1. What explains the decision to grant cert. in this case, rather than Madison?
2. Is the Establishment Clause issue raised by the prison provisions of RLUIPA relatively unique? RLUIPA is held to violate the Establishment Clause because of the disparity in the way that religious liberty is protected (strict scrutiny review) in comparison to the level of protection provided to all other fundamental rights in the prison context (rational basis review). Outside of the prison context, one might plausibly argue that all other fundamental rights receive some serious level of review (even if it is less than strict scrutiny) so there would be less of a disparity between a statute requiring the rigorous review of laws substantially burdening the exercise of religion and the constitutional protection afforded other fundamental rights. On the other hand, one of the premises underlying Smith (an erroneous premise I think) is that no fundamental rights receive serious constitutional protection against neutral laws of general applicability -- that is why it would be anomalous to provide such review in free exercise cases. If the Court clings to that contention, then the disparity between religious liberty under RLUIPA and other rights in prisons also would be created by state RFRA's, federal RFRA and other broadly based religious accommodation statutes that operate outside of the context of prisons -- and the Court's decision in Cutter would control all broadly referenced accommodations of religion.
3. To what extent, if any, are the Court's religious speech cases ranging from Widmar to Good News Club influencing the Sixth Circuit's Establishment Clause analysis? The Court of Appeals in Cutter quotes at length from a hypothetical discussed by the District Court in Madison regarding two inmates who both receive racist literature -- but the source of one racist periodical is a white supremacist religion. The court wonders how the religious inmate can be provided preferential treatment with regard to access to expressive materials. While the Sixth Circuit discusses this as an Establishment Clause issue, it also raises a free speech issue. And given how speech intensive the exercise of religion in prisons is likely to be, isn't a free speech challenge to RLUIPA (as applied if not on its face) also a serious threat to the constitutionality of the statute. Is this another example of the Establishment Clause being used to challenge viewpoint discrimination in favor of religious speech instead of an arguably more on point free speech challenge (See., e.g. Texas Monthly).
Alan Brownstein UC Davis
At 11:49 AM 10/12/2004 -0400, you wrote:
What's remarkable is that the Court did exactly the opposite of what the SG urged -- it granted in Cutter and held in Bass v. Madison. Therefore not only must defenders of the statute file their briefs topside, but they must address all of the constitutional arguments -- Commerce and Spending, in addition to the Establishment Clause. What could have been a discrete and interesting EC case has now turned into a potential blockbuster on several important constitutional questions that have ramifications far beyond the reach of RLUIPA.
----- Original Message -----
From: "Anthony Picarello" <<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]>
Sent: Tuesday, October 12, 2004 11:30 AM
Subject: Cert granted in Cutter
Supreme Court to Review Inmate Freedom Law
By GINA HOLLAND Associated Press Writer
WASHINGTON (AP) -- The Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism.
The case does not question inmates' right to practice their religion, but asks whether states have to accommodate requests for a particular diet, special haircut or religious symbols.
Some states argue that a 2000 law intended to protect the rights of prisoners amounts to an unconstitutional government promotion of religion - and that it makes prisons more dangerous.
States that receive federal funds must accommodate prisoners' religious beliefs unless wardens can show that the government has a strong reason not to, under a 2000 law.
The Supreme Court will consider an appeal from Ohio inmates, described as a Wiccan witch, a Satanist, a racial separatist who is an ordained minister of the Christian Identity Church, and others.
The state inmates had sued claiming they were denied access to religious literature and ceremonial items. The Cincinnati based-6th U.S. Circuit Court of Appeals used their case to strike down the law, called the Religious Land Use and Institutionalized Persons Act, on grounds that it violates the separation of church and state.
"All of (the law's) defenders and antagonists, whether public or private, whether winners or losers below, are all of one voice on the need for some review in some case, and Ohio joins that chorus," Ohio Solicitor Douglas Cole told the court.
He said that inmates can use religion as a cover to promote gangs.
The inmates' lawyer, Ohio State University law professor David Goldberger, said that prisoners are stripped of many of their rights, but access to religious should not be one of them.
The First Amendment both guarantees the freedom to exercise one's religion and says government may not "establish" religion. As interpreted by the Supreme Court, the Establishment Clause has come to mean that government is generally prohibited from promoting or endorsing religion.
Before Congress acted, "prisoners, detainees and individuals institutionalized in mental hospitals faced substantial and unwarranted burdens in freely practicing their faiths," the Supreme Court was told by Bush administration lawyers. The administration has defended the law.
The case is Cutter v. Wilkinson, 03-9877.
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