Well, the circuit split issue isn't quite as clear
as I had suggested. In its petition, Virginia expressly rejects
the EC theory on which it had won in the district court, and that the Sixth
Circuit invoked in Cutter (namely, that a government can accommodate
religious exercise only if it provides comparable accommodations for the
exercise of other constitutional rights). And there's good reason
that Virginia rejects that theory -- namely, that it wishes to
preserve its own ability to grant religious
accommodations, including accommdations of the very sort involved in this
case. It so happens that Virginia does provide kosher meals
to some prisoners for religious reasons. It denied Madison such an
accommodation, however, because (i) it determined that he "had adequate
alternatives" from other menus (e.g., the "no pork" and vegetarian menus; (ii)
it doubted the sincerity of his religious beliefs; and (iii) "it
considered Madison's history of disciplinary problems." (Just as an
aside: The first of the prison's reasons is troubling under the Religion
Clauses themselves (wholly apart from RLUIPA), because it suggests that the
prison thinks it knows better than Madison himself what his religion ("Hebrew
Israelites") requires, and that it requires less accommodation than, e.g.,
Judaism. The second rationale (lack of sincerity) would, if
demonstrated, mean that Virginia would prevail under RLUIPA.
Likewise, the third justification (in essence, "we deny religious accommodations
to those prisoners who have had disciplinary problems") is probably a
ground on which Virginia should prevail under RLUIPA itself, assuming the
Religion Clauses permit the state to impose a "good behavior" condition on the
exercise of a religious accommodation.)
Virginia does not wish to limit its own ability to
provide kosher meals to prisoners of its choosing. Accordingly, Virginia
relies on two alternative EC theories: (i) that the EC -- in addition to
imposing substantive constraints on both federal and state governments --
prevents Congress from interfering with a state's choices
about how to accommoodate religion; and (ii) that, per Thornton, a
government cannot act to alleviate a burden on religious exercise not of its
own making (except, as under title VII, when the required accommodation is
minimally intrusive on the entity that imposed the religious burden).
These are both intriguing theories, but they have not been passed upon by any
court (have they?), and more importantly, as Virginia concedes, they are not the
subject of a circuit split. Virginia argues, however, that if the Court
grants cert., the Court itself can consider the EC theory on which there is
a circuit split -- even though all the parties to the case (Madison,
Virginia and the United States) presumably will argue against it.
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