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What a fascinating opinion. J. Ginsburg upholds strict scrutiny with
respect to prison regulations, but at the same time demands deference to prison
authorities, as does RLUIPA. At the very end, she seems to caution
all lower courts to be very careful before they find for the
prisoner. Seems to me the prisons now have a Turner v. Safley rule in
fact, even if it is an RLUIPA federal claim in theory.
One interesting aspect of the opinions is J. Thomas's reservation of
the issue of Congress's power under either the Spending or Commerce
Clauses. He seems to withdraw any concerns about spending at the end
of his concurrence, though, which leaves the question whether RLUIPA is
valid under the Commerce Clause up front and center for RLUIPA in both the
prison and land use contexts. Obviously, further litigation to come.
Marci
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