Briefs Responding to the Sixth Circuit RLUIPA
Petition |
The Acting SG has filed a brief for the United States in No. 03-9877,
Cutter v. Wilkinson, which is a petition from the decision of the
U.S. Court of Appeals for the Sixth Circuit holding that section 3 of the
Religious Land Use and Institutionalized Persons Act of 2000 violates the
Establishment Clause. More details on this petition and a related petition
from a Fourth Circuit case, No. 03-104, Bass v. Madison, can be
found here and here.
The SG has recommended that the
Court grant Bass and hold Cutter pending disposition of
Bass.
Respondent State of Ohio, on the other hand, has acquiesced in the petition in Cutter.
Ohio reasons that it, unlike the State of Virginia in Bass, will
present the Establishment Clause theory on which it prevailed. (Virginia
rejects that theory but is prepared to argue two different Establishment
Clause theories.)
Links to the briefs
available here:
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----- Original Message -----
Sent: Wednesday, June 30, 2004 10:19
AM
Subject: Re: Cert. Petitions in RLUIPA
Prison Cases
The Court did not rule on the petition in
Bass. Presumably this means the Court wishes to consider that
petition in conjunction with the plaintiffs' petition in Cutter;
responsive briefs in Cutter are due in three weeks. The
Court will consider both petitions at its first conference next Term.
This appears to mean that for at least the remainder of this year, section 3
of RLUIPA will, in effect, be inoperative in prisons in Michigan, Ohio,
Kentucky and Tennessee.
----- Original Message -----
Sent: Friday, May 28, 2004 5:55
PM
Subject: Cert. Petitions in RLUIPA
Prison Cases
The SG today filed a Brief for the United States -- a Respondent that
intervened to defend the constitutionality of RLUIPA -- in No. 03-1404,
Bass v. Madison. (See discussion below.) The SG, like
the plaintiff, argues that the Court should grant cert. to decide whether
section 3 of RLUIPA violates the Establishment Clause, but that the Court
should deny cert. on the remaining constitutional challenges to the statute.
As for the Sixth Circuit case in which another peititon is pending, No.
03-9877, Cutter v. Wilkinson, the SG writes: "The later petition
filed in the Sixth Circuit case, Cutter, et al. v. Wilkinson, et
al., No. 03-9877, provides a less optimal vehicle for this Court's
review, due to the multiplicity of parties and factual claims presented in
the three combined cases, and the complications in the alignment of all the
different parties as petitioners and respondents that would arise were the
Court to consolidate consideration of that case with the present petition.
In addition, were the Court to grant that petition, in which RLUIPA was held
to violate the Establishment Clause, the respondent state officials would be
free to raise a host of distinct constitutional challenges as alternative
grounds for affirmance. As explained in point 2, infra, such a development
could require this Court to address a number of difficult, sensitive, and
vitally important constitutional issues without the benefit of their
consideration by the court of appeals in the instant case, in the
Cutter case, or by many other courts of appeals. Accordingly, if
this Court grants the instant petition, the United States will suggest that
the Cutter case be held pending the Court's ruling in the case at
hand."
----- Original Message -----
Sent: Friday, April 23, 2004 4:25
PM
Subject: Re: Cert. Petition in RLUIPA
Case
The plaintiffs in Sixth Circuit case,
Cutter v. Wilkinson, have filed a petition for cert. The
Case No. is 03-9877. See http://www.supremecourtus.gov/docket/03-9877.htm.
If anyone has an electronic copy, please post it. The
Court will not rule on the petition in Cutter or in Bass
v. Madison until the SG files briefs for the Respondent United
States. If such briefs are filed by May 28th, then the Court will
act on the petition(s) this Term (i.e., on or before June
28th).
----- Original Message -----
----- Original Message -----
Sent: Saturday, April 17, 2004 7:32
AM
Subject: Re: Cert. Petition in
RLUIPA Case
Also, there's an article by Richard
Schragger (U. Va.) in the latest Harvard Law Review, The Role of the
Local in the Doctrine and Discourse of Religious Liberty, 117
Harv. L. Rev. 1810 (2004), that apparently (I haven't yet read it)
argues that national religious-accommodation law, such as
RLUIPA, is problematic from a Religion Clause perspective in ways that
analogous state and local religious accommodations would not be -- which
also happens to be the principal theme of the State of Virginia's
petition in Bass.
----- Original Message -----
Sent: Thursday, April 08, 2004
5:36 PM
Subject: Re: Cert. Petition in
RLUIPA Case
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.
----- Original Message -----
Sent: Thursday, April 08, 2004
1:57 PM
Subject: Re: Cert. Petition in
RLUIPA Case
The petition surprisingly focuses as
much or more on Commerce and Spending as it does on the
Establishment Clause. I think it's highly unlikely
that the Court would grant cert. on any question other than
(possibly) whether section 3 of RLUIPA violates the EC.
Also, the Sixth Circuit on March 3d
denied rehearing and rehearing en banc in Cutter v.
Wilkinson, so it does appear that there is a circuit
split. Does anyone know whether the plaintiffs in
Cutter plan to seek cert., and/or whether the plaintiffs in
Bass will oppose cert. on the first question
presented?
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