The Cutter petition itself, by the way,
can be found here:
----- Original Message -----
Sent: Friday, July 23, 2004 3:14 PM
Subject: Re: Cert. Petitions in RLUIPA
Prison Cases
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:
|
----- 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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