RLUIPA Unanimously Upheld in Cutter
Details to follow. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
Justice Ginsburg wrote the opinion. There's a separate Thomas concurrence. More to follow. - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Tuesday, May 31, 2005 10:05 AM Subject: RLUIPA Unanimously Upheld in Cutter Details to follow. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
The funny thing about "compelling interest with deference" is that it has been present since at leastKorematsu. Bobby In a message dated 5/31/2005 11:21:55 AM Eastern Standard Time, [EMAIL PROTECTED] writes: One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM 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 tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting 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 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
Agreed. But on my reading of Korematsu, Black seems to be saying "even though we decide for the government in this case, the vast/overwhelming majority of discriminations are likely to be declared unconstitutional." Is it a fair reading of Ginsburg to think that her opinion says, "even though we reject the facial attack on the statute, lots of state practices will survive compelling interest." MAG [EMAIL PROTECTED] 05/31/05 11:25AM The funny thing about "compelling interest with deference" is that it has been present since at leastKorematsu. Bobby In a message dated 5/31/2005 11:21:55 AM Eastern Standard Time, [EMAIL PROTECTED] writes: One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM 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 tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting 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 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
As a bit of an aside, perhaps, the "compelling interest" standard of Korematsu, or as Bobby appropriately labeled it, "compelling interest with deference," is the standard we use rather than anything directly from Brown v. Board. Brown v. Board changed the country and indeed the law, but it generally lacks the kind of standard that can be used other than the negative one that separate is not equal. That in itself is huge, but today it is the Korematsu standard that we use across a range of cases, not Brown. And Brown did not use or even cite Korematsu.Which brings me to that interesting problem (one of many) in religious freedom cases -- what roles do equality principles play? Here, Congress is deciding that all religious practices are to be treated the same -- neutrality version of equality -- unless the state shows the compelling state interest to burden the exercise and shows that it is using the least restrictive alternative to do so. So we see a bit of Brown (not distinguishing on the basis of some classification -- not separating and treating unequally) and a lot of Korematsu. And we can't push Brown too far here because we are in fact, in accommodating diverse religious practices in some sense mandating that the institutionalized people be treated unequally (kosher food, sabbatarians, etc.).SteveOn May 31, 2005, at 11:25 AM, [EMAIL PROTECTED] wrote: The funny thing about "compelling interest with deference" is that it has been present since at least Korematsu. Bobby -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ ". . . Life must be understood backwards. But . . . it must be lived forwards. " Soren Kierkegaard ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?: That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context: The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.). (That's one primary explanation for Smith itself --the Court no doubt wished to call a halt to its own charade.) Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith FreeExercise cases. The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterringstates from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions. But if the state has a good reason for denying the exemption, it likely will win in litigation. That's what has happened at the federal level, with modest results that all parties appear to approve. The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. - Original Message - From: Mark Graber To: religionlaw@lists.ucla.edu Sent: Tuesday, May 31, 2005 11:20 AM Subject: Re: RLUIPA Unanimously Upheld in Cutter One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM 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 tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting 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 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
Actually, what is most striking is that the Court reads RLUIPA as requiring deference to prison officials despite the least restrictive means requirement. The latter does seem to be read out of the statute. Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
This very paradox -- and the problems of the limits of logic and language in the law -- was the main impetus for an article I wrote some years back about how RFRA could not be interpreted or applied in a literal way. Instead, there is an inherent sliding scale of compellingness of the interest the the restrictiveness of the standard that varies with context -- a point made explicitly by Ginsburg in this opinion (p. 12).The rhetorical mismatch is unfortunate and unnecessary as a matter of logic and language -- Congress could have explicitly adopted some other standard, but politics being what they are, this was probably the best that could be done.I find very interesting that the concern some of us have had that the Court would say that Congress simply cannot set standards of interpretation for freedoms like this has been answered as at least a number of us hoped and expected -- there is play in the joints -- while Congress cannot set the minimum of protection (cannot change the Court's interpretation of the 1st amendment, Congress can, so long as it respects those minimum standards, set other standards -- here, there is room to play between the free exercise and establishment constitutional standards.SteveOn May 31, 2005, at 11:47 AM, Marty Lederman wrote: Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?: That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context: The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.). (That's one primary explanation for Smith itself -- the Court no doubt wished to call a halt to its own charade.) Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith Free Exercise cases. The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterring states from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions. But if the state has a good reason for denying the exemption, it likely will win in litigation. That's what has happened at the federal level, with modest results that all parties appear to approve. The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "Example is always more efficacious than precept." Samuel Johnson, 1759 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
Time for another AALS panel writing the obit for Lemon? :)SteveOn May 31, 2005, at 12:12 PM, Stuart BUCK wrote:So has the Lemon test been interred, or not? Compare footnote 6 of the majority ("We resolve this case on other grounds."), with Thomas's footnote 1 ("The Court properly declines to assess RLUIPA under the discredited test of Lemon . . . .").Best,Stuart Buck -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Nothing worth doing is completed in our lifetime, Therefore, we are saved by hope. Nothing true or beautiful or good makes complete sense in any immediate context of history; Therefore, we are saved by faith. Nothing we do, however virtuous, can be accomplished alone. Therefore, we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as from our own; Therefore, we are saved by the final form of love which is forgiveness. Reinhold Neibuhr ___
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Re: RLUIPA Unanimously Upheld in Cutter
Indeed, I recall reading that Thurgood Marshall used the Korematsu test in oral argument, and I also seem to recall thatstrict scrutiny was used inMarshall's brief.If that's so, it's even more astounding that Chief Justice Warren did not include such an analysis in his opinion. I seem to recall reading or being told that the reason for this omission was Warren's conviction that the opinion should be jargon free. Can anyone verify this? In light of the subsequent use of Korematsu and Brown (often jointly cited), it's difficult to understand Warren's failure to mention Korematsu. Bobby In a message dated 5/31/2005 11:43:34 AM Eastern Standard Time, [EMAIL PROTECTED] writes: As a bit of an aside, perhaps, the "compelling interest" standard of Korematsu, or as Bobby appropriately labeled it, "compelling interest with deference," is the standard we use rather than anything directly from Brown v. Board. Brown v. Board changed the country and indeed the law, but it generally lacks the kind of standard that can be used other than the negative one that separate is not equal. That in itself is huge, but today it is the Korematsu standard that we use across a range of cases, not Brown. And Brown did not use or even cite Korematsu. Which brings me to that interesting problem (one of many) in religious freedom cases -- what roles do equality principles play? Here, Congress is deciding that all religious practices are to be treated the same -- neutrality version of equality -- unless the state shows the compelling state interest to burden the exercise and shows that it is using the least restrictive alternative to do so. So we see a bit of Brown (not distinguishing on the basis of some classification -- not separating and treating unequally) and a lot of Korematsu. And we can't push Brown too far here because we are in fact, in accommodating diverse religious practices in some sense mandating that the institutionalized people be treated unequally (kosher food, sabbatarians, etc.). Steve On May 31, 2005, at 11:25 AM, [EMAIL PROTECTED] wrote: The funny thing about "compelling interest with deference" is that it has been present since at leastKorematsu. Bobby -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ ". . . Life must be understood backwards. But . . . it must be lived forwards. " Soren Kierkegaard___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: RLUIPA Unanimously Upheld in Cutter
I see no interment. They have ignored it before, and
then returned to it when they thought it helpful. This opinion relies on
Amos, and Amos marches through the Lemon test, so it
may just be that they have more specific doctrine to work with on this
issue.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988
(fax)
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven
JamarSent: Tuesday, May 31, 2005 11:20 AMTo: Law
Religion issues for Law AcademicsSubject: Re: RLUIPA Unanimously
Upheld in Cutter
Time for another AALS panel writing the obit for Lemon? :)
Steve
On May 31, 2005, at 12:12 PM, Stuart BUCK wrote:
So has the Lemon test been interred, or not? Compare footnote 6 of the majority
("We resolve this case on other grounds."), with Thomas's footnote 1 ("The
Court properly declines to assess RLUIPA under the discredited test of Lemon .
. . .").
Best,
Stuart Buck
--
Prof. Steven D. Jamar
vox:
202-806-8017
Howard University School of Law
fax:
202-806-8428
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
Nothing worth doing is completed in our lifetime,
Therefore, we are saved by hope.
Nothing true or beautiful or good makes complete sense in any immediate
context of history;
Therefore, we are saved by faith.
Nothing we do, however virtuous, can be accomplished alone.
Therefore, we are saved by love.
No virtuous act is quite as virtuous from the standpoint of our friend or
foe as from our own;
Therefore, we are saved by the final form of love which is
forgiveness.
Reinhold Neibuhr
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
Re: RLUIPA Unanimously Upheld in Cutter
My SCOTUSblog post on the decision. I welcome suggestions -- and encourage responses in the "Comments" section of theblog. http://www.scotusblog.com/movabletype/archives/2005/05/cutter_v_wilkin.html Cutter v. Wilkinson 11:54 AM | Marty Lederman | Comments (0) | TrackBack (0) In Cutter v. Wilkinson, No. 03-9877, the U.S. Court of Appeals for the Sixth Circuit held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA) facially violated the Establishment Clause. The Supreme Court today, in an opinion written by Justice Ginsburg, unanimously rejected the Sixth Circuit's sweeping and fairly radical holding. A very thorough, very helpful background memo on RLUIPA and on the Cutter case can be found at this Pew Forum site. In brief, RLUIPA section 3 requires state prison systems (and other state institutions) to alleviate substantial burdens that they impose on the religious exercise of persons they house, unless they can show that denial of the religious accommodation is the "least restrictive means" of advancing a "compelling govenrmental interest." RLUIPA section 3 applies whenever the state agency receives federal funds, and/or when the burden on religious exercise (or its alleviation) affects interstate commerce. The section 3 substantive test is, in effect, the test of Sherbert v. Verner, which nominally governed Free Exercise doctrine until the Court largely abandoned it in its 1990 decision in Employment Division v. Smith. Congress had previously codified that same test in the Religious Freedom Restoration Act, which governs federal prisons. (The Court held in City of Boerne v. Flores that Congress lacks the power under section 5 of the Fourteenth Amendment to apply RFRA to the states.) The court of appeals had held that it was impermissible for Congress to accommodate religious exercise if it did not provide equivalent accommodation to all other constututional rights -- that is, that a legislature could not single out religious exercise for special accommodation. This argument appeared to be inconsistent with the Court's 1987 decision in Corporation of Presiding Bishop v. Amos, and the Court today easily rejected it. As the Court noted, the Sixth Circuit's rationale would invalidate virtually all religious accommodations -- including those that Ohio itself regularly makes. In a variation on the "test" articulated in Amos, the Court in Cutter held that an accommodation is permissible if it alleviates "exceptional government-created burdens on private religious exercise," so long as the accommodation is "measured so that it does not override other significant interests." There is no such "override" of other significant interests under RLUIPA, the Court explained, because under the statute itself, security concerns are a "compelling interest"; deference is due to institutional officials' expertise in this area; and (the Court strongly implied) therefore a prison would generally satisfy RLUIPA's nominally strict scrutiny where there is a genuine security-related reason to deny the religious exemption: "We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns." The Court did not address several important subsidiary questions involving its articulated accommodation test, such as: -- When is a government-imposed burden on religious exercise "exceptional"? The adjective is a curious development: In Amos, the Court approved alleviation of "significant" government-imposed burdens. [Attention prospective law-student note-writers: What is the practical and doctrinal import of the Court's change from "significant" to "exceptional"?] -- What about alleviation of privately imposed burdens, such as when the legislature requires private employers to accommodate their employees' religious exercise? The Court doesn't say; but it emphasizes that RLUIPA satisfies the Constitution because the burdens it alleviates are government-imposed. -- If an accommodation is constitutionally problematic when it "overrides other significant interests" -- a consideration also strongly emphasized in City of Thornton v. Caldor -- why didn't the accommodation in Amos itelf raise serious questions, where the statutory exemption permitted an employer to discharge a loyal employee who had been on the job for 16 years? The Court also declined to address several other important questions. For instance, the Court avoided opining about whether RFRA is constitutional as applied to the federal government (see footnote 2), and about the constitutionality of section 2 of RLUIPA, which deals with local land-use regulation (see footnote 3). More importantly, the Court avoided any decision on Ohio's alternative grounds for invalidating section 3. Because the court of appeals' rationale was so sweeping and (thus) so vulnerable, Ohio and
RE: RLUIPA Unanimously Upheld in Cutter
I agree that the true test on the meaning of strict scrutiny under RLUIPA or RFRA will come with the UDV case next term. But I'd add that I don't see a meaningful dilution of "strict scrutiny" in this decision. Instead, the Court just reaffirmedtwo unremarkable propositions: (1) that prison security is a compelling state interest, and (2) that prison officials are entitled to some deference in their assessment whether a particular accommodation threatens that interest. Is this anything new? Is it fair to say that the opinion says anything stronger than that? Prison officials still bear the burden of proof and persuasion to show that this interest is actually present in the particular context, and that they have chosen the "least restrictive means" of serving that interest, also in context. Incidentally, I could find no suggestion at allthat "least restrictive means" is somehow eliminated from that burden. In fact, I did see a favorable citation to two district court opinions (fn11) where "least restrictive means" was an important part of the analysis under RFRA. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 31, 2005 11:47 AMTo: Law Religion issues for Law AcademicsSubject: Re: RLUIPA Unanimously Upheld in Cutter Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?: That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context: The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.). (That's one primary explanation for Smith itself --the Court no doubt wished to call a halt to its own charade.) Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith FreeExercise cases. The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterringstates from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions. But if the state has a good reason for denying the exemption, it likely will win in litigation. That's what has happened at the federal level, with modest results that all parties appear to approve. The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. - Original Message - From: Mark Graber To: religionlaw@lists.ucla.edu Sent: Tuesday, May 31, 2005 11:20 AM Subject: Re: RLUIPA Unanimously Upheld in Cutter One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM 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 tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting 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 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can
Whither Lemon?
I think it's been clear for a long while that
when the Court cites theLemon test, it's almost an afterthought
-- a pro forma doctrinal appendage or a fig leaf. (This was especially
true in Amos, I think.)That's why many folks who brief
these cases to the Court -- Doug and I included -- choose not to rely on the
Lemonframework: It doesn't really get at what's going on in
the cases, not even at a doctrinal level, and thus doesn't helpfully "speak" to
the Court. The one very significant exception, I think, is thenarrow
line of cases (e.g., Edwards v. Aguillard) thatcan best
be explained with reference to the first (purpose) prong of
Lemon.
- Original Message -
From:
Douglas
Laycock
To: Law Religion issues for Law
Academics
Sent: Tuesday, May 31, 2005 1:28 PM
Subject: RE: RLUIPA Unanimously Upheld in
Cutter
I see no interment. They have ignored it before,
and then returned to it when they thought it helpful. This opinion
relies on Amos, and Amos marches through the Lemon
test, so it may just be that they have more specific doctrine to work with on
this issue.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
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From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven
JamarSent: Tuesday, May 31, 2005 11:20 AMTo: Law
Religion issues for Law AcademicsSubject: Re: RLUIPA Unanimously
Upheld in Cutter
Time for another AALS panel writing the obit for Lemon? :)
Steve
On May 31, 2005, at 12:12 PM, Stuart BUCK wrote:
So has the Lemon test been interred, or not? Compare footnote 6 of the majority
("We resolve this case on other grounds."), with Thomas's footnote 1 ("The
Court properly declines to assess RLUIPA under the discredited test of Lemon
. . . .").
Best,
Stuart Buck
--
Prof. Steven D. Jamar
vox:
202-806-8017
Howard University School of Law
fax: 202-806-8428
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
Nothing worth doing is completed in our
lifetime,
Therefore, we are saved by hope.
Nothing true or beautiful or good makes complete
sense in any immediate context of history;
Therefore, we are saved by faith.
Nothing we do, however virtuous, can be
accomplished alone.
Therefore, we are saved by love.
No virtuous act is quite as virtuous from the
standpoint of our friend or foe as from our own;
Therefore, we are saved by the final form of love
which is forgiveness.
Reinhold Neibuhr
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Re: RLUIPA Unanimously Upheld in Cutter
I didn't intend to suggest anything otherwise -- I believe we're in agreement, and apologize for any confusion. Where we might disagree is on the question of whether "strict" scrutiny was ever all-that-strict in Free Exercise/RFRA/RLUIPA law. - Original Message - From: Anthony Picarello To: Law Religion issues for Law Academics Sent: Tuesday, May 31, 2005 2:08 PM Subject: RE: RLUIPA Unanimously Upheld in Cutter I agree that the true test on the meaning of strict scrutiny under RLUIPA or RFRA will come with the UDV case next term. But I'd add that I don't see a meaningful dilution of "strict scrutiny" in this decision. Instead, the Court just reaffirmedtwo unremarkable propositions: (1) that prison security is a compelling state interest, and (2) that prison officials are entitled to some deference in their assessment whether a particular accommodation threatens that interest. Is this anything new? Is it fair to say that the opinion says anything stronger than that? Prison officials still bear the burden of proof and persuasion to show that this interest is actually present in the particular context, and that they have chosen the "least restrictive means" of serving that interest, also in context. Incidentally, I could find no suggestion at allthat "least restrictive means" is somehow eliminated from that burden. In fact, I did see a favorable citation to two district court opinions (fn11) where "least restrictive means" was an important part of the analysis under RFRA. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 31, 2005 11:47 AMTo: Law Religion issues for Law AcademicsSubject: Re: RLUIPA Unanimously Upheld in Cutter Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?: That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context: The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.). (That's one primary explanation for Smith itself --the Court no doubt wished to call a halt to its own charade.) Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith FreeExercise cases. The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterringstates from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions. But if the state has a good reason for denying the exemption, it likely will win in litigation. That's what has happened at the federal level, with modest results that all parties appear to approve. The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. - Original Message - From: Mark Graber To: religionlaw@lists.ucla.edu Sent: Tuesday, May 31, 2005 11:20 AM Subject: Re: RLUIPA Unanimously Upheld in Cutter One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM 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 tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting 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 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see
RE: RLUIPA Unanimously Upheld in Cutter
Well, yes and no, but mostly no. On its facts, Sherbert involved better treatment for a very narrow slice of secular interests than for Sherbert's religious interest. That fact was not noted in the Sherbert opinion, but it was the Court's basis for preserving the result in Smith. Sherbert also involved better treatment for Sunday worshipers than for Saturday worshipers. That fact was noted in the Sherbert opinion, but it explicitlywas not the Court'sbasis for its judgment. The Court said that the burden on Sherbert's religion required compelling justification, and that the religious discrimination "compounded" the violation. 398 U.S. at 406. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Tuesday, May 31, 2005 12:59 PMTo: religionlaw@lists.ucla.eduSubject: Re: RLUIPA Unanimously Upheld in Cutter Marty-- I would not characterize RLUIPA as reflecting the Sherbert standard. The Court was quite clear in Smith that Sherbert strict scrutiny is triggered when the government treats secular reasons more favorably than it does religious reasons. That is not an issue here. The standard, if it did appear in earlier cases, is the Wisconsin v. Yoder standard, which applies strict scrutiny to neutral, generally applicable laws.I understand that the push for RFRA and RLUIPA involved hearkening back to Sherbert, but it is my view those arguments are simply wrong as a historical matter, and as a matter of how the Court has interpreted its own doctrines. Locke v. Davey provides further support for my reading of Sherbert. Marci In a message dated 5/31/2005 1:46:25 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: My SCOTUSblog post on the decision. I welcome suggestions -- and encourage responses in the "Comments" section of theblog. http://www.scotusblog.com/movabletype/archives/2005/05/cutter_v_wilkin.html Cutter v. Wilkinson 11:54 AM | Marty Lederman | Comments (0) | TrackBack (0) In Cutter v. Wilkinson, No. 03-9877, the U.S. Court of Appeals for the Sixth Circuit held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA) facially violated the Establishment Clause. The Supreme Court today, in an opinion written by Justice Ginsburg, unanimously rejected the Sixth Circuit's sweeping and fairly radical holding. A very thorough, very helpful background memo on RLUIPA and on the Cutter case can be found at this Pew Forum site. In brief, RLUIPA section 3 requires state prison systems (and other state institutions) to alleviate substantial burdens that they impose on the religious exercise of persons they house, unless they can show that denial of the religious accommodation is the "least restrictive means" of advancing a "compelling govenrmental interest." RLUIPA section 3 applies whenever the state agency receives federal funds, and/or when the burden on religious exercise (or its alleviation) affects interstate commerce. The section 3 substantive test is, in effect, the test of Sherbert v. Verner, which nominally governed Free Exercise doctrine until the Court largely abandoned it in its 1990 decision in Employment Division v. Smith. Congress had previously codified that same test in the Religious Freedom Restoration Act, which governs federal prisons. (The Court held in City of Boerne v. Flores that Congress lacks the power under section 5 of the Fourteenth Amendment to apply RFRA to the states.) The court of appeals had held that it was impermissible for Congress to accommodate religious exercise if it did not provide equivalent accommodation to all other constututional rights -- that is, that a legislature could not single out religious exercise for special accommodation. This argument appeared to be inconsistent with the Court's 1987 decision in Corporation of Presiding Bishop v. Amos, and the Court today easily rejected it. As the Court noted, the Sixth Circuit's rationale would invalidate virtually all religious accommodations -- including those that Ohio itself regularly makes. In a variation on the "test" articulated in Amos, the Court in Cutter held that an accommodation is permissible if it alleviates "exceptional government-created burdens on private religious exercise," so long as the accommodation is "measured so that it does not override other significant interests." There is no such "override" of other significant interests under RLUIPA, the Court explained, because under the statute itself, security concerns are a "compelling interest"; deference is due to institutional officials' expertise in this area; and (the Court strongly implied) therefore a prison would generally satisfy RLUIPA's
