Madison v. Riter

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IRA W. MADISON, 

Petitioner-Appellant,

v.

R. RITER, a/k/a R. Ruter, CCS

Chairman; DUNCAN MILLS; D. J.

ARMSTRONG; GARY BASS, Chief of

Operations, CCS;

COMMONWEALTH OF VIRGINIA; LEWIS

B. CEI, Special Programs Manager,

Respondents-Appellees.  No. 03-6362

ALEPH INSTITUTE; AMERICAN CIVIL

LIBERTIES UNION; THE AMERICAN

JEWISH COMMITTEE; THE AMERICAN

JEWISH CONGRESS; THE BAPTIST JOINT

COMMITTEE ON PUBLIC AFFAIRS; THE

BECKET FUND FOR RELIGIOUS

LIBERTY; THE CHRISTIAN LEGAL

SOCIETY; PEOPLE FOR THE AMERICAN

WAY,

Amici Supporting Appellant.



2 MADISON v. RITER

UNITED STATES OF AMERICA, 

Intervenor-Appellant,

v.

R. RITER, a/k/a R. Ruter, CCS

Chairman; DUNCAN MILLS; D. J.

ARMSTRONG; GARY BASS, Chief of

Operations, CCS;

COMMONWEALTH OF VIRGINIA; LEWIS

B. CEI, Special Programs Manager,

Respondents-Appellees.  No. 03-6363

ALEPH INSTITUTE; AMERICAN CIVIL

LIBERTIES UNION; THE AMERICAN

JEWISH COMMITTEE; THE AMERICAN

JEWISH CONGRESS; THE BAPTIST JOINT

COMMITTEE ON PUBLIC AFFAIRS; THE

BECKET FUND FOR RELIGIOUS

LIBERTY; THE CHRISTIAN LEGAL

SOCIETY; PEOPLE FOR THE AMERICAN

WAY,

Amici Supporting Appellant.



Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, Senior District Judge.

(CA-01-596-7)

Argued: October 28, 2003

Decided: December 8, 2003

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote

the opinion, in which Judge Michael and Judge Duncan joined.

MADISON v. RITER 3

COUNSEL

ARGUED: Gene C. Schaerr, SIDLEY, AUSTIN, BROWN &

WOOD, L.L.P., Washington, D.C.; Michael Scott Raab, Appellate

Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-

TICE, Washington, D.C., for Appellants. William Eugene Thro, Dep-

uty State Solicitor, OFFICE OF THE ATTORNEY GENERAL,

Richmond, Virginia, for Appellees. ON BRIEF: Richard H. Menard,

Jr., SIDLEY, AUSTIN, BROWN & WOOD, L.L.P., Washington,

D.C.; Robert D. McCallum, Jr., Assistant Attorney General, Stuart E.

Schiffer, Acting Assistant Attorney General, John L. Brownlee,

United States Attorney, Mark B. Stern, Appellate Staff, Civil Divi-

sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellants. Jerry W. Kilgore, Attorney General, William H.

Hurd, State Solicitor, Maureen Riley Matsen, Deputy State Solicitor,

Pamela A. Sargent, Senior Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

Kevin J. Hasson, Anthony R. Picarello, Jr., Roman P. Storzer, Derek

L. Gaubatz, THE BECKET FUND FOR RELIGIOUS LIBERTY,

Washington, D.C., for Amici Curiae.

OPINION

WILKINSON, Circuit Judge:

Appellant Ira W. Madison, a convict held in a Virginia Department

of Corrections prison, was denied his requests for kosher meals that

he claims his religious beliefs require. He sued the Commonwealth of

Virginia and officials of the Virginia Department of Corrections,

alleging among other claims a violation of section 3 of the Religious

Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The

district court ruled that the provision had an impermissible effect of

advancing religion under the second prong of the Lemon test. See

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Because we find

that Congress can accommodate religion in section 3 of RLUIPA

without violating the Establishment Clause, we reverse. To hold oth-

erwise and find an Establishment Clause violation would severely

undermine the ability of our society to accommodate the most basic

rights of conscience and belief in neutral yet constructive ways.

4 MADISON v. RITER

I.

A.

From 2000 to the present, Madison has claimed to be a member of

the Church of God and Saints of Christ, a congregation founded in

1896 and headquartered at Temple Beth El in Suffolk, Virginia.

Church members are commonly known as Hebrew Israelites, and they

claim to be "followers of the anointed God" who honor but do not

worship Jesus Christ. Most importantly for purposes of this case,

Madison’s church requires its members to abide by the dietary laws

laid out in the Hebrew Scriptures.

The parties dispute the timing of Madison’s conversion and his

affiliation with a wide range of other religious groups during his

incarceration. What is clear is that in July 2000 and again in March

2001, Madison informed correctional officials that his religious

beliefs required him to receive a kosher diet, defined as a "common

fare diet" by the Virginia Department of Corrections. Both requests

were approved by local prison officials, but denied by Department of

Corrections administrators in Richmond. The Commonwealth

rejected Madison’s requests because it determined that Madison

already had adequate alternatives from the regular, vegetarian, and no

pork daily menus; because it doubted the sincerity of Madison’s reli-

gious beliefs; and because it considered Madison’s history of disci-

plinary problems.

In August 2001, Madison challenged the denial of his request in

district court, relying in part on section 3 of RLUIPA. Section 3(a) of

RLUIPA states that "[n]o government shall impose a substantial bur-

den on the religious exercise of a person residing in or confined to an

institution . . . even if the burden results from a rule of general appli-

cability, unless the government demonstrates that imposition of the

burden on that person — (1) is in furtherance of a compelling govern-

ment interest; and (2) is the least restrictive means of furthering that

compelling government interest." 42 U.S.C. § 2000cc-1(a) (2000).

Section 3(b) of RLUIPA states that Section 3(a) applies whenever the

substantial burden at issue "is imposed in a program or activity that

receives Federal financial assistance." 42 U.S.C. § 2000cc-1(b)(1). In

2002 the Commonwealth Department of Corrections received $4.72

MADISON v. RITER 5

million — approximately 0.5% of its budget — from the federal gov-

ernment, thus triggering the statute’s applicability. Madison’s lawsuit

relied on section 4(a) of RLUIPA, which creates a private right of

action that allows any person to "assert a violation of this chapter as

a claim or defense in a judicial proceeding" and to "obtain appropriate

relief against a government." 42 U.S.C. § 2000cc-2(a).

The district court denied Madison’s motion for summary judgment

concerning his constitutional claims on August 23, 2002, and it

deferred ruling on his RLUIPA claim pending briefing and argument

on the statute’s constitutionality. The district court also granted the

United States leave to intervene to defend the statute, pursuant to 28

U.S.C. § 2403(a).

On January 23, 2003, the district court found that section 3 of

RLUIPA impermissibly advanced religion by offering greater legisla-

tive protection to the religious rights of prisoners than to other funda-

mental rights that were similarly burdened. See Madison v. Riter, 240

F. Supp. 2d 566, 577 (W.D. Va. 2003). The district court therefore

rejected Madison’s statutory claim, and simultaneously certified the

question of RLUIPA’s constitutionality for interlocutory appeal under

28 U.S.C. § 1292(b). Madison and the United States filed timely peti-

tions with this court to appeal the order, and their petitions were

granted.

B.

The legislative and judicial background that led to RLUIPA’s

enactment are important for considering Madison’s appeal. Congress

crafted RLUIPA to conform to the Supreme Court’s decisions in

Employment Division v. Smith, 494 U.S. 872 (1990), and City of

Boerne v. Flores, 521 U.S. 507 (1997). In Smith, the Court held that

laws of general applicability that incidentally burden religious con-

duct do not offend the First Amendment. See 494 U.S. at 890. The

neutrality principle in Smith largely complemented the traditional def-

erence that courts afford to prison regulations that impose burdens on

prisoners’ rights. See Turner v. Safley, 482 U.S. 78, 89-90 (1987).1 At

1

Turner v. Safley laid out a four-factor "rational-relationship" test for

analyzing the constitutionality of regulations that burden prisoners’ fun-

6 MADISON v. RITER

the same time, however, the Smith Court openly invited the political

branches to provide greater protection to religious exercise through

legislative action. See 494 U.S. at 890.

In 1993, Congress responded to Smith by enacting the Religious

Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq.,

which Congress claimed was premised on its remedial powers under

section 5 of the Fourteenth Amendment. RFRA prohibited federal and

state governments from "substantially burden[ing]" a person’s exer-

cise of religion, even as the result of a law of general applicability,

unless the government could demonstrate that the burden "(1) is in

furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental inter-

est." 42 U.S.C. § 2000bb-1(a)-(b).

The Supreme Court’s decision in City of Boerne v. Flores, 521

U.S. 507 (1997), invalidated RFRA as it applied to states and locali-

ties. The Court held that the scope of the statute exceeded Congress’s

remedial powers under section 5 of the Fourteenth Amendment. See

521 U.S. at 532-36.

While RFRA continued to apply to the federal government, see

Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002); O’Bryan v.

Bureau of Prisons, No. 02-4012, 2003 WL 22533454, at *2 (7th Cir.

damental rights. 482 U.S. at 89-90. Under Turner, courts must consider

(1) whether a "valid, rational connection [exists] between the prison reg-

ulation and the legitimate governmental interest put forward to justify it,"

(2) whether "alternative means of exercising the right [exist] that remain

open to prison inmates," (3) what "impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on the

allocation of prison resources generally," and (4) whether there was an

"absence of ready alternatives" to the regulation in question. Id. State and

local prison regulations that burden prisoners’ religious exercise have

been subject to this rational-relationship test. See O’Lone v. Estate of

Shabazz, 482 U.S. 342, 349-50 (1987); see also In re Long Term Admin-

istrative Segregation of Inmates Designated as Five Percenters, 174 F.3d

464, 468-69 (4th Cir. 1999); Hines v. South Carolina Dept. of Correc-

tions, 148 F.3d 353, 357 (4th Cir. 1998). The deferential test that courts

customarily apply to prison regulations, however, does not operate to

prevent legislative bodies from adopting a more searching standard.

MADISON v. RITER 7

Nov. 10, 2003), in September 2000, Congress attempted to reinstate

RFRA’s protection against government burdens on religious exercise

imposed by states and localities by enacting the Religious Land Use

and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et

seq. This statute mirrored the provisions of RFRA, but its scope was

limited to laws and regulations concerning land use and institutional-

ized persons. See 42 U.S.C. § 2000cc-1(a). RLUIPA’s enactment was

premised on congressional findings similar to those made for RFRA,

namely, that in the absence of federal legislation, prisoners, detainees,

and institutionalized mental health patients faced substantial burdens

in practicing their religious faiths. See Joint Statement of Senator

Hatch and Senator Kennedy, 146 Cong. Rec. S7774-01 (daily ed. July

27, 2000).

In passing RLUIPA, Congress sought to avoid Boerne’s constitu-

tional barrier by relying on its Spending and Commerce Clause pow-

ers, rather than on its remedial powers under section 5 of the

Fourteenth Amendment as it had in RFRA. See 42 U.S.C. § 2000cc-

1(b)(1) (establishing that Section 3 of RLUIPA applies whenever the

burden at issue "is imposed in a program or activity that receives Fed-

eral financial assistance"); 42 U.S.C. § 2000cc-1(b)(2) (establishing

that section 3 of RLUIPA applies in cases in which "the substantial

burden [on religion] affects, or removal of that substantial burden

would affect, commerce with foreign nations, among the several

States, or with Indian tribes").

II.

Among its numerous constitutional challenges to RLUIPA, the

Commonwealth contends that the statute violates the Establishment

Clause. The district court held that section 3 of RLUIPA violates the

Establishment Clause because it singled out the religious exercise

rights of prisoners for special protection. The district court explained:

[P]rison inmates exist in a society of universally limited

rights, one that is required by the nature of the institution.

When Congress acts to lift the limitations on one right while

ignoring all others, it abandons a position of neutrality

towards these rights, placing its power behind one system of

belief.

8 MADISON v. RITER

Madison, 240 F. Supp. 2d at 577. The district court stated that "the

practical effect of RLUIPA on the prison system in the United States

is to grant religious and professed religious inmates a multitude of

exceptions and benefits not available to non-believers." Id. at 580. It

concluded that "RLUIPA extends far beyond regulations targeting

religion, protecting religious inmates against even generally applica-

ble and facially neutral prison regulations that have a substantial

effect on a multitude of fundamental rights." Id. at 575-76.

Because Congress had failed to compile "demonstrable evidence

that religious constitutional rights are at any greater risk of depriva-

tion in the prison system than other fundamental rights," id. at 575,

the district court found that protecting the religious exercise of prison-

ers violated the Establishment Clause. It concluded that this provision

sends "non-religious inmates a message that they are outsiders of a

privileged community," id. at 580, and it unconstitutionally advanced

religion by providing an inmate with incentives to "claim religious

rebirth and cloak himself in the protections of RLUIPA." Id.

The district court’s decision is at odds with two other circuits that

have examined this question and found that section 3 of RLUIPA

does not violate the Establishment Clause. See, e.g., Charles v. Verha-

gan, No. 02-3572, 2003 WL 22455960, at *6-7 (7th Cir. Oct. 30,

2003); Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir.

2002), cert. denied, No. 02-1655, 2003 WL 21180348 (U.S. Oct. 6,

2003); see also Williams v. Bitner, No. CV-01-2271, 2003 WL

22272302, at *4-5 (M.D. Pa. Sept. 30, 2003). Courts have also

rejected similar Establishment Clause challenges to the Religious

Freedom Restoration Act, whose religious accommodation provisions

are identical to section 3 of RLUIPA. See, e.g., In Re Young, 141 F.3d

854, 862-63 (8th Cir. 1998); Mockaitis v. Harcleroad, 104 F.3d 1522,

1530 (9th Cir. 1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir.

1996); EEOC v. Catholic. Univ. of Am., 83 F.3d 455, 470 (D.C. Cir.

1996); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996),

rev’d on other grounds, 521 U.S. 507 (1997). One circuit court, how-

ever, has relied extensively upon the district court’s decision in this

case to hold that section 3 of RLUIPA does violate the Establishment

Clause. See Cutter v. Wilkinson, No. 02-3270, 2003 WL 22513973,

at *4-9 (6th Cir. Nov. 7, 2003). It is this conclusion that we must

address with care.

MADISON v. RITER 9

This court must review de novo the constitutionality of a federal

law. See United States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001);

Farmer v. Employment Security Commission of North Carolina, 4

F.3d 1274, 1279 (4th Cir. 1993). The basic framework for Establish-

ment Clause challenges is well-settled: "[f]irst the [targeted] statute

must have a secular legislative purpose; second, its principal or pri-

mary effect must be one that neither advances nor inhibits religion;

finally, the statute must not foster an excessive government entangle-

ment with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971) (internal and quotations omitted). We address each of the three

Lemon prongs in turn.

A.

We first consider whether section 3 of RLUIPA has a legitimate

secular purpose. Lemon, 403 U.S. at 612-13. We are guided here by

the Supreme Court’s decision in Corporation of the Presiding Bishop

v. Amos, which established that Congress may accommodate the exer-

cise of faith by lifting government-imposed burdens on free exercise.

483 U.S. 327, 335 (1987). The Amos Court stated that the Establish-

ment Clause seeks to prevent government decisionmakers "from

abandoning neutrality and acting with the intent of promoting a par-

ticular point of view in religious matters." Id. But in commanding

neutrality, the Establishment Clause does not require the government

to be oblivious to the burdens that state action may impose upon reli-

gious practice and belief. Rather, there is "ample room under the

Establishment Clause for ‘benevolent neutrality which will permit

religious exercise to exist without sponsorship and without interfer-

ence.’" Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,

512 U.S. 687, 705 (1994) (quoting Amos, 483 U.S. at 334). The

Supreme Court therefore held in Amos that "it is a permissible legisla-

tive purpose to alleviate significant governmental interference with

the ability of religious organizations to define and carry out their reli-

gious missions." Amos, 483 U.S. at 335.

This alleviation of government burdens on prisoners’ religious

exercise is precisely the legitimate secular purpose that RLUIPA

seeks to advance. RLUIPA is not designed to advance a particular

religious viewpoint or even religion in general, but rather to facilitate

opportunities for inmates to engage in the free exercise of religion.

10 MADISON v. RITER

This secular goal of exempting religious exercise from regulatory bur-

dens in a neutral fashion, as distinguished from advancing religion in

any sense, is indeed permissible under the Establishment Clause. See

id.

To be sure, Congress has no constitutional duty to remove or to

mitigate the government-imposed burdens on prisoners’ religious

exercise. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-50

(1987). But the Supreme Court has held that Congress may choose to

reduce government-imposed burdens on specific fundamental rights

when it deems it appropriate. The Supreme Court "has upheld a broad

range of statutory religious accommodations against Establishment-

Clause challenges." Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir.

2001). These include statutes that allow public school students time

off during the day solely for religious worship or instruction, see

Zorach v. Clauson, 343 U.S. 306, 315 (1952), property tax exemp-

tions for religious properties used solely for religious worship, see

Walz v. Tax Commission, 397 U.S. 664, 680 (1970), and exemptions

for religious organizations from statutory prohibitions against dis-

crimination on the basis of religion, see Amos, 483 U.S. at 335. While

RLUIPA’s scope may in some ways be broader than the specific reli-

gious exceptions that the Supreme Court has previously upheld, the

central principle — that Congress may legitimately minimize govern-

ment burdens on religious exercise — remains the same. Congress

here has acted properly in embracing this secular purpose.

B.

We next consider whether section 3 of RLUIPA has the impermis-

sible effect of advancing religion. See Lemon, 403 U.S. at 612-13.

The district court found that RLUIPA impermissibly advanced reli-

gion by according special protection only to prisoners’ religious exer-

cise. The district court stated:

The singling out of religious belief as the one fundamental

right of prisoners deserving of legislative protection rejects

any notion of congressional neutrality in the passage of

RLUIPA. In the absence of any proof that religious rights

are more at risk in prison than other fundamental rights, and

with the knowledge that strict scrutiny is not required to pro-

MADISON v. RITER 11

tect the religious belief of prisoners under the Free Exercise

Clause, Congress acted only to protect religious rights. Such

an action, while labeled a neutral "accommodation," is not

in fact neutral at all, and the Court is not allowed to defer

to the mere characterization of RLUIPA as such.

Madison, 240 F. Supp. 2d at 576.

We disagree. "For a law to have forbidden ‘effects’ under Lemon,

it must be fair to say that the government itself has advanced religion

through its own activities and influence." Amos, 483 U.S. at 337

(emphasis in original). Evidence of the impermissible government

advancement of religion includes "sponsorship, financial support, and

active involvement of the sovereign in religious activity." Walz, 397

U.S. at 668. Here, however, Congress has not sponsored religion or

become actively involved in religious activity, and RLUIPA in no

way is attempting to indoctrinate prisoners in any particular belief or

to advance religion in general in the prisons. Congress has simply

lifted government burdens on religious exercise and thereby facili-

tated free exercise of religion for those who wish to practice their

faiths.

We cannot accept the theory advanced by the district court that

Congress impermissibly advances religion when it acts to lift burdens

on religious exercise yet fails to consider whether other rights are

similarly threatened. Madison, 240 F. Supp. 2d at 577; see also Cutter

v. Wilkinson, No. 02-3270, 2003 WL 22513973, at *7-8 (6th Cir.

Nov. 7, 2003). There is no requirement that legislative protections for

fundamental rights march in lockstep. The mere fact that RLUIPA

seeks to lift government burdens on a prisoner’s religious exercise

does not mean that the statute must provide commensurate protections

for other fundamental rights. Amos clearly established that "[w]here,

as here, government acts with the proper purpose of lifting a regula-

tion that burdens the exercise of religion, we see no reason to require

that the exemption comes packaged with benefits to secular entities."

Amos, 483 U.S. at 338.

The district court attempted to distinguish Amos from the present

case by stating that in Amos, Congress had found that Title VII’s pro-

hibitions on hiring or firing on the basis of religion had a much

12 MADISON v. RITER

greater effect on religious groups than on secular organizations. Madi-

son, 240 F. Supp. 2d at 577 n.9. While congressional supporters of

RLUIPA also emphasized the "egregious and unnecessary" burdens

that prison regulations impose on religious exercise, the district court

concluded that the restrictions inherent in prison life could not help

but burden other fundamental rights as well. Id. at 575. The district

court thus concluded that "[w]hen Congress acts to lift limitations on

one right while ignoring all others, it abandons neutrality towards

these rights, placing its power behind one system of belief." Id. at

577.

The Establishment Clause’s requirement of neutrality does not

mandate that when Congress relieves the burdens of regulation on one

fundamental right, that it must similarly reduce government burdens

on all other rights. Amos stands, as we have noted, for the simple

proposition that Congress can intervene to lift governmental burdens

on religious exercise. The Amos decision does not at all indicate that

Congress must examine how or if any other fundamental rights are

similarly burdened. The Amos Court in no way made its ruling turn

on a congressional finding that religious exercise was threatened more

by the application of Title VII than were other rights. It is doubtful

that such congressional findings — a compilation of evidence on how

all fundamental rights would or would not be affected by Title VII —

even existed. Regardless, such a heightened standard for congressio-

nal action was not part of the inquiry in Amos.2

Indeed, the context in which Congress was acting made it sensible

for Congress to lift only state-imposed burdens on free exercise

through RLUIPA. It was reasonable for Congress to seek to reduce

the burdens on religious exercise for prisoners without simultaneously

enhancing, say, an inmate’s First Amendment rights to access pornog-

raphy. Free exercise and other First Amendment rights may be

2

A concurrence in City of Boerne v. Flores admittedly states a view

related to that of the district court. 521 U.S. at 536-37 (Stevens, J., con-

curring) (holding that the Religious Freedom Restoration Act provides

religious groups "with a legal weapon that no atheist or agnostic can

obtain" and thus constitutes a "governmental preference for religion, as

opposed to irreligion"). This view, however, has not been adopted by the

Supreme Court.

MADISON v. RITER 13

equally burdened by prison regulations, but the Constitution itself

provides religious exercise with special safeguards. And no provision

of the Constitution even suggests that Congress cannot single out fun-

damental rights for additional protection. To attempt to read a require-

ment of symmetry of protection for fundamental liberties would not

only conflict with all binding precedent, but it would also place prison

administrators and other public officials in the untenable position of

calibrating burdens and remedies with the specter of judicial second-

guessing at every turn.

Apart from advancing religion, the district court further found that

RLUIPA may create incentives for secular prisoners to cloak secular

requests in religious garb and thus may increase the burden on state

and local officials in processing RLUIPA claims. See Madison, 240

F. Supp. 2d at 580. This may be true, but it is simply not a concern

under the Establishment Clause. Any additional burdens that RLUIPA

may impose on states and localities speak more to the wisdom of the

law and to the disincentives for states to assume their RLUIPA obli-

gations than to RLUIPA’s validity under the Establishment Clause.

We therefore conclude that section 3 of RLUIPA has the effect of lift-

ing burdens on prisoners’ religious exercise, but does not impermiss-

ibly advance religion.

C.

We further conclude that section 3 of RLUIPA does not create

excessive government entanglement with religion in violation of the

third prong of the Lemon test. See Lemon, 403 U.S. at 612-13; see

also Agostini v. Felton, 521 U.S. 203, 232-35 (1997) (suggesting that

the effects and entanglement prongs of Lemon focus on substantially

the same factors). While the statute may require some state action in

lifting state-imposed burdens on religious exercise, RLUIPA does not

require "pervasive monitoring" by public authorities. Agostini v. Fel-

ton, 521 U.S. at 233-34; see also Mayweathers v. Newland, 314 F.3d

1062, 1069 (9th Cir. 2002). RLUIPA itself minimizes the likelihood

of entanglement through its carefully crafted enforcement provisions.

For example, the statute’s broad definition of "religious exercise" to

"include any exercise of religion, whether or not compelled by, or

central to, a system of religious belief," 42 U.S.C. § 2000cc-5(7)(A),

14 MADISON v. RITER

mitigates any dangers that entanglement may result from administra-

tive review of good-faith religious belief.

D.

Section 3 of RLUIPA thus satisfies the three prongs of the Lemon

test. The opposite conclusion, we believe, would work a profound

change in the Supreme Court’s Establishment Clause jurisprudence

and in the ability of Congress to facilitate the free exercise of religion

in this country. It would throw into question a wide variety of reli-

gious accommodation laws. It could upset exemptions from compul-

sory military service for ordained ministers and divinity students

under federal law, since these exemptions are not paired with parallel

secular allowances or provisions to protect other fundamental rights

threatened by compulsory military service. See 50 U.S.C. App.

§ 456(g) (2000). It would similarly imperil Virginia’s and other

states’ recognition of a "clergy-penitent privilege," which exempts

from discovery an individual’s statements to clergy when "seeking

spiritual counsel and advice." See, e.g., Va. Code Ann. §§ 8.01-400,

19.2-271.3 (2000). Other specific religious accommodation statutes,

ranging from tax exemptions to exemptions from compulsory public

school attendance, see, e.g., Va. Code Ann. § 22.1-254(B) (2000),

would also be threatened.

Perhaps more importantly, the principle of neutrality advanced by

the district court would create a test that Congress could rarely, if

ever, meet in attempting to lift regulatory burdens on religious entities

or individuals. For example, if Congress sought to grant religious

organizations an exemption from a particularly demanding legal

requirement, then Congress might have to grant similar exemptions to

radio and TV stations or secular advocacy groups, absent congressio-

nal findings that free exercise rights were somehow more endangered

by the law than other rights. Congress would have to make determina-

tions in every instance of what fundamental rights are at risk and to

what degree they are at risk, and it would be able only to heighten

protection for fundamental rights in a symmetric fashion according to

these assessments. The byzantine complexities that such compliance

would entail would likely cripple government at all levels from pro-

viding any fundamental rights with protection above the Constitu-

tion’s minimum requirements.

MADISON v. RITER 15

III.

A.

The Commonwealth recognized at argument the problematic nature

of the trial court’s rationale, but pressed several alternative points in

support of affirmance which we feel obliged to address. It first con-

tends that RLUIPA’s mandate for the religious accommodation of

prisoners violates the Establishment Clause because it subjects third

parties to substantial burdens. The Commonwealth relies primarily on

Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710-11 (1985), for

this contention. In Caldor, a Connecticut statute required employers

to excuse employees from work on whatever day the employee desig-

nated as his Sabbath. Id. at 708. Importantly, that statute mandated the

accommodation of the religious needs of not only state employees,

but also private employees. The Supreme Court struck the statute

down on Establishment Clause grounds because it imposed significant

burdens on private employers by requiring them to lift privately-

imposed burdens on religious exercise. Id. at 708-10.

It is true that section 3 of RLUIPA also seeks to have third parties

— states accepting federal correctional funds — accommodate reli-

gious needs. But any comparison between RLUIPA and the statute in

Caldor ends there. Caldor concerned an unfunded mandate imposed

on private employers to lift privately-imposed burdens on the reli-

gious exercise of employees. Here the Commonwealth has voluntarily

committed itself to lifting government-imposed burdens on the reli-

gious exercise of publicly institutionalized persons in exchange for

federal correctional funds. These distinctions make the Common-

wealth’s reliance on Caldor unpersuasive.

B.

The Commonwealth also protests that RLUIPA’s compelling inter-

est test will bind its hands and make it nearly impossible for the Com-

monwealth to prevail if prisoners challenge burdens on their religious

exercise. The district court echoed this concern by proclaiming that

"the change that RLUIPA imposes is revolutionary, switching from

a scheme of deference to prison administrators to one of presumptive

unconstitutionality." Madison, 240 F. Supp. 2d at 575.

16 MADISON v. RITER

We do not make light of this concern. RLUIPA may impose bur-

dens on prison administrators as they act to accommodate an inmates’

right to free exercise. But RLUIPA still affords prison administrators

with flexibility to regulate prisoners’ religious practices if the Com-

monwealth "demonstrates that imposition of the burden on that person

— (1) is in furtherance of a compelling government interest; and (2)

is the least restrictive means of furthering that compelling government

interest." 42 U.S.C. § 2000cc-1(a).

Moreover, the experience of federal correctional officials in com-

plying with RLUIPA’s predecessor statute, RFRA, suggests that the

similar provisions of RLUIPA would not impose an unreasonable

burden on state or local prisons. In the cases litigated under RFRA,

federal correctional officials have continued to prevail the over-

whelming majority of the time. See Developments in the Law - Reli-

gious Practice in Prison, 115 Harv. L. Rev. 1891, 1894 (2002). This

fact suggests that RLUIPA should not hamstring the ability of the

Commonwealth’s correctional officials to ensure order and safety in

the Commonwealth’s prisons.

Admittedly, prison administrators’ litigation successes may

obscure the extent to which RLUIPA provides incentives for adminis-

trators to accommodate religious needs before litigation. But there is

little empirical evidence from the federal government’s experience

under RFRA to suggest that the Commonwealth’s compliance with

RLUIPA will prove unworkable. And if it does, the Commonwealth

at any time can decline the federal government’s correctional funding.

State legislators or administrators may weigh the burdens and benefits

of RLUIPA and reject the federal funding if the tie-in of religious

accommodation is not worth the financial benefits. In the final analy-

sis, however, practical difficulties speak more to the wisdom of the

legislation than to the precise Establishment Clause challenge under

review in this appeal.

IV.

Our society has a long history of accommodation with respect to

matters of belief and conscience. If Americans may not set their

beliefs above the law, there must be room to accommodate belief and

faith within the law. See Smith, 494 U.S. at 878-79. Regardless of the

MADISON v. RITER 17

nature of their beliefs, people must pay taxes and observe other secu-

lar laws of general applicability. See Minersville School Dist. v. Gobi-

tis, 310 U.S. 586, 594-95 (1940). However, legislative bodies have

every right to accommodate free exercise, so long as government does

not privilege any faith, belief, or religious viewpoint in particular.

Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.

687, 696-97 (1994). Section 3 of RLUIPA fits comfortably within this

broad tradition.

We thus cannot find that section 3 of RLUIPA creates an Establish-

ment Clause violation. We address here only the Establishment

Clause challenge to RLUIPA. The Commonwealth has challenged the

statute on a variety of other grounds, namely that it exceeds Con-

gress’s authority under the Spending and Commerce Clauses and that

it runs afoul of the Tenth and Eleventh Amendments. We do not

address these issues in this interlocutory appeal because the district

court has not yet had sufficient opportunity to consider them. The

Commonwealth also argues that it retains the exclusive authority to

regulate in a zone of discretion between what the Establishment

Clause prohibits and what the Free Exercise Clause requires.

Although couched in religious terms, this is really a variant of the

Commonwealth’s many federalism-based or residual power conten-

tions, which we have left to the district court on remand.

The judgment is therefore reversed, and the case is remanded to the

district court for further proceedings.

REVERSED AND REMANDED