation} itself is treated different and better just because it is religion,” he said.

In adopting RLUIPA, Congress “has magnified the right” to religious exercise over that found in the Constitution’s First Amendment, Cole told the justices.

Paul Clement, acting solicitor general at the Department of Justice, told the court “there has been an exaggeration of how far beyond” the free exercise of religion clause RLUIPA has gone. While RLUIPA may be a “more exacting standard” than the First Amendment, Clement said, he denied it “creates an establishment clause” problem.

Associate Justice Sandra Day O’Connor told Clement in RLUIPA there seems to be a “real incentive here to get religion.” The government appears to be willing to provide such incentives, which can pose “quite a burden on the state,” she said.

Every state accommodates religion, Clement said, adding all religions are treated equally under RLUIPA.

Afterward, David Goldberger, a Columbus, Ohio, lawyer who represented the inmates in the case, denied safety issues were a problem with RLUIPA.

“I think there’s no question that the experience so far in the federal system, which has had this kind of statute in effect for 10 years, is that they haven’t had to accommodate religious activities that are a genuine threat to security,” Goldberger said, “and I don’t expect that to happen anywhere in the country.”

Cole told reporters the states “have experienced significant operational difficulties” because of RLUIPA.

The Sixth Circuit Court of Appeals is the only one of five federal appeals courts to invalidate RLUIPA. The Fourth, Seventh, Ninth and 11th circuits have upheld the prisoner provision in the law.

The Southern Baptist Ethics & Religious Liberty Commission signed onto a friend-of-the-court brief in support of RLUIPA.

The ERLC and nearly 60 other members of the Coalition for the Free Exercise of Religion contend in the brief the law is an appropriate accommodation of religious free exercise and does not violate the establishment clause. According to the brief, the law passes the high court’s three-part Lemon test: (1) It has a secular purpose; (2) it does not promote religion primarily, and (3) it does not establish excessive entanglement with religion. The Lemon test has guided the high court’s decision-making in establishment clause cases since it was outlined in the 1971 Lemon v. Kurtzman opinion.

RLUIPA “does not invest religious prisoners with absolute rights,” says the brief, which was filed by the Becket Fund for Religious Liberty. “Instead, it provides a means to account for the interests of others who might be impacted by a particular religious practice.”

Among the nearly 60 organizations signing onto the brief as part of the coalition were the Baptist Joint Committee for Religious Liberty, American Center for Law and Justice, Anti-Defamation League, National Council of Churches, Christian Legal Society, People for the American Way, Liberty Counsel, Church of Jesus Christ of Latter-day Saints, Prison Fellowship and U.S. Conference of Catholic Bishops.

The brief says the coalition does not take a position on the specific facts in the case, which consists of inmates with beliefs that are repugnant to Christians and others, but is defending the constitutionality of RLUIPA. John Cutter, the lead petitioner in the appeal, is an avowed Satanist, while other petitioners include an ordained minister of a white supremacist group and a follower of Asatru, a polytheistic religion that originated with the Vikings.

“Our clients have some controversial beliefs, and that’s always in the background, but this is a facial attack on the statute, and this statute applies to Orthodox Jews seeking kosher meals; it applies to Moslems seeking prayer oil,” Goldberger said. “So it’s not just groups that many of us have never heard of before.”

Congress adopted RLUIPA after the more expansive Religious Freedom Restoration Act was invalidated by the Supreme Court in 1997. In passing RLUIPA, Congress sought to address two of the areas -– land use and correctional institutions — in which government most commonly inhibits religious free exercise.

The case is Cutter v. Wilkinson.

The court heard the case on the first day Chief Justice William Rehnquist has been present for oral arguments since he was diagnosed with thyroid cancer in October. Rehnquist participated in the questioning of the lawyers, although his voice was hoarse and quieter than normal.