With all due respect, Marci, levels of scrutiny do more than merely adjust levels of deference. They give us a substantive standard--compelling interest, not merely important or legitimate; least restrictive means, not any and all means--and they also adjust levels of deference by cautioning courts to be skeptical of legislative determinations that burden fundamental liberties. As I read Cutter, the Court was not saying that Congress meant "rationally related to any minimally legitimate state interest" when it codified a "compelling interest" and "least restrictive means test." Congress thought that some deference was due prison officials in identifying compellingly important security risks, but the stautory test still requires courts to require compelling interests and least restrictive means.
As Justice Ginsburg put it, the standard is explicitly strict scrutiny but "context matters" and the courts should give "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline consistent with considerations of cost and limited resources." 125 S. Ct. at 2123.
But she was also aware that context matters when persons are institutionalized in state-run prisons "in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise." Id. at 2121. Importantly, Justice Ginsburg emphasized the importance of protecting religious liberty in prisons, because "institutionalized persons are unable freely to attend to their religious needs and therefore are dependent on the government's permission and accommodation for exercise of their religion." Id. at 2122.
In other words, Marci's obituary for RLUIPA, like the erroneous report of Mark Twain's death, is premature. Context matters, and context cuts in both directions. Pls should win many--but not all--RLUIPA cases seeking reasonable religious accommodations.
Rick Duncan
[EMAIL PROTECTED] wrote:
With all due respect, levels of scrutiny adjust levels of deference. That's what they do. So if strict scrutiny requires deference to the government, we are no longer in the territory of strict scrutiny. Perhaps, on some theories, "plain" language should not be gutted by legis history, but the horse is out of the barn on the prison provisions of RLUIPA in Cutter.MarciIn a message dated 9/19/2005 10:26:14 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes:I think you need to read RLUIPA's statutory language--compelling interest and least restrictive means--together with Cutter's dictum about deference to prison officials. When you read the two together you still get strict scrutiny, however the deference should often lead courts to concur with prison officials about the compelling nature of security concerns. But least restrictive means should often require prison officials to accommodate prisoners if there is a reasonable way of doing so. And there are often many ways to maintain security. The legislative history should not be interpreted to gut the clear meaning of the actual statutory language.Rick Duncan_______________________________________________
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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