WASHINGTON (ABP) — The U.S. Supreme Court is weighing the question of whether a federal law designed to protect prisoners' religious freedom goes too far.
At stake is whether Congress can pass laws creating special protections for religious practices among the institutionalized. But the high court's decision, expected later this year, could extend far beyond prison walls to any laws making it easier for individuals or organizations to practice their faith.
The justices heard arguments March 21 in the case of several current and former inmates of Ohio prisons who sued the state to gain accommodations for their various non-mainstream religious practices. In this the first test of the law to be heard by the high court, several of the justices seemed skeptical about the constitutionality of the law, which was passed in 2000.
Though the cases originally were filed in the 1990s as constitutional challenges, the prisoners amended the cases after Congress passed the Religious Land Use and Institutionalized Persons Act, often referred to as RLUIPA.
One of the law's provisions requires states to accommodate religious practices by inmates in their prisons — such as providing a special diet or allowing the wearing of a particular kind of religious dress — unless prison officials can show a compelling reason why they should not grant such requests. If they do not provide the accommodations, then officials must also show that they have “burdened” the inmate's religious exercise in the least restrictive manner possible.
The 2000 law passed with support from a broad spectrum of political and religious leaders, evidenced by the fact that its two main Senate co-sponsors were conservative Orrin Hatch (R-Utah) and liberal Ted Kennedy (D-Mass.).
But in late 2003, the 6th U.S. Circuit Court of Appeals used the lawsuit — whose plaintiffs include practitioners of Satanism, the Wicca religion and an adherent of a white-supremacist form of Christianity — to overturn RLUIPA.
A three-judge panel of the appeals court said the law violates the First Amendment's establishment clause, which prevents Congress from establishing a religion or giving religion preference. By specifically accommodating religious rights, the court said, RLUIPA advances religion and prefers religion over non-religion.
“[T]he primary effect of RLUIPA is not simply to accommodate the exercise of religion by individual prisoners but to advance religion generally by giving religious prisoners rights superior to those of nonreligious prisoners,” wrote Judge Ronald Gilman in the court's opinion.
But other federal appeals courts have upheld the law's constitutionality. The prisoners appealed the decision to the Supreme Court, which accepted the case in October.
Several of the justices, in the March 21 arguments, seemed skeptical of the 6th Circuit's reasoning in overturning RLUIPA.
“Ohio pays for [prison] chaplains, but it doesn't pay for, say, psychologists to come in for agnostics,” Justice Ruth Bader Ginsburg said to Ohio Solicitor General Douglas Cole, who argued the state's case. “So aren't you then violating the establishment clause by your own theory?”
Even Justice John Paul Stevens, the member of the court generally considered most hostile to expanding religious rights, noted the state's accommodations for prisoners who adhere to Christianity and other large faiths in contrast to the denial of similar accommodations to minority-faith prisoners.
“Is there anything really at stake here beyond treating them the same as you treat mainstream religions?” Stevens asked Cole.
But Cole said Ohio doesn't have a problem with accommodating minority religions; it just opposes the broadness of the law forcing it to do so.
A “narrowly targeted accommodation” would be better, Cole said, because of “the unique incentives and burdens in the prison context.”
For example, he theorized, inmates may be tempted to feign adherence to certain religions to gain additional privileges, or for more nefarious purposes — such as using religious medallions as indicators of gang membership.
“Is it permissible for Congress to create incentives for prisoners to say, 'Yes, I'm religious' to receive these additional benefits?” he asked the justices.
Cole also contended the law creates too much entanglement between the government and religious practice, because it requires prison officials to judge what is and is not a true religion. “Congress is, in a sense, asking federal judges to sit as overseers of religious life in prisons throughout the 50 states,” he said.
But Justice Antonin Scalia shot back: “Why is it worse for judges to be overseers of religious life in prisons than it is for wardens?”
The court had difficult questions for the other side as well, though. Several justices posited hypothetical religious accommodations that prisoners may ask for or temptations inmates may face to claim religious rights in order to gain privileges.
Addressing Paul Clement, the federal government's acting solicitor general who argued in support of the prisoners' case, Justice Sandra Day O'Connor said RLUIPA “provides an unusual framework or context, and if you could find some religion that required drinking beer every day … there's a real incentive here to 'get religion.'” The courtroom responded with laughter.
Clement replied: “First of all, this is not an absolute entitlement to get a religious beer at 5 p.m. every day.”
Both Clement and Ohio attorney David Goldberger, who also argued for the prisoners, told the justices that prison officials could do away with problems caused by religious accommodations under the “compelling state interest” test. “To the extent that there's a compelling governmental interest, the prison officials can simply say, 'No,'” Goldberger said.
However, the justices repeatedly showed sensitivity to difficulties that state corrections officials might face in complying with the law.
But Clement and Goldberger countered that one of their opponents' suggestions — striking RLUIPA and instead creating laws or policies accommodating specific religions and practices — would in itself violate the establishment clause. “It's important for us to assure that religious groups of all types are accommodated,” Goldberger said.
Justice David Souter, addressing Cole, said the sort of case-specific accommodation Ohio recommends instead of RLUIPA would naturally end up favoring majority faiths. “It would also be discriminatory, wouldn't it? I think that gets you from the frying pan into the fire,” he said.
Those arguing for the inmates' case also said invalidating RLUIPA as a broad violation of the establishment clause would jeopardize numerous other state accommodations of religious exercise that have existed for centuries, such as tax exemptions for churches.
In a friend-of-the-court brief filed by the Baptist Joint Committee for Religious Liberty and the Becket Fund on behalf of a coalition of religious and civil-rights groups, attorneys argued that the 6th Circuit's ruling does just that. “[I]f allowed to stand, the rationale of the court below would potentially invalidate numerous other federal and state acts whose sole purpose and effect is to accommodate religious exercise,” they wrote.
Clement said that is one of the reasons why the federal government believes RLUIPA is constitutional and necessary. “Every state in the Union provides some accommodation to religion,” he told the justices. “At least RLUIPA has the advantage of making sure all religions are accommodated neutrally.”
The case is Cutter vs. Wilkinson, No. 03-9877. The justices will likely hand down a decision before their 2004-2005 session ends in June.