Petition for Writ of Certiorari — Cutter v. Wilkinson
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JON B. CUTTER; J. LEE HAMPTON,
Petitioners, Supreme Coun, i
FILED
Vv.
REGINALD WILKINSON, et al., APR 19 2004
Respondents. | OFFICE OF THE CLERK |
JOHN MILLER; DARRYL BLANKENSHIP,
Petitioners,
Vv
REGINALD WILKINSON, et al.,
Respondents.
JOHN W. GERHARDT,
Petitioner,
Vv.
ALAN LAZAROFF, WARDEN, et al.,
e Respondents.
On Petition For Writ Of Certiorari To The United States Court of Appeals
For The Sixth Circuit
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MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
. +
The Petitioners ask leave to file their Petition for a Writ of Certiorari without
prepayment of costs and to proceed in forma pauperis.
Petitioners have previously been granted leave to proceed in forma pauperis in the
United States District Court for the Southern District of Ohio. In addition, the counsel
who represent them in this Court have been appointed i in the District Court pursuant to
28 U.S. 1915(e)(1). |
- . 4 ew
Benson A. Wolman David Goldberger /
Susan B. Gellman Counsel of Record
Wolman, Genshaft & Gellman The Ohio State University
341 South Third Street, Suite 301 College of Law, Clinical Programs
Columbus, Ohio 43215-5463 55 West Twelfth Avenue
(614) 280-1000 Columbus, Ohio 43210
(614) 292-1536
Counsel for Petitioners
Jn The
Supreme Court of the Anited States
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JON B. CUTTER; J. LEE HAMPTON,
Petitioners,
Vv.
REGINALD WILKINSON, et al.,
Respondents.
JOHN MILLER; DARRYL BLANKENSHIP,
Petitioners,
v.
REGINALD WILKINSON, et al.,
Respondents.
JOHN W. GERHARDT,
Petitioner,
Vv.
ALAN LAZAROFF, WARDEN, et al.,
e Respondents.
On Petition For Writ Of Certiorari
To The United States Court of Appeals
For The Sixth Circuit
+
PETITION FOR WRIT OF CERTIORARI
>
David Goldberger
Counsel of Record
The Ohio State University College of Law Clinical Programs
55 West Twelfth Avenue
Columbus, Ohio 43210-1391
(614) 292-1536
Benson A. Wolman
Susan B. Gellman
Wolman, Genshaft & Gellman
341 South Third Street, Suite 301
Columbus, Ohio 43215-5463
(614) 280-1000
RECEIVED
APR 19 2004
OFFICE OF 7,
, EC
SUPREME couar ys
Counsel for Petitioners
A
QUESTION PRESENTED
Whether Congress violated the Establishment Clause by enacting the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 through § 2000cc-5,
which requires state officials to lift unnecessary governmental burdens imposed on the
religious exercise of institutionalized persons under their control.
PARTIES TO THE CONSOLIDATED PROCEEDINGS
The Petitioners are inmates of the Ohio Department of Rehabilitation and
Correction. They are lon Cutter, Lee Hampton, John W. Gerhardt, John Miller, and
Darryl Blankenship. John Miller and Darryl] Blankenship bring this action individually
and on behalf of all other members of the Asatru Religion who are similarly situated.
The Respondents are Reginald Wilkinson, Director of the Ohio Department of
Rehabilitation and Correction, Alan Lazroff, Warden of the Ohio Department of
Rehabilitation and Correction and other named officials of the Ohio Department of
Rehabilitation and Correction.
TABLE OF CONTENTS
rt ee I
PARTIES TO THE CONSOLIDATED PROCEEDINGS .................02---005-- ii
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EE. RO Pe eer Pe rer rr 1
JURISDICTION .......... Rhee akseedie Rides hake taskedeiaee dace ranked 1
CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE IN THIS CASE ....2
ares seed bia wee badbneees cbadssedensisenseeta 2
REASONS FOR THE GRANTING OF THE PETITION ................600 0 eee eens 6
A. The Decision in the Court Below Creates a Split Between the Circuits ....... 6
B. The Court of Appeals’ Ruling that RLUIPA is Unconstitutional Undermines
the Authority of All Legislatures to Enact Laws Accommodating Religious
SE CEN duNu ear ehGhss oat Whsicke SES abe aes 6ebnn Wenddscipendeacecenn’ 8
J PE FEAT Age te et TE SAD U heen eRswashancesSarivcdinaaneesenecs connect 17
TABLE OF AUTHORITIES
CASES
Board of Education v. Kiryas Joel Village School District v. Grumet,
rt ef) ere rrrerrrrereeer rere rr ii ttre 7,11,15
Goldman v. Weinberger, 475 U.S. 503 (1986)... 6. ene eee eens 15
Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970) .........-..00055 11
Charles v. Verhagen, 348 F.3d 601 (7 Cir. 2003) 2... 2... 6c cece eee eee eens 3, 6-8
Corporation of the Presiding Bishop of the
Church of Jesus Chnst of Latter-Day Saints v. Amos,
Gh BE I 6 hc bck cakes ceeb usec cnectctéeencadns sacesneunesss passim
Cutter v. Wilkinson, 349 F.3d 257 (6™ Cir. 2003) ......... 0.2.0 e cece eee ees 1, 7, 10, 12, 13
Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990) ....... 11, 16
Flagner v. Wilkinson, 241 F.3d 475 (6" Cir. 2001) ... 2... 0.20 e cece eee eee eee eens 14
Gerhardt v. Lazaroff, 221 F Supp.2d 827 (S.D.Ohio 2002) ..... avinundssienelaneenes 1,4
Pisenciniens ©. TIDE. GID UBD GED oc cece sccvecccccsccesccessccvcsesstuseeases 13
Jones v. Butz, 374 F Supp. 1284 (S.D.N.Y. 1974) ..... 2.66. eee eee eens 16
Jones v. North Carolina Prisoners Union, 433 U.S. 119 (1977) .... 2... 2 eee eee 13
Kilaab Al Ghasinyah (Kahn) v. Dept. of Corrections,
250 F Supp. 24 1006 (ED. Wis. BOGS)... 2. ccc ccc ccc sccccenccccccccscsess 8
Madison v. Riter, 355 F.3d 310 (4" Cir. 2003) cert. petition pending sub nom. |
Bass v. Madison, No. 03-1404 (filed April 6, 2004). ...........--... 2-0 sees passim
Mayweathers v. Newland, 314 F.3d 1062 (9 Cir. 2002) ..........0.. 00 e eee eee 3, 6,7
O’Lone v. Estate of Shabbaz, 482 U.S. 342 (1987) ... 00... cc eee eee ete eee 10
Vesstaar ©. Safa, GIB UG FO CITE) on os ccc cccccvsseccoccccpnnscvesavasevvens 10, 13
iv
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CONSTITUTIONAL PROVISIONS
Se Ry GUNN 6X pian 4.4.s Fie Was neh ee 600s 0060s neds Roe teen eesene une passim
PE. GO BOD ROGGE SD 6 oes ince iec cs ceescssccedecesseses secanstesseussenvews 5
STATUTES
Ps CED ss peivscndececkesenuWaun acne benehnddkeoseeeanaseeniecameenes 2
es ED 6.6 ob ébnid.cncduiugaddpdinscansdeicenathuesssnaweasen 7
a SN ce his 6 6c ecb ec cee ededesiutyskieinsiécdbeessenendatessen passim
See SNE 6b obo cNeccccescevsnecsvceceseusbstecsederveetsseereRsKenl 16
OPE iis cee URV As as be cdnee eases pceksiibaabereaeeeslteemne 16
OTHER AUTHORITIES
DUPAGE PEON hs ohn ctighaen sr0dseissassctvasclesissdevistauern 13
SG, FE, Sear eey SPCC & 600 vase lodsdcaskcctndic, (6s eneweeeewssesel 9
Dept. of Air Force, Reg. 35-10, § 2- 28(b)(2) (April 1989) .. 0.0... eee ee ee eee eee 15
Encyclopedia of American Religions, 6" edition, Michigan, 1999 .................... 3
Merriam-Webster’s Encyclopedia of World Religions, Springfield, Mass., 1999 ....... 4
“Frequently Asked Questions about Asatru,” available at
SEF [WPA on vv ion inn e's cece ccvcecovaveucshesnecnqubann 4
v
PETITION FOR A WRIT OF CERTIORARI
Petitioner inmates, who have brought suit against officials of the Ohio
Department ot Rehabilitation and Correction, respectfully request that this Court grant
their Petition for Writ of Certiorari to review the judgment of the Sixth Circuit Court of
Appeals holding that the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. 2000cc-1, violates the Establishment Clause of the First Amendment.
OPINIONS BELOW
The opinion of the Court of Appeals is reported as Cutter v. Wilkinson, 349 F.3d
257 (6 Cir. 2003), rehearing denied and rehearing en banc denied, (March 3, 2004). It is
reproduced in the Appendix at App. A. The opinion of the District Court and the report
and recommendation of the Magistrate Judge are combined in Gerhardt v. Lazaroff, 221
F Supp.2d 827 (S.D.Ohio 2002), which is reproduced in the Appendix at App. B.
JURISDICTION
On February 26, 2002, the District Court denied Respondents’ partial motion to
dismiss, ruling that the Religious Land Use and Institutionalized Persons Act was
constitutional on its face. On August 4, 2003, the District Court certified its ruling for
immediate appeal. The Court of Appeals granted leave to appeal on September 23, 2003.
The Court of Appeals entered its judgment holding that RLUIPA violates the
Establishment Clause on November 7, 2003. A petition for rehearing and rehearing en
banc was denied on March 3, 2004. This Court has jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE IN THIS CASE
1. The Establishment Clause of the First Amendment provides that: “Congress shall
make no law respecting an establishment of religion. . . .”
2. The provisions of the Religious Land Use and Institutionalized Persons Act that are
relevant to this petition are in 42 U.S.C. § 2000ce-1:
(a) General rule. No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution as defined in
section 2 of the Civil Rights of Institutionalized Persons Act, even if the burden
results from a rule of general applicability, unless the government demonstrates
that iraposition of the burden on that person -
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
(b) Scope of application. This section applies in any case in which -
(1) the substantial burden is imposed in a program or activity that receives
federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several States, or
with Indian Tribes.
STATEMENT OF THE CASE
Petitioners seek review of the ruling of the Sixth Circuit Court of Appeals
invalidating the provisions of the Religious Land Use and Institutionalized Persons Act,
42 U.S.C. § 2000cc-1. The specific language of § 2000cc-1 that the Sixth Circuit declared
unconstitutional provides that “[n]o government shall impose a substantial burden on
2
the religious exercise of a person residing in or confined to an institution” unless the =_-—
burden “is in furtherance of a compelling governmental interest” and “is the least
restrictive means of furthering that” interest.’
Petitioners seek review of the Sixth Circuit's ruling because it is in conflict with
the rulings of three other circuits that have held RLUIPA does not violate the
Establishment Clause. See Madison v. Riter, 355 F.3d 310 (4" Cir. 2003) cert. petition
pending sub nom. Bass v. Madison, No. 03-1404 (filed April 6, 2004); Charles v. Verhagen,
348 F.3d 601 (7® Cir. 2003); and Mayweathers v. Newland, 314 F.3d 1062 (9 Cir. 2002), cert.
denied 124 S.Ct. 66 (2003). It is also in conflict with the authority of Congress and other
legislative bodies to accommodate religion by lifting needless burdens on religious
exercise imposed by state and federal officials. Corporation of the Presiding Bishop of the
Church of Jesus Chnst of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).
The petition arises out of three separate cases brought by inmates of the Ohio
Department of Rehabilitation and Corrections (ODRC) alleging that ODRC officials are
imposing burdens on their religious exercise that would violate RLUIPA and would not
be imposed if Petitioners were members of mainstream religions. Petitioner Lee
Hampton is a member of the Wicca religion which “is polytheistic, finding its pantheon
in various European pre-Christian nature religions.”* Petitioners John Miller and Dary!
Blankenship are representatives of the class comprised of inmate members of the Asatru
‘RLUIPA also contains provisions governing burdens imposed on religious exercise by
land use regulations. Those provisions are not at issue in this case.
*See Encyclopedia of American Religions, 6" edition, Michigan, 1999, p. 167.
3
STM oe
religion, a polvtheistic religion that espouses the existence of an “underlving, all-
pervading divine energy which is generally hidden from us and which is beyond our
immediate understanding.”’ Petitioner Jon Cutter, a former ODRC inmate, is a member
of the Satanist religion which formed as a protest against Judeo-Christian spiritual
hegemony..* John Gerhardt, a former ODRC inmate, is an ordained, licensed Ohio
minister in the Church of Jesus Christ Christian, also known as the Christian Identity
Church.’ The Respondents are ODRC officials. In the District Court, Respondents
conceded that the Petitioners’ religions are bona fide and that Petitioners genuinely hold
their religious beliefs. Gerhardt, supra, 227 F Supp.2d at 833.
All of the Petitioners make the common claim that they are arbitrarily and
discriminatorily being denied access to religious literature by the Respondents.
Petitioners Miller and Blankenship also allege that they are being denied access to
religious medallions and religious ceremonial items substantially identical to those that
inmate members of mainstream religions are allowed to have. Petitioners Miller,
Blankenship, and Gerhardt further allege that they are denied opportunities for group
worship that are granted to adherents of mainstream religions. In addition, the record
contains evidence indicative of hostility of Ohio corrections offi.als toward
>See “Frequently Asked Questions about Asatru,” available at
http://www.runestone.org/faq.html last viewed on April 8, 2004.
*Merriam-Webster’s Encyclopedia of World Religions, Springfield, Mass., 1999, p. 971.
Mr. Cutter is no longer incarcerated at ODRC.
*Plaintiff-Appellees’ brief filed in the Sixth Circuit, p. 7.
4 ‘
accommodation of religious exercise of non-mainstream religions in general. See, infra, p.
14.
Each of the Petitioners’ cases was filed prior to the effective date of RLUIPA and
relied heavily on the claims that the burdens imposed on their religious exercise violated
the Free Exercise Clause and the Equal Protection Clause. Following September 22, 2000,
RLUIPA’s effective date, the complaint in each of Petitioners’ cases was amended to
include a claim for relief based on the violation of RLUIPA. Pursuant to an agreement
between the parties, the cases were consolidated before a single district judge for the sole
purpose of deciding Respondents’ partial motion to dismiss which argued, among other
things, that RLUIPA was unconstitutional because it violated the Establishment Clause,
exceeded Congress’ spending authority, and exceeded its power to legislate pursuant to
the Commerce Clause. Because the Respondents challenged the constitutionality of a
statute enacted bv Congress, the Attorney General of the United States was informed of
the proceedings and intervened as a plaintiff for the sole purpose of the defending the
statute.
The Respondents’ challenge to RLUIPA’s constitutionality was initially
considered by Magistrate Judge Terence P. Kemp, who filed a Report and
Recommendation on August 27, 2001, concluding that RLUIPA was constitutional
because it was within Congress’ spending power and did not violate the Establishment
Clause. (Appendix B). On February 25, 2002, District Judge Edmund A. Sargus, Jr.
issued an opinion adopting the Magistrate Judge’s Report and Recommendation and
upholding the constitutionality of RLUIPA. (Appendix B). The District Court's decision
was certified for appeal on August 4, 2003, and the Sixth Circuit granted leave for the
parties to proceed with an interlocutory appeal on September 23, 2003.
On November 7, 2003, after considering briefs and argument, the Sixth Circuit
held that RLUIPA was unconstitutional because it violated the Establishment Clause. It
subsequently denied petitions for rehearing en banc filed by the Petitioners and by the
United States.
REASONS FOR THE GRANTING OF THE PETITION
A. The Decision in the Court Below Creates a Split Between the Circuits
The Sixth Circuit's decision creates a direct conflict with the decisions of three
other circuits upholding the constitutionality of RLUIPA and is in square conflict with
applicable precedents of this Court. Prior to the Sixth Circuit's ruling, Mayweathers v.
Newland, 314 F.3d 601 (9" Cir. 2002) upheld RLUIPA’s constitutionality under Congress’
spending power and the Establishment Clause in a case brought by a Muslim inmate
alleging that prison rules penalizing attendance of Friday afternoon services violated
RLUIPA. Charles v. Verhagen, 348 F.3d 601 (7 Cir. 2003) upheld RLUIPA against an
Establishment Clause challenge in a case brought by Muslim inmate because prison
officials enacted rules prohibiting his possession of fragrant Islamic prayer oil to be
spread on the body as part of a religious exercise even though other inmates are
permitted to possess and use fragrant body oils and lotions for non-religious purposes.
Approximately a month after the Sixth Circuit's decision in this case, Madison v. Riter,
355 F.3d 310 (4" Cir. 2003) upheld the constitutionality of RLUIPA against an
Establishment Clause attack in a case brought by a Hebrew Israelite inmate, whose
religion honors, but does not worship, Jesus Christ. Prison officials denied the inmate
the kosher diet required by his religious beliefs even though the same diet is available to
Jews who observe Jewish dietary laws.
Madison, Charles, and Mayweathers all correctly concluded -- with appropriate
citations to Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327 (1987), Board of Education v. Kiryas Joel Village School District v.
Grumet, 512 U.S. 687 (1994), and other relevant decisions of this Court - that the
challenges to RLUIPA were governed by the settled rule that a legislative
accommodation lifting a substantial government-imposed burden on religious exercise
does not violate the Establishment Clause. Madison, 355 F.3d at 317; Charles, 348 F.3d at
610-611; Mayweatiers, 313 F.3d at 1068-1069.
The Sixth Circuit's opinion in this case candidly conceded that the scope of the
split between the circuits is even more serious than indicated by the difference between
its opinion in this case and the opinions of the three other circuits. It observed that, in
addition to court of appeals decisions rejecting Establishment Clause attacks on RLUIPA,
“tive circuits, including the Seventh and the Ninth, have concluded that the identical
language in RFRA [the Religious Freedom Restoration Act of 1993] does not violate the
Establishment Clause.” 349 F.3d 261-262. Moreover, the two district court opinions, that
or
the Sixth Circuit relied on as its authoritv, have been overruled or reversed. See Madison
v. Riter, 240 F.Supp.2d 566 (W.D.Va. 2003), reversed by Madison v. Riter, 355 F.3d 310, (4"
Cir. 2003) (cert. pending, No. 1404.); Kilaab Al Ghasiiyah (Kalin) v. Dept. of Corrections, 250
F.Supp. 2d 1016 (E.D. Wis. 2003), overruled by Charles v. Verhagen, 348 F.3d 601 (7™ Cir.
Oct 30, 2003).
In short, the decision of the Sixth Circuit Court of Appeals creates a serious ~
circuit split.
—
B. The Court of Appeals’ Ruling that RLUIPA is Unconstitutional Undermines the
Authority of All Legislatures to Enact Laws Accommodating Religious Exercise
The decision of the Sixth Circuit in this case provided an erroneous answer to the
important question of whether Congress’ enactment of RLUIPA to lift unjustified,
government-imposed burdens on religious exercise violates the Establishment Clause.
The three other circuits that have also addressed this question have correctly ruled that
RLUIPA did not violate ‘he Establishment Clause. Therefore, this Petition should be
granted to resolve the split between the circuits and make clear that Congress and other
legislative branches of government do not violate the Establishment Clause by enacting
RLUIPA and similar laws.
As previously explained, the language of RLUIPA that is at the heart of this
appeal provides that “[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to [a state] institution” unless the
“imposition of the burden on that person . . . (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
8
governmental interest.” 42 U.S.C. § 2000cc-1(a).
Congress enacted this statute for the purpose of preventing the imposition of
unjustified burdens on, and widespread discrimination against, the religious exercise of
prisoners and other institutionalized individuals. See the statements of co-sponsor
Senators Hatch and Kennedy, 146 Cong. Rec. $7774-01, S7775 (2000). As already
indicated in the statement of the case, the record in this case and the facts of the other
Court of Appeals decision upholding the constitutionality of RLUIPA demonstrate that
Congress’ concern about arbitrary and discriminatory official treatment of the religious
exercise of institutionalized persons is no chimera.
The Sixth Circuit’s primary error was its failure to recognize that RLUIPA is
constitutional because it is completely consistent with Corporation of the Presiding Bishop
of the Church of Jesus Christ of Latter-Day Saints v. Amos, supra. In Amos, this Court held
that Congress does not establish religion by enacting a wholesale exemption which lifts a
governmentally-imposed burden on religious organizations in order to accommodate
their religious exercise. The burden in Amos was imposed in the form of a federal statute
prohibiting religious discrimination in employment. The burden was lifted by inclusion
of a broad statutory exemption that excused religious organizations from having to
comply with the anti-employment discrimination law. According to the Amos opinion,
“it is a permissible legislative purpose to alleviate significant government interference
with the ability of religious organizations to carry out their religious missions.” 483 U.S.
at 335.
The Court of Appeals misapplied Amos in several wavs. First, the Court stated as
a premise that the Free Exercise rights of prisoners are ordinarily limited by the relaxed
standard of Turner v. Safley, 482 U.S. 78 (1987), and O’Lone v. Estate of Shabbaz, 482 US.
342 (1987). 349 F.3d at 263-264. Then, based on this premise, it mistakenly concluded
that a prison regulation that complies with Turner and O’Lone imposes no burden on
religious exercise that RLUIPA can lift. Therefore, in its mistaken view, a statutory
accommodation that provides more protection for inmates’ religious exercise than do
Turner and O’Lone violates the Establishment Clause. Id. In other words, according to
the Sixth Circuit, the only government burden that Congress can lawfully accommodate
is one that creates a violation of the Establishment Clause and, presumably, the Free
Exercise Clause. /d.
However, this Court has never held that a legislative accommodation of religion
is unconstitutional merely because it exceeds the deferential Esta’slishment Clause and
Free Exercise Clause standards applicable to prisoners. Indeed, in Madison v. Riter, the
Fourth Circuit explicitly concluded that such an accommodation was permissible.
There, Judge Wilkinson observed that “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, supra at 315, n. 1.
Judge Wilkinson's observation is clearly correct because this Court has
consistently invited legislatures to accommodate religion without regard to whether the
legislative accommodation mirrors pre-existing Establishment Clause and Free Exercise
10
Clause standards. In Board of Education of Ktryas Joel Village School Distnet v. Gnumet, 312
U.S. 687 (1994), this Court stated:
Our cases leave no doubt that in commanding neutrality the Religion Clauses do
not require the government to be oblivious to impositions that legitimate
exercises of state power may place on religious belief and practice. Rather there is
“ample room under the Establishment Clause for ‘benevolent neutrality which
will permit religious exercise to exist without sponsorship and without
interference. .. ."”
512 US. at 705, quoting Amos, supra at 334. In a concurring opinion, Justice Kennedy
observed that “’[t]he limits of permissible state accommodation to religion are by no
means co-extensive with the non-interference mandated by the Free Exercise Clause.”
512 US. at 724, quoting Walz v. Tax Commission of the City of New York, 397 U.S. 664, 673
(1970).
Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990),
explicitly invited legislative accommodation of religious exercise by means of statutes
enacted to lift constitutionally permissible, but nonetheless onerous, government
burdens on religious exercise.
Just as a society that believes in the negative protection accorded to the press by ©
the First Amendment is likely to enact laws that affirmatively foster the
dissemination of the printed word, so also a society that believes in the negative
protection accorded to religious belief can be expected to be solicitous of that
value in its legislation as well.
494 U.S. at 890. Congress accepted this invitation when it enacted RLUIPA.
The Court of Appeals also erroneously concluded that RLUIPA had the improper
effect of establishing religion because it accommodated religious exercise without
simultaneously accommodating all other fundamental constitutional rights. 349 F.3d at
11
264-267. In its view, such an accommodation violates the Establishment Clause because
it carries a message of endorsement of religion and because Congress did not support
RLUIPA with actual proof that religious rights were more at risk in a prison setting than
other fundamental rights.
The principal authority it cites for the foregoing proposition is the district court
decision in Madison v. Riter, 240 F Supp.2d 566 (W.D.Va. 2003). However, following the
Sixth Circuit's heavy reliance on that decision, it was reversed on appeal by the Fourth
Circuit. Madison v. Riter, supra. The reversal was based in part on the admonition in
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos,
supra, that “[w]here, as here, government acts with the proper purpose of lifting a
regulation that burdens the exercise of religion, we see no reason to require that the
exemption comes packaged with benefits to secular entities.” Madison v. Riter, 355 F.3d at
318, citing Amos, 483 U.S. at 338. The Fourth Circuit explained:
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 (6" Cir. Nov. 7, 2003). There is no requirement that legislative protections for
fundamental righ» 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.
Madison, supra, at 318. (A petition for certiorari from the Fourth Circuit's decision in
Madison is currently pending before this Court sub nom. Bass v. Madison, supra).
The Sixth Circuit’s insistence that RLUIPA advances religion by accommodating
religious exercise without simultaneously accommodating all other constitutional rights
12
misses the entire point for the enactment of RLUIPA. It is clear that RLUIPA was
enacted for the express purpose of preventing ecbitrary and discriminatory treatment of
religious exercise; this is indicated in the Congressional Record. See, for example the
statement of Representative Canady at 146 Cong. Rec. H1791. Congress’ recognition of
the need for RLUIPA is also supported by the arbitrary and discrimisete:y treatment of
the Petitioners’ non-mainstream religions as well as the facts of the four Court of
Appeals cases that have already addressed RLUIPA’s constitutionality. See, supra at pp.
6-7.
What the Sixth Circuit failed to understand is that selective accommodation of
fundamental rights is the norm for prison inmates. For example, an inmate can marry
while in prison. Turner v. Safley, supra. Yet, the same prisoner cannot join a prisoners’
union. Jones v. North Carolina Prisoners Union, 433 U.S. 119 (1977). Similarly, an inmate
can send confidential letters to his attorney, but does not have a right to a private
interview with a member of the press. Houchins v. KQED, 438 U.S.1 (1978). Of all
fundamental rights, accommodation of religion is most suitable in the prison context. It
is for this reason that the State of Ohio has long employed full-time prison chaplains to
assure inmates of mainstream religions will have access to clergy.
The Sixth Circuit also erroneously concluded that the Establishment Clause had
been violated because Congress enacted RLUIPA without establishing a specific factual
basis to support its conclusion that religious rights were more at risk than other rights in
a prison setting. 349 F.3d at 265. It cited no authority for this contention other than the
13
9 OPP Pa ER. ae
district court decision in Madison, supra, which was subsequently reversed . Nor could it
cite such authority. None exists.
Even if there were a need for evidence that religious rights are at special risk in
order to justify RLUIPA, there is already evidence of ODRC hostility towards non-
mainstream religions in the record of this case that is consistent with Congress’ view that
prison officials are often intolerant of such religions. During discovery, ODRC
defendants produced an unusually candid inter-office memorandum from an Ohio
prison chaplain written in response to an inmate request for religious accommodation.
It stated, “I truly regret that the House of Yahweh is not a mainstream religion because
that would help us come to a more agreeable resolution of some of your requests.” ®.
No. 179; Inter-office Communication, Aug. 6, 1996; Plaintiffs’ Reply to Partial Motion to
Dismiss. App. G.)
Equally telling is the brief filed in the Respondents’ appeal to the Sixth Circuit in
this case. It argued that Petitioners are not entitled to accommodation of their religious
exercise because their beliefs are so offensive that public funds spent to accommodate
their beliefs will result in criticism of Ohio corrections officials for “such patently
offensive use of public resources.” (Defendant-Appellants’ Opening Brief on Appeal, p.
60). Also, see Flagner v. Wilkinson, 241 F.3d 475 (6™ Cir. 2001), which held that a
complaint alleging that ODRC officials forcibly removed the beard of an inmate who
was a member of a non-mainstream branch of Judaism stated a claim for injunctive
relief. The holding was premised on the fact that the beard was an element of the
14
inmate's religious exercise.
A grant of this Petition for Certiorari is particularly important because the Sixth
Circuit's holding and rationale are so sweeping that, if its opinion stands, any court that
applies it will be required to strike down all accommodations that do not remedy full-
fledged violations of the Free Exercise or Establishment Clauses. The opinion will
require invalidation of state and federal statutes and regulations modeled on the
religious accommodation previously approved by this Court's decision in Amos. For
example, the United States Air Force would be prohibited from authorizing the wearing
of religious head coverings by Air Force personnel while in uniform because the
accommodation is not required by the Free Exercise Clause and no such accommodation
is granted to non-religious, expressive apparel. Compare Goldman v. Weinberger, 475 U.S.
503 (1986) (holding that Free Exercise Clause does not bar disciplining of uniformed,
Jewish Air Force officer for wearing a varmulke) with subsequently promulgated Dept.
of Air Force, Reg. 35-10, © 2- 28(b)(2) (April 1989) (authorizing the wearing of religious
head covering while in uniform).° Public school authorities would be forbidden from
implementing the released-time programs permitting public school children to attend
periodic, off-site, religious instruction approved in Zorach v. Clausen, 343 U.S. 306 (1952),
because no corresponding leave is granted to children wishing to receive off-site, secular
instruction. States would be forbidden from enacting laws accommodating the
*This accommodation was cited with approval by Justice Kennedy in Board of Education
of Kirvas Joel Village School Dist. v. Grumet, 512 U.S. 687, 726-727 (1994) (Kennedy, J.,
concurring).
15
a ee ree.
sacramental use of pevote by American Indians notwithstanding Employment Division,
Dept. of Human Resources v. Smith, 494 U.S. at 890, because those accommodations are not
extended to other drugs, or to peyote use as a political protest of existing drug laws.
For the same reasons, it would be impermissible for any departments of
corrections to hire prison chaplains ordained as ministers in mainstream religions to
administer and provide for the religious needs of prison inmates. It would also be
impermissible for states to exempt ordained ministers from the general rule that no one
shall render services or engage in the practice of psychology without a license. See
O.R.C. § 4732.22(F). And, it would be impermissible for states to exempt religious
groups from general prohibitions against the inhumane slaughtering of animals where
the prohibition would hinder the religious freedom of that group. See O.R.C. 945.01-
945.02. But see Jones v. Butz, 374 F Supp. 1284 (S.D.N.Y. 1974), aff'd 419 U.S. 806 (1974)
(holding that federal statute exempting religious, ritual slaughter from animal slaughter
regulations does not violate the Establishment Clause).
The foregoing examples underscore the sweeping limitations that will be imposed
on legislative efforts to accommodate religious exercise, should this Court allow the
Sixth Circuit's decision to stand.
16
CONCLUSION
For the foregoing reasons, a writ of certiorari should be granted.
Respectfully submitted,
Counsel of Record
The Ohio State University
College of Law, Clinical Programs
55 West Twelfth Avenue
Columbus, Ohio 43210
(614) 292-6821
Benson A. Wolman
Susan B. Gellman
Wolman, Genshaft & Gellman
341 South Third Street, Suite 301
Columbus, Ohio 43215-5463
(614) 280-1000
Counsel for Petitioners
17
LEXSEE 349 F.3D 257
JON B. CUTTER; J. LEE HAMPTON, Plaintiffs-Appellees, UNITED STATES OF
AMERICA, Intervenor-
v. REGINALD WILKINSON; DAVID
SCHWARTZ; NICHOLAS G. MENEDEZ; L. C. COVAL; K. L. BROWN;
GEORGE D. ALEXANDER; DIANNE WALKER; JIM ERWIN; RON CARNEIN;
RUDY PRINGLE; WALTER LOWERY, Defendants-Appellants. JOHN MILLER,
et al., Plaintiffs-Appellees, UNITED STATES OF AMERICA, Intervenor-Appellee,
v. REGINALD WILKINSON; DAVID SCHWARTZ; TERRY COLLINS;
CHERYL HART; CHARLES R. GRIFFIN; CHARLES GRIFFIN, CHAPLAIN,
DEFENDANTS-APPELLANTS. JOHN W. GERHARDT, Plaintiff-Appellee,
UNITED STATES OF AMERICA, Intervenor-Appellee, v. ALAN LAZAROFF,
WARDEN; KENNETH BYERS; DON WILSON; MARY HENDERSON; SHERRY
WILLIAMSON; KRISTINA HACKETT; STEVEN WEINGART; RON CLIFTON;
ROBERT ENGLUND; CHARLES CONRAD; STACHA DOTY; JACK TAYLOR;
WILLIAM BLANEY; CAROL MARTIN; JUNE COLEMAN; DAVE MORRIS;
VANCE YORK; SUSAN COOLIE; STEPHANIE WALKER; RACHEL
HETTINGER; KENNETH E. MCDONALD, Defendants-Appellants.
Nos. 02-3270/02-3299/02-3301
UNITED STATES COURT OF AP? ALS FOR THE SIXTH CIRCUIT
349 F.3d 257; 2003 U.S. App. LEXIS 22840; 2003 FED App. 0397P (6th Cir.)
September 10, 2003, Argued
November 7, 2003, Decided
November 7, 2003, Filed
SUBSEQUENT HISTORY: Counsel Corrected De-
cember 15, 2003. Rehearing denied by Cutter v. Wilkin-
son, 2004 U.S. App. LEXIS 4294 (6th Cir., Mar. 3, 2004)
US Supreme Court certiorari granted by, Motion granted
by Cutter v. Wilkinson, 160 L. Ed. 2d 221, 125 S. Ct.
308, 2004 U.S. LEXIS 6695 {U.S., 2004)
Reversed by, Remanded by Cutter v. Wilkinson, 2005
U.S. LEXIS 4346 (U.S., May 31, 2005)
PRIOR HISTORY: [**1] Appeal from the United
States District Court for the Southern District of Ohio at
Columbus. No. 97-00382; 98-00275; 95-00517. James
L. Graham, Edmund A. Sargus, Jr., District Judges.
DISPOSITION: Reversed and remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff prisoners con-
tended that defendant corrections officials violated the
Religious Land Use and Institvtionalized Persons Act
(RLUIPA), 42 U.S.C.S. § 2000cc to 2000cc-5. The offi-
cials filed motions to dismiss the RLUIPA claims, chal-
lenging the constitutionality of 42 U.S.C.S. § 2000cc-1,
which were denied by the United States District Court
for the Southern District of Ohio at Columbus. The offi-
cials sought interlocutory appeal.
OVERVIEW: The court reasoned that the RLUIPA, as
applied to institutionalized persons--specifically, 42
U.S.C.S. § 2000cc-1--violated the Establishment Clause
because it had the primary effect of advancing religion.
The court noted that RLUIPA's enhanced protection for
religious rights might not have violated the First
Amendment requirement of neutrality if Congress had
enacted RLUIPA based upon evidence that religious
rights were at greater risk of deprivation in the prison
system than other fundamental rights. Furthermore the
primary effect of RLUIPA was not simply to accommo-
date the exercise of religion by individual prisoners, but
to advance religion generally by giving religious prison-
ers rights superior to those of nonreligious prisoners. The
court noted that in addition to its message of endorse-
ment, RLUIPA also had the effect of encouraging pris-
oners to become religious in order to enjoy greater rights.
Page 2
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
The court rejected the reasoning of previous cases up-
holding RLUIPA because RLUIPA did not address a
particular burden on religious exercise, but instead ex-
empted religious prisoners from many generally applica-
ble prison reguiations.
OUTCOME: The district court's denial of the correc-
tions officials’ motions to dismiss was reverse and the
case was remanded for further proceedings.
LexisNexis(R) Headnotes
Constitutional Law > Civil Rights Enforcement > Pris-
oners > Freedom of
[HN1] The Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.CS. § 2000cc to
2000cc-5, defines “religious exercise" as any exercise of
religion, whether or not compelled by, or central to, a
system of religious belief. 42 USCS. § 2000cc-
5(7A).
Constitutional Law > Civil Rights Enforcement > Pris-
oners > Freedom of Religion
[HN2] The requirement of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. §
2000ce to 2000cc-5, requiring strict scrutiny stands in
sharp contrast to the United States Supreme Court's pre-
vious decisions, which have held that the courts should
apply a rational-relationship review to restrictions upon
inmates’ fundamental nghts.
Constitutional Law > Civil Rights Enforcement > Pris-
oners > Freedom of Religion
Real & Personal Property Law > Zoning & Land Use >
Statutory & Equitable Limits
[HN3] The Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 US.CS. § 2000cc to
2000cc-5, creates a private right of action. Any person
may assert a violation of chapter 21C, 42 US.CS. §
2000cc et seq., as a claim or defense in a judicial pro-
ceeding and may obtain appropriate relief against a gov-
ernment. 42 U.S.C.S. § 2000cc-2(a). The United States
may also seek injunctive or declaratory relief to enforce
the statute. 42 U.S.C.S. § 2000cc-2(f).
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN4] See U.S. Const. amend. I.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HNS] Neutrality is the fundamental requirement of the
Establishment Clause, which prohibits government from
either endorsing a particular religion or promoting relig-
ion generally. A principle at the heart of the Establish.
ment Clause is that government should not prefer one
religion to another, or religion to irreligion.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN6] The United States Supreme Court has articulated
« three-part test to determine whether a statute violates
the Establishment Clause. A statute (1) must have a secu-
lar legislative purpose, (2) its principal or primary effect
must be one that neither advances nor inhibits religion,
and (3) it must not create excessive government entan-
glement with religion.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN7] The purpose prong of the Lemon test asks
whether government's actual purpose is to endorse or
disapprove of religion. Lemon's requirement of a secular
purpose does not mean that the law's purpose must be
unrelated to religion. Instead, the purpose prong aims at
preventing the relevant governmental decisionmaker
from abandoning neutrality and acting with the intent of
promoting a particular point of view in religious matters.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN8] It is a permissible legislative purpose to alleviate
significant governmental interference with the ability of
religious organizations to define and carry out their reli-
Constitutional Law > Civil Rights Enforcement > Pris-
oners > Freedom of Religion
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN9] That portion of the Religious Land Use and Insti-
tutionalized Persons Act (RLUIPA), 42 US.CS. §
2000cc to 2000cc-5, that applies to institutionalized per-
sons specifically, 42 U.S.C.S. § 2000cc-] is unconstitu-
tional because it has the primary effect of advancing re-
ligi
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN 10] The effect prong of the Lemon test asks whether,
irrespective of government's actual purpose, the practice
under review in fact conveys a message of endorsement
or disapproval. In evaluating this prong, the two most
relevant factors are (1) whether a particular government
action benefits both secular and religious entities, and (2)
whether the action will induce religious exercise, rather
than only protecting it.
Page 3
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
{HN11] The Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 USCS. § 2000cc to
2000cc-5, has the effect of impermissibly advancing re-
ligion by giving greater protection to religious rights than
to other constitutionally protected rights.
Constitutional Law > Civil Rights Enforcement > Pris-
oners
[HN12] Prior to the Religious Land Use and Institution-
alized Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc to
2000cc-5, restrictions imposed by prison officials upon
inmates’ fundamental rights were subject to a rational-
relationship review which requires courts to consider: (1)
whether there is a valid, rational connection between the
prison regulation and a legitimate government interest;
(2) whether inmates have alternative means of exercising
the right in question; (3) the impact of a requested ac-
commodation of the right upon guards and other inmates;
and (4) the absence of alternatives to the regulation. The
rational-relationship test has been applied to claimed
violations of various fundamental rights, including the
right to the free exercise of religion, the right to freedom
of speech, the right to marry, the right to privacy, the
right to meaningful access to the courts, and the right to
be free from racial discrimination.
Constitutional Law > Civil Rights Enforcement > Pris-
oners > Freedom of Religion
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN13] The primary effect of the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S.
§ 2000cc to 2000cc-5, is not simply to accommodate the
exercise of religion by individual prisoners, but to ad-
vance religion generally by giving religious prisoners
rights superior to those of nonreligious prisoners. When
Congress acts to lift the limitations on one right while
ignoring all others, it abandons neutrality towards these
rights, placing its power behind one system of belief.
When the one system of belief protected is religious be-
lief, Congress has violated the basic requirement of neu-
trality embodied in the Establishment Clause.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
fHN14}] In evaluating a statute's effect, a court must ask
whether an objective observer, acquainted with the text,
legislative history, and implementation of the enactment
would view it as state endorsement of religion.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN15] When Congress has acted to impose an affirma-
tive burden on religion, it is necessary for Congress to
remove that burden in order to retain a position of neu-
trality towards religious belief. However, when Congress
acts to provide religious inmates, and only religious in-
mates, with a level of constitutional protection that the
United States Supreme Court has deemed unnecessary to
protect religious rights, it has gone beyond protecting
religion to affirmatively advancing it.
Constitutional Law > Civil Rights Enforcement > Pris-
oners > Freedom of Religion
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN16] 42 U.S.C.S. § 2000cc-] violates the Establish-
ment Clause.
COUNSEL: ARGUED: Todd R. Marti, OFFICE OF
THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellants.
David A. Goldberger, OHIO STATE UNIVERSITY
COLLEGE OF LAW-CLINICAL PROGRAMS, Co-
lumbus, Ohio, Michael S. Raab, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.
ON BRIEF: Todd R. Marti, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appel-
lants.
David A. Goldberger, OHIO STATE UNIVERSITY
COLLEGE OF LAW-CLINICAL PROGRAMS, Co-
lumbus, Ohio, Michael S. Raab, Mark B. Stern, UNITED
STATES DEPARTMENT OF JUSTICE, Washington,
D.C., Benson Wolman, WOLMAN, GENSHAFT &
GELMAN, Columbus, Ohio, for Appellees.
Marc D. Stern, AMERICAN JEWISH CONGRESS,
STEPHEN WISE CONGRESS HOUSE, New York,
New York, for Amici Curiae.
JUDGES: Before: MOORE and GILMAN, Circuit
Judges; TARNOW, District Judge. *
* The Honorable Arthur J. Tarnow, United States
District Judge for the Eastern District of Michi-
gan, sitting by designation.
OPINIONBY: RONALD LEE GILMAN -
OPINION: [*259] [***4]
RONALD LEE GILMAN, Circuit Judge. Plaintiffs
in these three consolidated cases [**2] are Ohio prison-
Page 4
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
ers who contend, among other claims, that various Ohio
corrections officials have violated the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc-2000cc-5. The defendant officials filed
motions to dismiss the RLUIPA claims, challenging the
constitutionality of 42 U.S.C. § 2000cc-], the section of
the Act that applies to institutionalized persons. Their
motions were denied by the district court. In this inter-
locutory appeal, defendants contend that RLUIPA (1)
exceeds Congress's powers under both the Spending and
Commerce Clauses, (2) violates states’ rights under the
Tenth Amendment, and (3) improperly advances religion
in violation of the Establishment Clause of the First
Amendment. For the reasons [*260] set forth below, we
agree that the portion of RLUIPA that applies to institu-
tionalized persons--specifically, 42 U.S.C. § 2000cc-1--
violates the Establishment Clause. We therefore
REVERSE the district court's denial of defendants’ mo-
tions to dismiss and REMAND the case for further pro-
ceedings consistent with this opinion.
I. BACKGROUND
A. Factual background [**3]
Because this appeal-involves a facial challenge to
RLUIPA, the facts of the individual cases are not par-
ticularly relevant. [***5] The prisoners in all three
cases generally allege that officials with the Ohio De-
partment of Rehabilitation and Corrections (ODRC) vio-
lated RLUIPA by refusing to accommodate the prisoners’
religious beliefs and practices. Defendants, on the other
hand, contend that RLUIPA has allowed inmate gangs to
claim “religious’ status in order to insulate their illicit
activities from scrutiny.”
What is relevant to this case is the history and sub-
stance of RLUIPA. In 1990, the Supreme Court held that
the United States Constitution does not require that gov-
ernment have a compelling state interest in order to enact
1 law of general applicability that incidentally burdens
the exercise of religion. Employment Div., Dept. of Hu-
man Res. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110
S. Ct. 1595 (1990). Congress responded in 1993 by en-
acting the Religious Freedom Restoration Act (RFRA),
42 U.S.C. § § 2000bb--2000bb-4. RFRA required that
any governmental attempt to “substantially burden" the
exercise of religion must be the [**4] least restrictive
means of furthering a compelling state interest. 42 U.S.C.
§ 2000bb-1(b). The Supreme Court held RFRA uncon-
stitutional insofar as it applied to states and localities
because the statute exceeded Congress's powers under
the Fourteenth Amendment. City of Boerne v. Flores, 521
U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997).
reacted to Boerne by passing RLUIPA in
2000. RLUIPA has the same substantive standard as
RFRA. It provides, in relevant part, that "no government
shall impose a substantial burden on the religious exer-
cise of a person residing in or confined to an institution"
unless the burden "is in furtherance of a compelling gov-
ernmental interest" and "is the least restrictive means" of
furthering that interest. 42 U.S.C. § 2000cc-1(a). [HN1]
The Act defines "religious exercise" as "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).
[HN2] RLUIPA's requirement of strict scrutiny stands in
sharp contrast to the Supreme Court's previous decisions,
which have held that the courts should [**5] apply a
rational-relationship [***6] review to restrictions upon
inmates’ fundamental rights. See Turner v. Safley, 482
U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) (apply-
ing the rational-relationship test to prison rules regulating
prisoner correspondence and marriage); O’Lone v. Estate
of Shabazz, 482 U.S. 342, 96 L. Ed. 2d 282, 107 S. Ct.
2400 (1987) (applying the rational-relationship test to
prison rules regulating prisoners’ religious exercise).
Congress enacted RLUIPA pursuant to its powers
under the Spending Clause, U.S. Const. art. I, § 8, cl. 1,
and the Commerce Clause, U.S. Const. art. I, § 8, cl. 3.
RLUIPA applies where "the substantial burden [on reli-
gious exercise] is imposed in a program or activity that
receives Federal financial assistance." 42 U.S.C. §
2000cc-1(b)(1). The Act is also applicable where "the
substantial burden affects, or removal of that substantial
burden would affect, commerce with foreign [*261]
nations, among the several States, or with Indian tribes."
42 U.S.C. § 2000cc-1(b)(2).
[HN3] RLUIPA creates a private right of action.
Any person may “assert a violation [**6] of this chapter
as a claim or defense in a judicial proceeding" and may
obtain “appropriate relief against a government." 42
U.S.C. § 2000cc-2(a). The United States may also seek
injunctive or declaratory relief to enforce the statute. 42
U.S.C. § 2000cc-2(f).
RLUIPA's congressional sponsors specifically noted
that they expected federal courts to respect the decisions
of prison officials as to what restrictions on the exercise
of religion are necessary in the prison context. A joint
statement to the Senate expressed the sponsors’ belief
that federal courts would "continue the tradition of giv-
Kennedy, 146 Cong. Rec. $7774-01, $7775 (2000).
(°**7)
B. Procedural background
Page 5
349 F.3d 257, *; 2003 U.S. App. LFXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
The plaintiff prisoners brought suit against various
Ohio corrections officials based upon claims arising un-
der the First and Fourteenth Amendments. RLUIPA went
into effect [**7] after suit was filed, causing plaintiffs to
amend their complaints to include claims under the Act.
Defendants then filed motions to dismiss the RLUIPA
claims, arguing that the Act was unconstitutional. (All
references to RLUIPA are to 42 U.S.C. § 2000cc-/ only,
the portion of the Act that applies to institutionalized
persons.) The United States intervened to defend the
constitutionality of the Act. All three cases were consoli-
dated in order to adjudicate the motions to dismiss at the
same time.
On August 27, 2001, the magistrate judge filed a
Report and Recommendation, which concluded that the
statute was constitutional and recommended that the dis-
trict court deny defendants’ motions to dismiss. The dis-
trict court entered an opinion and order adopting the Re-
port and Recommendation on February 25, 2002. Ap-
proximately a year and a half later, on August 4, 2003,
the court certified its February 25, 2002 order for imme-
diate appeal pursuant to 28 U.S.C. § 1292(b). The par-
ties then filed a joint petition for leave to appeal with this
court on August 6, 2003, within the 10-day time limit
imposed by the statute. We have previously granted
[**8] the petition for leave to appeal.
Il. ANALYSIS
A. Lineup of the courts
The Supreme Court has not yet considered the con-
stitutionality of RLUIPA. Justice Stevens, however, in
his concurring opinion in Boerne, concluded that
RLUIPA's predecessor, RFRA, violated the Establish-
ment Clause: {***8]
In my opinion, the Religious Freedom
Restoration Act of 1993 (RFRA) is a “law
respecting an establishment of religion"
that violates the First Amendment to the
Constitution. . . . The statute has provided
{religious organizations] with a legal
weapon that no atheist or agnostic can ob-
tain. This governmental preference for re-
ligion, as opposed to irreligion, is forbid-
den by the First Amendment.
Boerne, 521 U.S. at 536-37 (1997) (Stevens, J., concur-
ring).
Two circuits, without reference to Justice Stevens's
concurring opinion, have come to the opposite conclu-
sion regarding the constitutionality of RLUIPA. See
[*262] Charles v. Verhagen, 348 F.3d 601, 2003 U.S.
App. LEXIS 22297, No. 02-3572 (7th Cir. Oct. 30, 2003);
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).
Furthermore, five circuits, including the Seventh and
Ninth, have concluded that the identical operative [**9]
language in RFRA does not violate the Establishment
Clause. See In re Young), 141 F.3d 854, 863 (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), vacated on other grounds, 521 US.
1114, 138 L. Ed. 2d 1007, 117 S. Ct. 2502 (1997); EEOC
v. Catholic Univ. of Am., 317 U.S. App. D.C. 343, 83
F.3d 455, 470 (D.C. Cir. 1996); Flores v. City of Boerne,
73 F.3d 1352, 1364 (Sth Cir. 1996), rev'd on other
grounds, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct.
2157 (1998). Two district court opinions, in addition to
the one below, have also concluded that RLUIPA is con-
stitutional. See Johnson v. Martin, 223 F. Supp. 2d 820
(W.D. Mich. 2002); Charles v. Verhagen, 220 F. Supp.
2d 955 (W.D. Wis. 2002), aff'd, 2003 U.S. App. LEXIS
22297, No. 02-3572 (7th Cir. Oct. 30, 2003).
Against this apparent juggernaut of circuit and dis-
trict court opinions stand two district court decisions that
reach the opposite conclusion. One is Madison v. Riter,
240 F. Supp. 2d 566 (W.D. Va. 2003) (Turk, J.), and the
other is [**10] Kilaab Al Ghashiyah (Khan) v. Dep't of
Corrections, 250 F. Supp. 2d 1016 (E.D. Wis. 2003)
(Adelman, J.), overruled by Charles v. Verhagen, [***9]
2003 U.S. App. LEXIS 22297, No. 02-3572 (7th Cir. Oct.
30, 2003). Both are remarkably well-worded and persua-
sive opinions that clearly set forth the history of
RLUIPA, the analytical basis for concluding that
RLUIPA violates the Establishment Clause, and the un-
persuasive nature of the contrary opinions. Indeed, our
own analysis can (and will) be considerably streamlined
by repeated references to Madison and Ghashiyah. (In-
explicably, the Seventh Circuit in Charles makes no ref-
erence to either of these district court opinions.)
B. RLUIPA violates the Establishment Clause be-
cause it favors religious rights over other fundamental
rights without any showing that religious rights are at
any greater risk of deprivation
The Establishment Clause of the First Amendment to
the U.S. Constitution states: [HN4] "Congress shall make
no law respecting an establishment of religion." [HN5]
Neutrality is the fundamental requirement of the Estab-
lishment Clause, which prohibits government from either
endorsing a particular religion or promoting religion
generally. [**11] Bd. of Educ. of Kiryas Joel Village
Sch. Dist. v. Grumet, 512 U.S. 687, 703, 129 L. Ed. 2d
546, 114 S. Ct. 2481 (1994) ("[A] principle at the heart
of the Establishment Clause [is] that government should
not prefer one religion to another, or religion to irreli-
Page 6
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
gion."); see also Ghashiyah, 250 F. Supp. 2d at 1021
(collecting cases that discuss the neutrality requirement).
In Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d
745, 91 S. Ct. 2105 (1971), [HN6] the Supreme Court
articulated » three-part test to determine whether a statute
violates the Establishment Clause. A statute (1) “must
have a secular legislative purpose,” (2) “its principal or
primary effect must be one that neither advances nor
inhibits religion,” and (3) it must not create “excessive
government entanglement with religion.” /d. at 6/2-/3
(internal quotation marks and citations omitted). The
Supreme Court suggested a modification to the Lemon
test in Agostini v. Felton, 521 U.S. 203, 232-35, 138 L.
Ed. 2d 391, 117 S. Ct. 1997 (1997), in the context of
considering the [***10] constitutionality of government
aid to parochial schools, [**12] where the Court pro-
ceeded to analyze entanglement under the effect prong
rather than as a [*263] separate factor. Based upon our
precedent of applying the Lemon test other than in aid-to-
education cases, however, we will proceed with the tradi-
tional three-part Lemon analysis. See, e.g., Adland v.
Russ, 307 F.3d 471, 479 (6th Cir. 2002) (applying the
Lemon test to decide that a Kentucky legislative resolu-
tion directing the state to move a Ten Commandments
monument to a permanent site on the state capitol
grounds violated the Establishment Clause).
1. The purpose of RLUIPA
[HN7] "The purpose prong of the Lemon test asks
whether government's actual purpose is to endorse or
disapprove of religion." Edwards v. Aguillard, 482 U.S.
578, 585, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987) (quot-
ing Lynch v. Donnelly, 465 U.S. 668, 690, 79 L. Ed. 2d
604, 104 S. Ct. 1355 (1984) (O'Connor, J., concurring)).
Lemon's requirement of a secular purpose “does not
mean that the law's purpose must be unrelated to religion
.. « ." Corp. of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327,
335, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987). [**73]
Instead, the purpose prong "aims at preventing the rele-
vant governmental decisionmaker . . . from abandoning
neutrality and acting with the intent of promoting a par-
ticular point of view in religious matters." /d.
In Amos, the Supreme Court considered whether
Congress had violated the Establishment Clause by ex-
empting religious organizations from Title VII's prohibi-
tion against religious discrimination in employment.
Amos held that [HN8] "it is a permissible legislative pur-
pose to alleviate significant governmental interference
with the ability of religious organizations to define and
carry out their religious missions." /d. In the present
case, plaintiffs argue that RLUIPA has a virtually identi-
cal purpose: to alleviate significant interference by prison
officials with the ability of prisoners to exercise their
religious beliefs. But material [***11] differences exist
between the application of RLUIPA in a prison setting
and the Title VII exemption at issue in Amos.
One key difference is that the exemption in Amos
was arguably necessary to avoid a violation of the Estab-
lishment Clause. Without the exemption, Title VII would
have required courts to interfere [**14] with the internal
workings of religious organizations, and fear of liability
might have affected the way religious organizations car-
ried out their missions. /d. at 336; see also id. at 344
(Brennan, J., concurring) ("A case-by-case analysis for
all activities therefore would both produce excessive
government entanglement with religion and create the
danger of chilling religious activity."). Enacting
RLUIPA, on the other hand, wa not even arguably nec-
essary to avoid a violation of the Establishment Clause.
The Supreme Court had previously held that government
interference with prisoners’ fundamental rights is not
subject to strict scrutiny, as RLUIPA requires, but only
to a rational-relationship review. See Turner, 482 U.S.
78, 96 L. Ed. 2d 64, i07 S. Ct. 2254; O'Lone, 482 US.
342, 96 L. Ed. 2d 282, 107 S. Ct. 2400.
Another key difference between RLUIPA and the
exemption in Amos is that RLUIPA sweeps much more
broadly. As one commentator noted about RFRA, the
predecessor to RLUIPA that has identical substantive
provisions:
Compering RFRA to Amos is like com-
paring apples to oranges. RFRA, unlike
[**15] Amos, does not exempt religion
from regulation for the purpose of avoid-
ing an Establishment Clause violation.
Rather, RFRA institutes a standard of re-
view in every case which implicates reli-
gious conduct. . . . Amos did not involve
[*264] a law that exempted religion from
every law in the country. Rather, it per-
mitted the exemption of religious employ-
ers from a particular requirement in pre-
scribed circumstances. The law in Amos
lacked RFRA's vast scope; therefore,
[***12] Amos cannot dictate how RFRA
fares under the Establishment Clause.
Marci A. Hamilton, The Religious Free-
dom Restoration Act is Unconstitutional,
Period, 1 U. Pa. J. Const. L. 1, 13-14
~ (1998).
The broader scope of RLUIPA suggests that its ac-
tual purpose is not to accommodate religion by removing
a particular obstacle to religious exercise, but "to ad-
vance religion in prisons relative to other constitutionally
Page 7
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
protected conduct." Ghashiyah, 250 F. Supp. 2d at 1024.
If that is indeed the true purpose of RLUIPA, then Con-
gress has “abandoned neutrality and acted with the pur-
pose of furthering religion,” in violation of the Estab-
lishment Clause's fundamental command of [**16] gov-
ernmental neutrality. /d. at /025.
Resolution of the question of whether RLUIPA has
the proper purpose of alleviating government interfer-
ence with religious exercise or the prohibited purpose of
advancing religion in prisons is not necessary to our ul-
timate decision regarding the Act's constituiionality.
Even if the purpose of RLUIPA fits within the rule of
Amos, [HN9] RLUIPA is still unconstitutional because it
has the primary effect of advancing religion. See Amos,
483 US. at 334-35 ("At some point, accommodation
may devolve into an unlawful fostering of religion . . . .")
(internal quotation marks omitted).
2. The effect of RLUIPA
[HN10] "The effect prong [of the Lemon test] asks
whether, irrespective of government's actual purpose, the
practice under review in fact conveys a message of en-
dorsement or disapproval." Lynch v. Donnelly, 465 U-S.
668, 690, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984)
(O'Connor, J., concurring). In evaluating this prong, the
two most relevant factors are (1) whether a particular
government action benefits both secular and religious
entities, and [***13] (2) whether the action will induce
voligious [**17] exercise, rather than only protecting it.
See Ghashiyah, 250 F. Supp. 2d at 1025-26 (collecting
authorities that have used these factors in Establishment
Clause cases). Applying these factors to the present case
demonstrates that [HN11] RLUIPA has the effect of
impermissibly advancing religion by giving greater pro-
tection to religious rights than to other constitutionally
protected rights.
[HN12] Prior to RLUIPA, restrictions imposed by
prison officials upon inmates’ fundamental rights were
subject to a rational-relationship review, see Turner, 482
U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254; O'Lone, 482
U.S. 342, 96 L. Ed. 2d 282, 107 S. Ct. 2400, which re-
quires courts to consider: (1) whether there is a “valid,
rational connection” between the prison regulation and a
legitimate government interest; (2) whether inmates have
alternative means of exercising the right in question; (3)
the impact of a requested accommodation of the right
upon guards and other inmates; and (4) the absence of
alternatives to the regulation. Turner, 482 U.S. at 89-90.
The rational-relationship test has been applied to claimed
violations of various fundamental [**18] rights, includ-
ing the right to the free exercise of religion, O’Lone, 482
U.S. 342, 96 L. Ed. 2d 282, 107 S. Ct. 2400, the right to
freedom of speech, Amuiel v. Reno, 332 U.S. App. D.C.
191, 156 F.3d 192 (D.C. Cir. 1998), the right to marry,
Turner, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254,
the right to privacy, Oliver v. Scott, 276 F.3d 736 (Sth
Cir. 2002), the right to meaningful access to the courts,
Lewis v. Casey, 518 U.S. 343, [*265] 135 L. Ed. 2d 606,
116 S. Ct. 2174 (1996), and the right to be free from ra-
cial discrimination, Morrison v. Garraghty, 239 F.3d 648
(4th Cir. 2001).
In contrast to the highly deferential rational-
relationship test, RLUIPA requires courts to apply strict
scrutiny to all substantial burdens upon the free exercise
of religion. Madison eloquently explained the dramatic
changes imposed by RLUIPA:
Under RLUIPA, prison regulations that substantially
burden religious belief, including those that are generally
[***14] applicable and facially neutral, are judged under
a strict scrutiny standard, requiring prison officials,
rather than the [**19] inmate, to bear the burden of
proof that the regulation furthers a compelling penologi-
cal interest and is the least restrictive means of satisfying
this interest. 42 U.S.C. § 2000cc-1. As is well known
from the history of constitutional law, the change that
RLUIPA imposes is revolutionary, switching from a
scheme of deference to one of presumptive unconstitu-
tionality. See Smith, 494 U.S. at 888. Instead of rational,
the penological interest under RLUIPA must be of the
highest order, see Wisconsin v. Yoder, 406 U.S. 205, 215,
32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Jenkins v. An-
gelone, 948 F. Supp. 543, 546 (E.D. Va. 1996); instead
of focusing on the prison inmate's ability to find other
avenues to exercise his belief, a court is required to focus
on the prison administrator's choice among regulatory
options, see 42 U.S.C. § 2000cc-1(a)(2); instead of plac-
ing the burden of proof on an inmate, RLUIPA throws
the burden on prison officials, see id. § 2000cc-1(a). It is
hard to imagine a greater reversal of fortunes for the reli-
gious rights of inmates than the one involved [**20] in
th : passage of RLUIPA.
240 F. Supp. 2d at 575.
RLUIPA's enhanced protection for religious rights
might not violate the First Amendment requirement of
neutrality if Congress had enacted RLUIPA based upon
evidence that religious rights are at greater risk of depri-
vation in the prison system than other fundamental
rights. The exemption in Amos, for example, had the
effect of maintaining congressional neutrality toward
religion because "Title VII's prohibitions on hiring or
firing on the basis of religion had a much greater nega-
tive impact on the purpose and mission of a religious
organization in comparison to the effect of the prohibi-
tions on a secular institution." Madison, 240 F. Supp. 2d
at 577 n.9. In contrast, Congress enacted RLUIPA "in
the absence of any proof that religious rights are more at
Page 8
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
risk [***15] in prison than other fundamental rights,
with the knowledge that strict scrutiny is not required to
protect the religious belief of prisoners under the Free
Exercise Clause," Madison, 240 F. Supp. 2d at 576, and
with the knowledge that prisoners already have a remedy
for violations of their constitutional rights. [**21]
"Such an action, while labeled a neutral 'accommoda-
tion,’ is not in fact neutral at all, and the Court is not al-
lowed to defer to the mere characterization of RLUIPA
as such.” /d. at 576; see also Ghashiyah, 250 F. Supp. 2d
at 1027 ("The effect [of RLUIPA], therefore, is to pro-
vide greater protection to religiously motivated conduct
than other conscientious conduct.").
Although the supporters of RLUIPA stated that
"some institutions restrict religious liberty in egregious
and unnecessary ways," see Statements of Senators
Hatch and Kennedy, 146 Cong. Rec. S7774-01, S7775
(2000), RLUIPA supporters offered no evidence that
inmates’ other constitutional [*266] rights “are not simi-
larly threatened by prison administrators," Madison, 240
F. Supp. 2d at 575. And if prison officials in fact “restrict
religious liberty [or other fundamental rights] in egre-
gious and arbitrary ways,” prisoners already have a rem-
edy under Turner and O'Lone, which require prison poli-
cies to be “legitimate and neutral," Turner, 482 U.S. at
90, and which held that strict scrutiny is not necessary to
protect the religious rights of prisoners. [**22] Ghashi-
yah, 250 F. Supp. 2d at 1031 (noting that O'Lone already
provides prisoners a remedy for violations of their reli-
gious rights).
Madison provides an excellent illustration of the ef-
fect of RLUIPA upon the rights of prisoners:
Assume, for example, that a prison official confiscates
white supremacist literature held by two different in-
mates. One inmate is a member of the Aryan Nation
solely because of his fanatical belief that a secret Jewish
conspiracy exists to control the world. The second
[***16] inmate holds the white supremacist literature
because he is a member of the Church of Jesus Christ
Christian, Aryan Nation ("CJCC"). The non-religious
inmate may challenge the confiscation as a violation of
his rights to free expression and free association. A court
would evaluate these claims under the deferential ra-
tional relationship test in Turner, placing a high burden
of proof on the inmate and leaving the inmate with corre-
spondingly dim prospects of success. However, the reli-
gious inmate, as a member of the CJCC, may assert a
RLUIPA claim, arguing that the confiscation places a
substantial burden on his religious exercise. The reli-
gious (**23] white supremacist now has a much better
chance of success than the non-religious white suprema-
cist, as prison officials bear the burden of proving that
the prison policy satisfies a compelling interest and is the
least restrictive means of satisfying the interest. The dif-
ference in the level of protection provided to each claim
lies not in the relative merits of the claims, but lies in-
stead in the basis of one claim in religious belief.
240 F. Supp. 2d at 576 (internal citations omitted). As
this example illustrates, [HN13] the primary effect of
RLUIPA is not simply to accommodate the exercise of
religion by individual prisoners, but to advance religion
generally by giving religious prisoners rights superior to
those of nonreligious prisoners. "When Congress acts to
lift the limitations on one right while ignoring all others,
it abandons neutrality towards these rights, placing its
power behind one system of belief. When the one system
of belief protected is religious belief, Congress has vio-
lated the basic requirement of neutrality embodied in the
Establishment Clause." Madison, 240 F. Supp. 2d at 577
(internal citations omitted).
In addition to [**24] its message of endorsement,
RLUIPA also has the effect of encouraging prisoners to
become religious in order to enjoy greater rights. The
Supreme Court has [***17] considered a statute's effect
on nonreligious persons as part of the effect analysis. See
Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9, 103 L. Ed.
2d I, 109 S. Ct. 890 (1989) (plurality opinion) (holding
that government may not compel nonadherents to sup-
port religious practices). One effect of RLUIPA is to
induce prisoners to adopt or feign religious belief in or-
der to receive the statute's benefits. As Ghashiyah ex-
plained:
When inmates see that the rules do not
apply with the same force to the religious
as to the agnostic or atheist . . ., non-
religious prisoners will know what they
have to do so that they, too, can benefit
from the softer rules: become religious.
Considering the meager resources [*267]
250 F. Supp. 2d at 1029.
[HN 14] In evaluating a statute's effect, a court must
ask "whether an objective observer, acquainted with the
[**25] text, legislative history, and implementation of
the enactment would view it as state endorsement of re-
ligion." Adland v. Russ, 307 F.3d 471, 484 (6th Cir.
Page 9
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
2002) (internal quotation marks omitted). RLUIPA's
legislative history, as previously discussed, offers no
evidence that religious rights are at any greater danger of
deprivation in prison than are other fundamental rights.
As to implementation, RLUIPA's inevitable effect is to
give greater freedom to religious inmates, and to induce
nonreligious inmates to adopt a religion. An objective
observer viewing RLUIPA's text, legislative history, and
effect would therefore conclude that the Act conveys a
message of religious endorsement.
Plaintiffs, however, point to the following statement
from Amos: "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 in-
fluence." 483 U.S. at 337 [***18] (emphasis in origi-
nal). Amos held that the exemption from Title VII did not
run afoul of the effect prong of Lemon because the gov-
ernment was not an active participant; the statute simply
allowed religious [**26] organizations to pursue their
religious objectives. /d. Plaintiffs contend that RLUIPA
has an identical effect. RLUIPA, according to plaintiffs,
"does not itself promote or subsidize a religious belief or
message; it merely frees religious groups and individuals
to practice as they otherwise would in the absence of
certain significant state-imposed burdens."
The problem with plaintiffs’ argument is that the ex-
emption from Title VII that was at issue in Amos simply
restored the level of freedom that religious institutions
enjoyed before Congress enacted Title VII. By creating
the exemption, Congress arguably acted to maintain neu-
trality toward religion. RLUIPA, on the other hand, does
not lift any affirmative burden on the exercise of relig-
ion. Instead, by enacting RLUIPA, Congress itself has
advanced religion by giving religious prisoners a pre-
ferred status in the prison community.
3. The entanglement between government and relig-
ion created by RLUIPA
The third prong of the Lemon test prohibits an ex-
cessive entanglement of government with religion.
Lemon, 403 U.S. at 613. Ghashiyah held that RLUIPA's
nebulous definition of religious exercise, [**27] see 42
U.S.C. § 2000cc-5(7)(A), creates an excessive entangle-
ment “because it forces the states to become involved
with, knowledgeable about, and exceedingly sensitive to
the varied religious practices of their inmates. It also
forces the federal courts to become involved in prison
administration, an area that the Supreme Court has ad-
monished judges to avoid." 250 F. Supp. 2d at 1031.
Although Ghashiyah's reasoning is plausible, we
question whether RLUIPA requires any greater interac-
tion between [***19] government officials and religion
than exists under present law. Assume, for example, that
a prisoner who is a member of a nontraditional "religion"
claims a First Amendment right to a special diet that is
required by the prisoner's "religious" beliefs. Before
reaching the underlying constitutional claim, a court
must first determine (1) whether the "religious" beliefs
are sincerely held, and (2) whether the prisoner's beliefs
"constitute a religion [*268] within the meaning of the
First Amendment." Africa v. Pennsylvania, 662 F.2d
1025, 1029-31 (3d Cir. 1981) (holding that a prisoner's
belief system was not a religion for [**28] purposes of
First Amendment analysis). Deciding whether a specific
act or practice qualifies as "religious exercise" under
RLUIPA arguably creates no greater entanglement than
deciding whether a particular belief system constitutes a
"religion" under the First Amendment. However, because
we have concluded that RLUIPA has the impermissible
effect of advancing religion, we have no need to further
explore the question of whether RLUIPA violates
Lemon's entanglement prong.
C. The unpersuasive nature of the cases upholding
RLUIPA and RFRA
The cases that have upheld RLUIPA and RFRA
against constitutional attack have essentially relied on the
rationale of Amos. See, e.g.,Charles v. Verhagen, 2003
U.S. App. LEXIS 22297, No. 02-3572, slip op. at 12-13
(7th Cir. Oct. 30, 2003); Mayweathers v. Newland, 314
F.3d 1062, 1068-69 (9th Cir. 2002). We believe that
such reliance is misplaced. As we have already dis-
cussed, the exemption in Amos was arguably necessary
to avoid an Establishment Clause violation. Amos, 483
U.S. at 336; see also id. at 344 (Brennan, J., concurring).
But RLUIPA extends protection to religious exercise in
prison far beyond what is required [**29] by the Estab-
lishment Clause; it imposes strict scrutiny where the Es-
tablishment Clause requires only a rational-relationship
review. See Turner, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S.
Ct. 2254; O'Lone, 482 U.S. 342, 96 L. Ed. 2d 282, 107 S.
Ct. 2400. [***20]
The exemption in Amos, moreover, was a narrowly
tailored solution to the potential Establishment Clause
problem created by Title VII's application to religious
institutions. RLUIPA, on the other hand, does not ad-
dress a particular burden on religious exercise, but in-
stead exempts religious prisoners from many generally
applicable prison regulations. See Hamilton, / U. Pa. J.
Const. L. at 13-14. We believe that Professor Hamilton's
comment that "comparing RFRA to Amos is like compar-
ing apples to oranges" is equally applicable when com-
paring RLUIPA to Amos. See id. This same point was
expressed somewhat differently in Madison:
Page 10
349 F.3d 257, *; 2003 U.S. App. LEXIS 22840, **;
2003 FED App. 0397P (6th Cir.), ***
The difference between Amos and
RLUIPA is, like all stablishment Clause
cases, a question of degree. However, the
difference in degree between the two is
substantial, and congressional neutrality is
the line that divides [**30] them. [HN15]
When Congress has acted to impose an af-
firmative burden on religion, it is neces-
sary for Congress to remove that burden
in order to retain a position of neutrality
towards religious belief. However, when
Congress acts to provide religious in-
mates, and only religious inmates, with a
level of constitutional protection that the
Supreme Court has deemed unnecessary
to protect religious rights, it has gone be-
yond protecting religion to affirmatively
advancing it.
240 F. Supp. 2d at 577 n.9; see also Ghashiyah, 250 F.
Supp. 2d at 1028-29 (noting the fundamental distinction
between the exemption in Amos and RLUIPA).
These authorities have convinced us that reliance on
the rationale of Amos to sustain the constitutionality of
RLUIPA is misplaced. We therefore conclude that the
cases supporting RLUIPA are unpersuasive. (***21]
Ill. CONCLUSION
For all the reasons set forth above, we hold [HN16]
that 42 U.S.C. § 2000cc-1 violates the [*269] Estab-
lishment Clause. Because of this determination, we have
no need to consider the alternative grounds raised by
defendants in their constitutional challenge to RLUIPA.
We therefore [**31] REVERSE the district court's de-
nial of defendants’ motions to dismiss and REMAND the
case for further proceedings consistent with this opinion.
John W. Gerhardt, Plaintiff, v. Alan Lazaroff, et al., Defendants, and Lee Hampton,
et al., Plaintiffs, v. Reginald Wilkinson, et al., Defendants, and John Miller, et al.,
Plaintiffs, v. Reginald Wilkinson, et al., Defendants.
Case No. C2-95-517, Case No. C2-97-382, Case No. C2-98-275
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
OHIO, EASTERN DIVISION
221 F. Supp. 2d 827; 2002 U.S. Dist. LEXIS 16205
February 25, 2002, Decided
February 25, 2002, Filed
PRIOR HISTORY: Gerhardt v. Lazaroff, 2001 U-.S.
Dist. LEXIS 24489 (S.D. Ohio Aug. 27, 2001).
DISPOSITION: [**1] Objections to Magistrate
Judge's Report and Recommendation overruled and Re-
port and Recommendation adopted. Defendants’ motion
to dismiss denied with exception that plaintiffs’ claims
asserted directly under Ohio Constitution dismissed.
CASE SUMMARY:
PROCEDURAL POSTURE: Three cases were con-
solidated for the purpose of issuing a single ruling on
defendants’ motion to dismiss. The sole issue raised by
the motion was the constitutionality of the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C-.S.
§ 2000cc et seq. Each plaintiff alleged denial of the right
to practice his religion in a prison setting. A magistrate
judge recommended denial of the defendants’ motion and
defendants objected.
OVERVIEW: Defendants argued that a statute such as
Religious Land Use and Institutionalized Persons Act, 42
U.S.C.S. § 2000cc et seq., which imposes a least restric-
tive means test on the actions of prison officials is too
vague to be enforceable in the prison setting. Since that
was the test that Congress selected, as long as the statute
was not unconstitutional, it was the court's duty to im-
plement it. For the most part, defendants raised a facial
challenge to RLUIPA's constitutionality, and had not
contended that under the facts of any of the specific
pending cases applying the RLUIPA would produce un-
constitutional results. The United States, who had joined
plaintiffs, demonstrated an adequate relationship be-
tween the purpose of the federal funds and the purposes
of RLUIPA, and that the four-part Dole test had been
satisfied. Defendants’ argument that the RLUIPA consti-
tuted governmental endorsement of religion was rejected.
The government's decision to lift burdens on the free
exercise of religion was not tantamount to government
endorsement of either a particular religion or religion in
general.
OUTCOME: The objections to the magistrate judge's
report and recommendation were overruled and the re-
port and recommendation was adopted, and defendants’
motion to dismiss was denied with the exception of
plaintiffs’ claims asserted directly under the Ohio Consti-
tution, which were dismissed.
LexisNexis(R) Headnotes
Governments > Legislation > Interpretation
[HN1] When evaluating a facial challenge to a statute, a
court must be careful not to allow the legislative findings
underlying enactment of the statute to be trumped by the
fact finding apparatus of a single court.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Free Exercise of Religion
[HN2] The Religious Land Use and Institutionalized
Persons Act, 42 U.S.C.S. § 2000cc et seq., to enlarges
rather than restricts the free exercise of religion.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN3] The government's decision to lift burdens on the
free exercise of religion is not tantamount to government
endorsement of either a particular religion or religion in
general.
Page 2
221 F. Supp. 2d 827, *; 2002 U.S. Dist. LEXIS 16205, **
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN4] Government action which operates to accommo-
date the exercise of religion is not tantamount, by itself,
to an unconstitutional endorsement of religion.
Civil Procedure > Trials > Judicial Discretion
[HNS] It is a sound exercise of judicial discretion not to
decide issues which are unnecessary to the outcome of
the case.
COUNSEL: David Alan Goldberger, Ohio State Univer-
sity College of Law, Columbus, OH, for plaintiffs (C2-
98-275).
Todd Robert Marti, Ohio Attorney General's Office, Co-
lumbus, OH, for defendants (C2-98-275).
JUDGES: Edmund A. Sargus Jr., United States District
Judge. MAGISTRATE JUDGE KEMP. JUDGE
GRAHAM.
OPINIONBY: Edmund A. Sargus Jr.
OPINION: [*829]
OPINION AND ORDER
These three cases, one pending before the under-
signed Judge, one pending before Judge James L. Gra-
ham, and one pending before Magistrate Judge Terence
P. Kemp, have been consolidated for the purpose of issu-
ing a single ruling on defendants’ motion to dismiss. The
sole issue raised by the motion is the constitutionality of
the Religious Land Use and Institutionalized Persons Act
("RLUIPA"), 42 U.S.C. § § 2000cc et seq.
In a Report and Recommendation filed on August
27, 2001, Magistrate Judge Kemp, to whom the motion
had been referred for an initial decision pursuant to 28
U.S.C. § 636(b), [**2] recommended that the defen-
dants’ motion be denied, with the exception of that por-
tion directed to plaintiffs’ claims under the Ohio Consti-
tution. Defendants objected to that recommendation,
continuing to argue that RLUIPA was not a constitu-
tional exercise of Congress’ power under either the
Spending Clause or the Commerce Clause. All of the
plaintiffs, including the United States, which intervened
in order to defend the constitutionality of RLUIPA, filed
responses to the objections, and the defendants filed a
reply. For the following reasons, the objections will be
overruled and defendants’ motion for partial dismissal
will be denied with the exception of that portion directed
to plaintiffs’ claims under the Ohio Constitution.
I.
The facts of this case are essentially those set forth
in the Magistrate Judge's Report and Recommendation.
Because, for the most part, defendants’ challenge is a
legal challenge and not dependent upon the facts of any
particular case, a lengthy recitation of the facts is unnec-
essary. [*830] However, as more fully discussed below,
there are certain facts which the defendants assert have
been established for purposes of the Court's ruling and
which, they claim, [**3] were overlooked or improperly
disregarded by the Magistrate Judge. The Court will
comment on those factual issues in the context of dis-
cussing the legal objections which defendants have
raised.
Otherwise, the facts are relatively straightforward.
Each of the plaintiffs claims to have been denied the
right to practice his religion in the prison setting due to
what plaintiffs assert are unwarranted concerns about
security or unjustified assumptions about the relationship
between plaintiffs’ chosen religion and prison gang activ-
ity, primarily White Supremacy gangs. Although plain-
tiffs originally contended that their constitutional rights
were being violated under the Turner v. Safley standard,
see Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107
S. Ct. 2254 (1987), after RLUIPA was enacted, they con-
tended that the more restrictive standards set forth in that
statute applied to the state's actions. The State of Ohio
then sought a ruling from the court that RLUIPA is un-
constitutional:
Il.
Defendants challenged RLUIPA on grounds that its
enactment exceeded Congress’ powers under either the
Spending Clause or the Commerce Clause of the United
States Constitution. [**4] The Magistrate Judge deter-
mined that the Spending Power provided adequate sup-
port for the enactmeat of RLUIPA, and consequently did
not reach the Commerce Clause issue. Defendants ar-
gued both that the Magistrate Judge's conclusions with
respect to the Spending Clause are erroneous, and that
the Magistrate Judge erred in refusing to reach the argu-
ments relating to the Commerce Clause. For the follow-
ing reasons, the Court finds each of defendants’ objec-
tions to be without merit.
Defendants first argue that a statute such as RLUIPA
which imposes a “least restrictive means” test on the ac-
tions of prison officials is too vague to be enforceable in
test governs the actions of a state when dealing with pri-
vate citizens’ First Amendment concerns, it not only has
the potential to lead to judicial second-guessing in the
prison setting, but has, when applied in the past, pro-
other, thus leaving prison officials without sufficient
Page 3
221 F. Supp. 2d 827, *; 2002 U.S. Dist. LEXIS 16205, **
guidance to determine how to implement RLUIPA's re-
quirements.
The short answer to defendants’ arguments is that
any statute which contemplates judicial review [**5]
under a standard which is not susceptible to mechanical
and precise definition has the potential to lead to con-
flicting judicial decisions on similar sets of facts. This
potential result is not fatal to the enforceability of the
statute. The Court further believes that defendants’ con-
tinued reliance on Turner v. Safley, supra, is unavailing.
In Turner, the Supreme Court was interpreting a provi-
sion of the Constitution. In doing so, it weighed the con-
stitutional rights of inmates against the realities of the
prison setting. Although the Court did not conclude that
the First Amendment required imposition of a "least re-
strictive means" test, Congress, in enacting RLUIPA, has
decreed otherwise with respect to a narrow class of First
Amendment claims. Once Congress makes that decision,
it is the Court's duty to implement it unless the statute
exceeds Congress’ power or is otherwise unconstitu-
tional. The fact that the Supreme Court did not impose
such a high standard absent a congressional directive to
do so is, by itself, not persuasive on the issue of whether
Congress had the power to impose a higher standard if it
so chose.
(*831] Defendants make several arguments which,
(**6] they claim, should have been resolved by the
Magistrate Judge on the basis of their "uncontroverted"
affidavits. They contend that, as a factual matter, (1)
there is an inadequate relationship between the federal
funds provided and the purposes of RLUIPA; (2) that
any such relationship is not proportional to the amount of
federal funds utilized in the prison programs in Ohio; and
(3) that the enforcement of RLUIPA in the prison setting
will necessarily involve burdening other inmates by plac-
ing them at a greater risk of physical harm because
RLUIPA will prevent prison officials from restricting
activities of other prisoners which pose legitimate secu-
rity threats. In response, plaintiffs argue primarily that
these are all matters of "legislative" fact and that defen-
dants in an individual case may not, by entering affida-
vits into the record, compel the Court to reach the con-
clusion that, for example, to enforce RLUIPA would
necessarily burden other inmates. That is a judgment,
according to plaintiffs, which Congress is free to make
and which the Court may overturn only if it is irrational.
The Court agrees with plaintiffs on this issue. For
the most part, defendants have raised a facial [**7] chal-
lenge to RLUIPA's constitutionality, and have not con-
tended that under the facts of any of the specific cases
pending before the Court, applying RLUIPA would pro-
duce unconstitutional results. [HN1] When evaluating a
facial challenge to a statute, the Court must be careful
not to allow the legislative findings underlying enact-
ment of the statute to be "trumped by the fact finding
apparatus of a single court." Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on
other grounds, 5/7 U.S. 1206 (1996), reaffirmed /0/
F.3d 325 (4th Cir. 1996), cert. denied 520 U.S. 1204
(1997). Beyond that fundamental point, however, the
Court is persuaded that the United States has demon-
strated an adequate relationship between the purpose of
the federal funds and the purposes of RLUIPA, and that
the four-part test set forth in South Dakota v. Dole, 483
U.S. 203, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987) has
been satisfied here.
Defendants’ reliance on FCC v. League of Women
Voters, 468 U.S. 364, 399-400, 82 L. Ed. 2d 278, 104 S.
Ct. 3106 (1984) for its proportionality argument is [**8]
also misplaced. Importantly, that case involved a Con-
gressional enactment which, if validated, would have
restricted the First Amendment free speech rights of the
recipients of federal funds. In the context of a First
Amendment challenge, the Court held that there must be
a substantial relationship between the purpose of the
funding and the interests sought to be advanced by the
First Amendment restrictions. Otherwise, Congress could
simply not "justify the substantial abridgment of impor-
tant journalistic freedoms which the First Amendment
jealously protects." /d. at 402. By contrast, [HN2] Con-
gress passed RLUIPA to enlarge rather than restrict the
free exercise of religion, and the First Amendment con-
cerns identified in League of Women Voters are not pre-
sent here. Further, the radio stations at issue in that case
were prohibited from spinning off affiliates to carry on
the work which Congress had prohibited, so that it was
impossible for them to carry out their free speech activi-
ties by segregating the Congressional funds from the
entity which performed those activities.
As the plaintiffs contend, the state has, among other
things, the recourse simply to choose not [**9] to accept
federal funding. If the funding is, as defendants assert, a
de minimis portion of the state prison budget, then Ohio
has more incentive to forego federal funding of its pris-
ons. Should it do so, the State would not be subject to
[*832] RLUIPA under a Spending Clause theory. Since
Ohio has continued to accept federal funds after
RLUIPA's enactment, however, it has clearly not chosen
this alternative.
Defendant's other primary argument is that RLUIPA
constitutes governmental endorsement of religion. The
Court adopts the Report and Recommendation's conclu-
sion that [HN3] the government's decision to lift burdens
on the free exercise of religion is not tantamount to gov-
ernment endorsement of either a particular religion or
religion in general. The Supreme Court has specifically
upheld government enactments in the free exercise area
which allow religion to be exercised in a manner which
Page 4
221 F. Supp. 2d 827, *; 2002 U.S. Dist. LEXIS 16205, **
the First Amendment does not compel, and those enact-
ments have been upheld as a valid exercise of Congress’
power in this area. [HN4] Government action which op-
erates to accommodate the exercise of religion is not
tantamount, by itself, to an unconstitutional endorsement
of religion. Corporation of the Presiding Bishop of the
Church of Latter-Day Saints v. Amos, 483 U.S. 327, 337,
97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987). [**10]
Finally, the Court agrees with the Magistrate Judge
that there was no need to reach the Commerce Clause
issue in this case. [HNS5] It is a sound exercise of judicial
discretion not to decide issues which are unnecessary to
the outcome of the case. Because RLUIPA can be sus-
tained on either of the two grounds advanced by the
plaintiffs and the Court has found one of those grounds
to be sufficient, any decision on the Commerce Clause
issue would be an advisory opinion. Although the possi-
bility exists that the Court of Appeals would disagree
with this Court's analysis of the Spending Clause issue
and might iherefore be required to reach the Commerce
Clause argument, that is not a justification for deciding a
difficult constitutional issue when that decision is unnec-
essary to permit the case to proceed.
III.
Based upon the foregoing, the objections to the
Magistrate Judge's Report and Recommendation are
OVERRULED and the Report and Recommendation is
ADOPTED. The defendants’ motion to dismiss is
DENIED with the exception that plaintiffs’ claims as-
serted directly under the Ohio Constitution are
DISMISSED. Case No. C-2-97-382 is returned to Judge
Graham for further proceedings. Case No. C-2-95-517
will, [**11] unless objections are filed within ten days,
be returned to Magistrate Judge Kemp for further pro-
ceedings on the assumption that the only issue which the
non-consenting party, the United States, intended to ar-
gue was the constitutionality of RLUIPA, and that the
parties do not have further objections to that case pro-
ceeding to adjudication on the merits before Magistrate
Judge Kemp.
2-25-2002
Edmund A. Sargus Jr.
United States District Judge
John W. Gerhardt, Plaintiff, v. Alan Lazaroff, et al., Defendants, and Lee Hampton,
et al., Plaintiffs, v. Reginald Wilkinson, et al., Defendants, and John Miller, et al.,
Plaintiffs, v. Reginald Wilkinson, et al., Defendants.
Case No. C2-95-517, Case No. C2-97-382, Case No. C2-98-275
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
OHIO, EASTERN DIVISION
221 F. Supp. 2d 827; 2001 U.S. Dist. LEXTS 24489
August 27, 2001, Decided
August 27, 2001, Filed
SUBSEQUENT HISTORY: adopted, objection over-
ruled, dismissed, in part, Gerhardt v. Lazaroff. 2002 U.S.
Dist. LEXIS 16205 (S.D. Ohio Feb. 25, 2002) Reported
at: 22] F. Supp. 2d 827 at 832.
DISPOSITION: [**1] Recommended that motions to
dismiss plaintiffs’ RLUIPA claims be denied.
CASE SUMMARY:
PROCEDURAL POSTURE: In consolidated cases,
plaintiff state prisoners sued defendant prison officials,
alleging, inter alia, that the state prison's practices re-
garding the prisoners’ religious practices violated the
Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA), 42 U.S.CS. § 2000cc et seq. The
prison officials moved to dismiss the RLUIPA claim.
The matter was referred to a magistrate for a report and
recommendation.
OVERVIEW: The RLUIPA was a proper exercise of
congressional spending power as it furthered the general
welfare and adequately expressed an intent to condition
further payment of federal funds to state prison programs
upon the states’ compliance with RLUIPA. The relation-
ship between federal funds received by the state prison
and the prisoners’ religious. practices was sufficiently
direct to insulate the RLUIPA from a constitutional chal-
lenge based on funding relationships given the discretion
granted Congress to determine the need to enact specific
legislation to further the general welfare and the precept
that otherwise properly enacted legislation was struck
down only if it clearly exceeded constitutional limits on
U.S. Const. art. | power. The RLUIPA did not violate the
Establishment Clause as it specifically permitted safety
and security to outweigh claims for religious accommo-
dation. The Act did not violate the state's Tenth Amend-
ment nghts as Congress acted constitutionally under the
Spending Clause in enacting the RLUIPA. The Act did
not violate the Eleventh Amendment because by accept-
ing federal funds, the state acquiesced to enforcement
under 42 U.S.C_S. § 2000cc-5(4)(A).
OUTCOME: The magistrate recommended that the
court find the Religious Land Use and Institutionalized
Persons Act of 2000, to be a constitutional exercise of
congressional spending power and that neither the Tenth
Amendment nor the Eleventh Amendment provided the
prison officials with immunity from the Act's provisions.
Consequently, the magistrate recommended that the mo-
tion to dismiss be denied.
LexisNexis(R) Headnotes
Governments > Legislation > Enactment
Constitutional Law > The Judiciary > Case or Contro-
versy > Constitutionality of Legislation
[HN1] It follows from the constitutionally-mandated
division of authority among the three branches of the
federal government, as well as from the division of gov-
ernmental power between the federal government and the
states, ‘hat Congressional acts are valid only when effec-
tuated through one or more specifically enumerated con-
stitutional powers. The powers of the legislature are de-
fired and limited; and that those limits may not be mis-
taken or forgotten, the United States Constitution is writ-
ten. However, an act of Congress is presumptively con-
stitutional and should only be invalidated when it is clear
Congress exceeded its enumerated powers in passing
such legislation.
Page 2
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
Constitutional Law > Congressional Duties & Powers >
Commerce Clause
[HN2] Congress may constitutionally regulate three main
areas or activities of commerce. First, Congress may
regulate the channels of interstate commerce. Second,
Coagress may regulate to protect the instrumentalities of
interstate commerce, or persons or things invelved in
interstate commerce, even though the threat being regu-
lated against arises from intrastate activities. Finally,
Congress may regulate activities which have a substan-
tial effect on interstate commerce.
Constitutional Law > Congressional Duties & Powers >
Commerce Clause
[}HIN3] In order for a statute constitutionally to regulate
activities which have a substantial effect on interstate
commerce, one of three prerequisites must be satisfied:
(1) the relationship between the regulated activities and
interstate commerce must be readily apparent; (2) Con-
gress must have made specific and supportable factual
findings concerning that relationship; or (3) the statute
must place the burden on the party seeking enforcement
to allege and demonstrate that relationship.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN4] The United States Constitution explicitly empow-
ers Congress to provide for the general welfare of the
United States. U.S. Const. art. 1, § 8, cl. 1. Congress may
expend funds in areas or enterprises even though its con-
stitutional power to legislate that area or enterprise may
be limited: the power of Congress to authorize expendi-
ture of public moneys for public purposes is not limited
by the direct grants of legislative power found in the
United States Constitution. In making such expenditures,
however, Congress may constitutionally condition re-
ceipt of federal funds upon compliance by the recipient
with federal statutory and administrative directives by
the states to further broad policy objectives Congress
might not otherwise be avle to effect through direct legis-
lation. Despite this broad assertion, Congress’ spending
power has never has never been viewed as unlimited.
There are four broad constitutional circumscriptions of
the spending power.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HNS] The first limitation on the spending power of
Congress is derived from the language of the spending
clause itself. U.S. Const., art. I, § 8, cl. 1. An exercise of
the spending power is permissible only when it is in the
pursuit of the general welfare of the United States. The
second limitation requires that any conditions on the fed-
eral grant be clearly presented to the states for their ac-
ceptance or rejection along with the grant itself. The
third requirement is that the conditions on the federal
grant be related to the federal interest involved in the
various national projects or programs. The last require-
ment is that Congress's exercise of its spending power
not violate any other constitutional provision.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN6] A determination of what constitutes the general
welfare of the citizens under U.S. Const. art. I, § 8, cl. 1,
is left to Congress's discretion unless the choice is clearly
wrong or a display of arbitrary power rather than an ex-
ercise of judgment. The concept of the general welfare is
not static, and needs that were narrow or parochial a cen-
tury ago may be interwoven in the present day with the
well-being of the nation.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN7] According to a magistrate of the United States
District Court for the Southern District of Ohio, Eastern
Division, the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C.S. § 2000cc et seq., is
sufficiently related to the general welfare of the United
States to survive a constitutional challenge on that
ground. U.S. Const. art. I, § 8, cl. 1.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN8] The second requirement of the spending power
under U.S. Const. art. I, § 8, cl. 1, actually encompasses
the consideration of two interrelated constitutiona: con-
cerns. First, any condition imposed by Congress on the
receipt of federal funds must be unambiguous so that
states may exercise their choice knowingly, cognizant of
the consequences of their participation. Thus, a state
must be able to ascertain what is expected of it by the
language of the statute. Consequently, the conditions
must be articulated in a way that allows a state to be cer-
tain of the consequences of its obligation to enforce the
requirement. Second, such conditions may not be im-
posed on the states after the funds have been received.
Though Congress's power to legislate under the spending
power is broad, it does not include surprising participat-
ing states with post acceptance or retroactive conditions.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN9] According to a magistrate for the United States
District Court for the Southern District of Ohio, Eastern
Division, the term "shall" is quintessentially a word as-
Page 3
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
sociated with obligations and rights for purposes of cases
challenging a statute under U.S. Const. art. I, § 8, cl. 1.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN10]} A magistrate for the United States District Court
for the Southern District of Ohio, Eastern Division, holds
that the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), 42 U.S.CS. § 2000cc et seq.,
adequately expresses Congress's intent to condition fur-
ther payment oi federal funds to state prison programs
upon the states’ compliance with RLUIPA for purposes
of U.S. Const. art. I, § 8, cl. 1.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN11] A magistrate for the United States District Court
for the Southern District of Ohio, Eastern Division, con-
cludes that the strict scrutiny standard set forth in the
Religious Land Use and Institutionalized Persons Act of
2000, 42 U.S.C.S. § 2000cc et seq., is not so vague for
purposes of U.S. Const. art. I, § 8, cl. 1, that states can-
not reasonably appreciate the obligations they are choos-
ing to undertake by continuing to accept federal money
for prison programs.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN12] Given the discretion granted to Congress to de-
termine, in the first instance, the need to enact specific
legislation to further the general welfare, and the precept
that courts may strike down otherwise properly-enacted
federal legislation only if it clearly exceeds constitutional
limits on the U.S. Const. art. I power, a magistrate of the
United States District Court for the Southern District of
Ohio, Eastern Division, concludes that the relationship
between federal funds received by a state prison and the
religious practices of inmates confined in institutions
under the jurisdiction of the state prison is sufficiently
direct to insulate ‘se Religious Land Use and Institution-
alized Persons Act of 2000, 42 U.S.CS. § 2000cc et
seq., from this particular constitutional challenge.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN13] A magistrate of the United States District Court
for the Southern District of Ohio, Eastern Division, con-
cludes that the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C.S. § 2000cc et seq., does
not violate the First Amendment's Establishment Clause.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN14] The Establishment Clause of the United States
Constitution provides that Congress shall make no law
respecting an establishment of religion. U.S. Const.
amend. I. The Lemon test remains the current standard
by which to determine whether a statute violates the Es-
tablishment Ciause. To pass constitutional muster, the
statute in question (1) must have a secular legislative
purpose; (2) its principal or primary effect must neither
advance nor inhibit religion; and (3) the statute must not
foster an excessive government entanglement with relig-
ion.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN15] Governments may, in their effort to accommo-
date religion, go beyond what is minimally required of
them by the Free Exercise Clause without running afoul
of the Establishment Clause. The government is permit-
ted, under the Lemon test, to alleviate significant gov-
ernmental interference with the ability of religious or-
ganizations to define and carry out their religious mis-
sions so long as the government does not abandon neu-
trality and act with the intent of promoting a particular
point of view in religious matters. The notion that any
law which makes it easier for a religion to carry out its
mission is unconstitutional is rejected since religious
groups have been better able to advance their purposes
on account of many laws that have passed constitutional
muster, such as laws which provide tax exemptions to
religious organizations or which permit school supplies
to be loaned to students attending parochial schools.
What is prohibited is the government itself advancing
religion through its own activities and influence. Finally,
the notion that a law which singles out religions for the
benefit it confers is per se unconstitutional is rejected.
Where the government acts with the proper purpose of
lifting a regulation that burdens the exercise of religion,
there is no reason to require that the exemption come
packaged with benefits to secular entities.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
[HN16] The Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C_S. § 2000cc et seq., spe-
cifically permits safety and security, which are undisput-
edly compelling state interests, to outweigh an inmate's
claim to a religious accommodation so long as there is a
sufficient nexus between that interest and the denial of
the requested accommodation, and there is no reasonable
Page 4
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
alternative to denial that would accommodate both the
free exercise of religion and the need to maintain order in
the prison environment.
Constitutional Law > Fundamental Freedoms > Free-
dom of Religion > Establishment of Religion
[HN17] According to a magistrate of the United States
District Court for the Southern District of Ohio, Eastern
Division, at a minimum, the constitutional infirmity of a
statute under the Establishment Clause flows from con-
sequences that are evident or on the face of the statute
and which, due to the absolute nature of the statute's re-
quirements, cannot be avoided by any amount of statu-
tory interpretation. Where it is an open question as to the
extent of the burdens (if any) the statute will necessarily
place on third parties and where the courts will be given
the chance to interpret the statute's requirements in order
to avoid placing unconstitutional burdens on others in
order to accommodate the free exercise of religion, the
statute will withstand an Establishment Clause challenge.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN18] The potential loss of less than one percent of the
funding by the states does not cross the generalized line
established by prior cases and turn enticement into com-
pulsion for purposes of U.S. Const. art. I, § 8, cl. 1.
Constitutional Law > Congressional Duties & Powers >
Reserved Powers
[HN19] See U.S. Const. amend. X.
Constitutional Law > Congressional Duties & Powers >
Reserved Powers -
[HN20] The Tenth Amendment has long been interpreted
to ensure that the federal government remains one of
limited powers, determining what powers in fact have
been given to it by the people.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxai on
Constitutional Law > Congressional Duties & Powers >
Reserved °owers
[HN21] The Tenth Amendment stands as no independent
constitutional bar to legislation that is a constitutional
exercise of the spending power.
Constitutional Law > State Autonomy
[HN22] The scope of the state's sovereign immunity nei-
ther derives from nor is limited by the terms of the Elev-
enth Amendment. The United States Constitution does
not give Congress the power to waive a state's sovereign
immunity from suit in its own courts.
Constitutional Luw > Congressional Duties & Powers >
Reserved Powers
[HN23] The determination of whether a particular statute
violates the Tenth Amendment is necessarily a determi-
nation of whether Congress was within its enumerated
powers in passing the contested legislation. Congress
exercises its conferred powers subject to the limitations
contained in the United States Constitution. Thus, for
example, under the Commerce Clause Congress may
regulate publishers engaged in interstate commerce, but
Congress is constrained in the exercise of that power by
the First Amendment. The Tenth Amendment likewise
restrains the power of Congress, but this limit is not de-
rived from the text of the Tenth Amendment itself, which
is essentially a tautology. Instead, the Tenth Amendment
confirms that the power of the federal government is
subject to limits that may, in a given instance, reserve
power to the states. The Tenth Amendment thus directs
the court to determine whether an incident of state sover-
eignty is protected by a limitation on a U.S. Const. art. I
power.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Congressional Duties & Powers >
Reserved Powers
[HN24] According to a magistrate for the United States
District Court for the Southern District of Ohio, Eastern
Division, because Congress acted constitutionally under
the Spending Clause in passing the Religious Land Use
and Institutionalized Persons Act of 2000, 42 U.S.C.S. §
2000cc et seq., the states’ Tenth Amendment rights nec-
essarily have not bee.: violated.
Constitutional Law > State Autonomy
[HN25] The Eleventh Amendment provides that the ju-
dicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of
another state, or by citizens or subjects of any foreign
state. U.S. Const. amend. XI.
Constitutional Law > State Autonomy
[HN26] Although the text of the Eleventh Amendment
creates no immunity against citizens attempting to sue
their own state, it has long been settled that the Amend-
ment, representing the concept of states as co-equal sov-
ereigns with the federal system bars such suits. Further-
more, suits which raise civil claims against state officials
for actions committed while serving in their official ca-
pacity but are, in essence, a claim against the state are
barred by the Eleventh Amendment.
Constitutional Law > State Autonomy
Page 5
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
[HN27] Although Congress has the power to abrogate a
state's Eleventh Amendment immunity pursuant to U.S.
Const. amend. XIV, § 5, Congress may not abrogate
state sovereign immunity under any of its U.S. Const. art.
I powers.
Constitutional Law > Congressional Duties & Powers >
Spending & Taxation
[HN28] Congress may, in the exercise of its spending
power, condition the grant of funds to the states upon
their taking certain actions that Congress could not re-
quire them to take, and that acceptance of the funds en-
tails an agreement to the actions.
Criminal Law & Procedure > Postconviction Proceed-
ings > Imprisonment & Prisoner Rights
Constitutional Law > Congression.1 Duties & Powers >
Spending & Taxation
Constitutional Law > State Autonomy
[HN29] For purposes of the Eleventh Amendment, a
state's acceptance of the terms pursuant to the Spending
Clause necessarily establishes its acquiescence to § 2(a)
of the Religious Land Use and Institutionalized Persons
Act of 2000, 42 U.S.C.S. § 2000cc et seq., which pro-
vides that a person may assert a violation of the Act as a
claim or defense in a judicial proceeding and obtain ap-
propriate relief against a government, where the term
government includes a state, its departments, or its offi-
cials. 42 U.S.C.S. § 2000cc-5(4)(A).
Constitutional Law > State Autonomy
[HN30] The Ex parte Young doctrine remains good law
in providing that plaintiffs may bring a suit against a
state official seeking prospective injunctive or declara-
tory relief to conform their behavior to comply with fed-
eral law without running afoul of the Eleventh Amend-
ment.
Constitutional Law > State Autonomy
[HN31] The Eleventh Amendment clearly does not now
prohibit prisoners from utilizing the Ex parte Young doc-
trine to obtain accommodations for their religious prac-
tices.
COUNSEL: For plaintiffs (C2-98-275): David Alan
Goldberger, Ohio State University College of Law, Co-
lumbus, OH.
For defendants (C2-98-275): Todd Robert Marti, Ohio
Attorney General's Office, Columbus, OH.
JUDGES: Terence P. Kemp, United States Magistrate
Judge. JUDGE GRAHAM. MAGISTRATE JUDGE
ABEL. JUDGE SARGUS.
OPINIONBY: Terence P. Kemp
OPINION:
(*832] REPORT AND RECOMMENDATION
Plaintiffs in these consolidated cases are Ohio pris-
oners who desire to practice a religion not traditionally
recognized by the Ohio Department of Rehabilitation and
Corrections ("ODRC"). All plaintiffs advance similar
claims that ODRC staff have interfered with the practice
of their respective religions or that staff have subjected
them to illegal or unconstitutional treatment because they
attempted to assert their religious beliefs. These allega-
tions include: (1) denial of access to religious literature
and/ or items necessary to practice their religion; (2) de-
nial of the opportunity to conduct religious services; (3)
denial of the freedom to conform their dress or appear-
ance to that required by [*833] their religion; (4) denial
of a prison chaplain specifically [**2] trained in and
dedicated to their religion; and (5) retaliation and dis-
crimination by ODRC staff resulting from attempts to
advance and practice their religion. All have amended
their complaints to assert that ODRC's practices violate
the Religious Land Use and Institutionalized Persons Act
of 2000 ("RLUIPA"), 42 U.S.C. § § 2000cc et seq.
The defendants have moved to dismiss the RLUIPA
claims, arguing that the statute may not be constitution-
ally applied to the States. The United States has inter-
vened to defend the constitutionality of RLUIPA. Al-
though the motions to dismiss filed in cases C-2-95-517
and C-2-98-275 were originally to have been decided by
the undersigned in a final decision, as authorized by 28
U.S.C. § 636(c), the United States did not consent to that
disposition. Thus, this Report and Recommendation is
being issued pursuant to 28 U.S.C. § 636(b)(1)(B) and
Eastern Division Order 95-2. For the following reasons,
it will be recommended that the motions to dismiss plain-
tiffs’ RLUIPA claims be denied.
IL.
Although the defendants styled their motion as one
to dismiss, both they and the plaintiffs [**3] have sub-
mitted evidentiary materials outside the pleadings. There
are disputes about the admissibility of some of this mate-
rial. The Court's dispostion of the motion is not primarily
fact-based, and it moots the parties’ dispute about eviden-
tiary materials. The Court will set forth only those facts
necessary to put the legal issues into context. Most, if not
all, of the facts recited below are not disputed and many
have been stipulated.
A. Current Plaintiffs and Ohio's Experience Under
RFRA :
In Gerhardt, Case No. C2-95-517, the plaintiff is a
member and ordained minister of the Church of Jesus
n> ct ee
=
~
Page 6
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
Christ Christian ("CJCC"), a subdenomination of the
Christian Identity movement. This church espouses the-
“ty contrary to more traditional Christian dogma, includ-
ing a belief that the races should be separated, and seeks
to advance these beliefs throughthe Aryan Nation, the
church's political division. In Miller, Case No. C2-98-
275, members of the plaintiff class are followers of the
Asatru religion, also known as Odinism, Vor Tru, or
Troth. This polytheistic religion of Northern Europe
originated with the Vikings and includes Thor, the Norse
God of Thunder, among its pantheon of [**4] gods. Fi-
nally, in Hampton, Case No. C2-97-382, plaintiff J. Lee
Hampton is a member of the Wiccan religion and a prac-
ticing "witch," while plaintiff Jon B. Cutter is an avowed
Satanist. For purposes of the instant motion, defendants
concede that these are bona fide religions and that the
plaintiffs do genuinely hold these beliefs. It is also un-
disputed that the defendants have refused to grant some
or all of the religious requests made by the plaintiffs.
The defendants assert that the denial of many of the
plaintiffs’ requests was justified because the practices
and/ or articles in question pose a security risk to the
institution, either by advancing inflammatory practices or
ideologies tending to incite violence or by sheltering
otherwise illicit gang activity. For example, defendants
claim that the practice of Asatru has been tied to the
1993 riot at the Southern Ohio Correctional Facility, as
well as various murders, escapes, or attempted escapes at
the Madison, Trumbull, Lebanon, and Mansfield Correc-
tional Institutions. Similarly, the defendants contend that
the CJCC is affiliated with the Aryan Brotherhood, a
group allegedly involved in criminal activity and vio-
lence [**5] within the Ohio prison system. Both groups
are allegedly linked to white supremacist activities and
violent crime in the public at large. Plaintiffs, [*834]
however, deny that their respective religions are involved
with any violent activity, condone or espouse any act of
violence, or pose any security threat to the various cor-
rectional institutions of the Ohio prison system. Al-
though both parties discuss these issues in their memo-
randa, the Court is not required to determine, in the con-
text of the pending motions to dismiss, the relationship,
if any, between plaintiffs’ religious beliefs and prison
security. Rather, the issue is whether defendants must
meet RLUIPA's higher standard of justifying security-
based restrictions on religion, or only the lower pre-
RLUIPA standard.
The defendants also detail the allegedly onerous ef-
fects that Congress’ last effort to legislate a higher stan-
dard of scrutiny to evaluate prisons’ efforts to regulate
inmates’ religious practices - the Religious Freedom Res-
toration Act, or RFRA - imposed upon ODRC operations
and staff before its application to the States was declared
unconstitutional in Boerne v. Flores, 521 U.S. 507
(1993). According [**6] to defendants, the number of
religions espoused by Ohio prisoners proliferated under
RFRA, and the religions in question often demanded
distinctly unorthodox religious services and items, such
as martial arts classes. Furthermore, a considerable
amount of state resources were consumed addressing
prisoner litigation efforts. According to defendants,
ODRC religious administrators were spending between
75 and 90 percent of their time addressing RFRA litiga-
tion and operational issues, forcing them to neglect their
other religious duties. In one case alone, ODRC and
Ohio Department of Youth Services employees spent
more than 125 hours in connection with depositions and
more than 900 hours responding to over 300 separate
document requests. More than 70 cases involving RFRA
were active during this same time period. The signifi-
cance, if any, of these matters to the constitutionality of
RLUIPA will be addressed below.
B. History and Enactment of RLUIPA
In 1993, in response to the Supreme Court's decision
in Employment Div., Dept. of Human Resources of Ore-
gon ». Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct.
1595 (1990), Congress enacted the Religious Freedom
Restoration [**7] Act ("RFRA"), 42 U.S.C. 2000bb et
seq. pursuant to either its Enforcement Power or Preven-
tive Power under § 5 of the Fourteenth Amendment. In
Smith, the Supreme Court held that a law of general ap-
plicability, such as Oregon's law precluding employees
who were terminated for "good cause" from receiving
unemployment benefits, need not be supported by a
“compelling state interest" in order to pass constitutional
muster. RFRA outlawed governmental attempts to "sub-
stantially burden" any person's exercise of religion,
“even if the burden results from a rule of general appli-
cability," unless the law furthered a compelling state
interest and was the least restrictive means of furthering
that interest. The Supreme Court, however, held in
Boerne that this legislative attempt by Congress ex-
ceeded its power to legislate under Section 5 of the Four-
teenth Amendment, and that the statute was therefore
unconstitutional as applied to the States. Soerne, 52/
US. at 536.
Congress subsequently attempted to enact simar or
identical statutes pursuant to other enumerated powers.
The first bills, S. 2148 and H.R. 4019 (105th Congress)
(entitled the [**8] Religious Liberty Protection Acts),
apparently died of neglect during the Clinton impeach-
ment proceedings and failed to move out of committee in
either House of The 1999 versions, S. 2081
and H.R. 1691 (106th Congress), passed the House but
failed to clear the Senate, drawing substantial opposition
[*835] from various civil rights groups who feared the
Page 7
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
The following year, after considering testimony
about the difficulties that various institutionalized indi-
viduals experienced in practicing their faith, the Senate
passed a bill limiting the applicability of the proposed
legislation to state actions affecting land use and the in-
stitutionalized. As it relates to institutionalized persons,
the Act contains a textual provision virtually identical to
RFRA, but premises its authority on the spending and
commerce powers entrusted to Congress under the Con-
stitution. Thus, it prohibits governments from imposing,
for any but compelling reasons, substantial burdens on
the religious exercise of institutionalized persons if those
burdens are “imposed in a program or activity that re-
ceives Federal financial assistance, or [**9] if the bur-
den affects interstate or foreign commerce or commerce
with Indian tribes." 42 U.S.C. § 2000cc-1(b). Further-
more, although it provides judicial remedies for unneces-
Sary restrictions on religious liberty, Congress specifi-
cally noted that it expected the federal courts, when con-
sidering potential claims of the institutionalized, to "con-
tinue the tradition of giving due deference to the experi-
ence and expertise of prison and jail administrators in
establishing necessary regulations and procedures to
maintain good order, security, and discipline, consistent
with consideration of costs and limited resources.” Joint
Statement, 146 Cong. Rec. at S7775. Senate Bill S. 2869
(106th Congress) was not considered by committee but
was passed on July 27, 2000 after only 47 minutes of
debate. It was transmitted to the House that same eve-
ning and was passed, again without committee consid-
eration, 16 minutes later. With President Clinton's signa-
ture, the bill became law effective September 22, 2000
and is codified at 42 U.S.C. § 2000cc et seq.
C. ODRC Funding and Operations
Because RLUIPA was passed by Congress as an ex-
ercise [**10] of its Commerce and/ or Spending Power,
the parties have submitted evidence relating to (1) the
degree to which the ODRC receives federal financial
support and the source of any such funds, and (2) the
extent to which the ODRC conducts activities which may
be construed to constitute interstate commerce. See Joint
Stipulation, C2-97-382 File doc # 93, C2-95-517 File
doc. # 106. The Joint Stipulation has been supplemented
by a subsequent affidavit filed by Horst Gienapp, Grants
Administrator for the ODRC. (C2-98-275 File doc. #
190). The pertinent facts are as follows.
1. Federal Funding of ODRC
Congress regularly provides grants to the ODRC to
achieve a number of different objectives, either as direct
grants from a federal agency to the ODRC or as federal
funds generally allocated to other Ohio
which are subsequently transferred to the ODRC. The
purpose of any given grant is usually gleaned from one
of two sources: the Catalog of Federal Domestic Assis-
tance, jointly published by the United States General
Services Administration, the Executive Office of the
President, and the Office of Management and Budget, or
by an individualized statement accompanying the grant
(**11]} articulating what aspect of ODRC operations the
particular federal agency is intending to fund. As of Sep-
tember 22, 2000, the effective date of RLUIPA, the
ODRC apparently had received 22 different federal
grants. Second Affidavit of Horst Gienapp at 2.
Of these 22 grants, some are directed to support
generalized construction, research, and operational ef-
forts of the ODRC and, as a result, are not given or ex-
pended directly to fund specific prison inmate programs.
Two of the largest of such grants are the Violent Of-
fender Incarceration and [*836] Truth In Sentencing
Incentive Grants ("VOI/ TIS") and the State Criminal
Alien Assistance Program ("SCAAP"). The former, pro-
vided by the United States Department of Justice, is in-
tended to provide states with funds to build or expand
violent offender confinement capacity. Ohio has received
approximately $ 69,000,000 over the last three years
under the program; over $ 12,000,000 was applied for
and awarded for the current year but has not yet been
received. The latter program reimburses the ODRC for
costs it incurs to incarcerate aliens convicted of felonies
in Ohio. Under this program, Ohio traditionally receives
an annual award of approximately [**12] $ 1,000,000. It
received $ 1,300,000 last year. The most recent applica-
tion for funds under this program is still pending. Similar
federal funding efforts are intended to create and main-
tam support programs for ODRC staff, such as stress
management programs. A second broad category of fed-
eral grants are specifically allocated to support prisoner
education, vocational training and assistance, and drug
treatment programs. A third and final broad category of
grants go directly to support prisoner subsistence. These
include monthly grants under the Federal School Break-
fast Program and the Federal School Lunch Program,
currently totaling more than $ 1,200,000.
Federal grant programs generally require the ODRC
to submit applications for these various grants. This pro-
cedure, pending i continuation of the pro-
grams and approval of the ODRC's request, involves a
delay between request for and receipt of the relevant
funds. Although the ODRC made applications for and
was awarded federal grants after September 22, 2000, as
of the date of the stipulation it had not received any
funds pursuant to applications made after RLUIPA's ef-
fective date. The ODRC, however, expects to continue
[**13] to apply for funds under these programs and,
assuming continued Congressional support, expects to
receive such funds. It may have done so by ive date of
this Report and Recommendation.
Page 8
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
2. ODRC's Relationship with Interstate Commerce
The ODRC has established business agreements and
regularly conducts transactions in intrastate and interstate
commerce. The ODRC operates a program entitled Ohio
Prison Industries ("OPI") in which inmates produce
goods and services, some of which are sold to buyers
outside the ODRC. Often using raw materials produced
outside of Ohio, Ohio inmates produce products such as
shoes, beds, furniture, and mulch for the state of Ohio.
Although the state agencies generally pay the ODRC for
these goods, they do so at a cost allowing the state to
recognize substantial savings. For example, Ohio
achieves savings of approximately $ 1,000,000 annually
by purchasing highway safety reflectors produced and/ or
recycled by OPI. The ODRC also sells some of these
to departments of corrections in other states.
The ODRC has provided computer data-entry services to
Unibase, a Utah Corporation, under a program main-
tained since 1987. Approximately 80 to 100 inmates
[**14] at the Lebanon Correctional Institution and 50
inmates at the London Correctional Institution currently
participate in the program. An additional 50 inmates at
the Ohio Reformatory for Women are expected to enter
the program shortly. Inmates also provide various ser-
vices to Ohio departments, such as attaching snowplows
and salt spreaders to state vehicles, and the ODRC is
paid for these services.
Like any institution, the ODRC engages in com-
merce by acquiring the goods and services it requires to
operate. Although each ODRC institution is largely re-
sponsible for its own purchasing, [*837] some expendi-
tures in interstate commerce may be generalized among
the state's correctional facilities. For example, Orient
Correctional Institution's ("OCI") regular purchase of
computers and motor vehicles, including two such vehi-
cles last year, is representative of purchasing at the other
institutions. Although OCI and Pickaway Correctional
Institution ("PCI"), as the location of Frasier Medical
Center, incur somewhat di j medical ex-
penses (amounting to approximately $ 2,000,000 annu-
ally, with an additional $ 20,000 to $ 60,000 spent
monthly on mental health medications), all of the
ODRC's [**15] facilities purchase a substantial amount
of medical supplies and pharmaceuticals in interstate
commerce. Ameritech and Quest, both non-Ohio compa-
nies, are paid approximately $ 1,800 and $ 500 per
month, respectively, for providing ODRC facilities with
local and long-distance telephone service. ODRC also
enjoys an exclusive contract with MCI, an interstate cor-
poration, by which it receives a percentage of the reve-
nue attributable to the collect calls placed by the prison
population to locations inside and outside of Ohio. The
ODRC also engages outside corporations to manage
Ohio prisons. Management and Training Corporation, a
Utah corporation, is paid a per diem of $ 36.40 to operate -
the 1380 beds at the Lake Erie Correctional Institution in
Conneaut, while CiviGenics Corporation, a Massachu-
setts corporation, is paid $ 55.39 a day to operate the 552
beds at the North Coast Correctional Treatment Facility
in Grafton. No plaintiff in the instant action, however,
has been incarcerated at either of those two facilities.
Finally, the ODRC enjoys interstate relationships
and engagements providing for the housing and subse-
quent evaluation of its prison population. Ohio is a
member of an interstate [**16] corrections compact,
pursuant to O.R.C. § 5120.50, which provides for
agreements between Ohio and twenty other states to ex-
change and house prisoners or _ reciprocal basis, and
Ohio currently houses and excha. »:s prisoners under the
program. A similar agreement with the Federal Board of
Prisons currently provides for reciprocal housing of state
and federal prisoners, and prisoners are currently incar-
cerated under this program. Finally, Ohio enjoys coop-
erative arrangements with other states involving the
evaluation and monitoring of prisoners currently released
on probation or parole, and thousands of such individuals
are involved in these programs annually. The plaintiffs
do not contend that these compacts and agreements sub-
stantially burden their ability to exercise their religion.
Il.
One of plaintiffs’ claims is that ODRC's actions vio-
late the Ohio Constitution. Defendants have moved to
dismiss these claims on Eleventh Amendment grounds
and under O.R.C. § 9.86. Plaintiffs’ memorandum does
not offer any response to these arguinents. Because it
appears that plaintiffs do not oppose the dismissal of
their Ohio constitutional claims, it will be recommended
that defendants’ motion [**17] be granted as to these
claims.
Il.
A. Introduction
After the parties fully briefed the constitutionality of
RLUIPA as an issue of first impression, the United
States District Court for the Eastern District of Califor-
nia, in Mayweathers v. Terhune, 2001 U.S. Dist. LEXIS
22300, 2001 WL 804140 (July 2, 2001), rejected the
same constitutional challenges raised by the defendants
here. This Court is in full agreement with the result
reached in Mayweathers, at least to the extent that it ad-
dresses the same issues decided in this Report and Rec-
ommendation, but because these issues have not been
addressed by [*838] any other courts, this Court's
analysis of the Spending Clause issue will be somewhat
more detailed.
Additionally, plaintiffs have raised an issue about
the ripeness of the defendants’ motion. They argue that
Page 9
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
the issue of RLUIPA's constitutionality is not ripe for
decision because if defendants can demonstrate "that the
plaintiffs’ religious claims are merely a ‘cover’ for gang
activities, ... this Court can decide this case on non-
statutory and non-constitutional grounds." Plaintiffs’
Joint Reply, at 12.
Apparently, plaintiffs’ position is that if a claim as-
serted in a complaint may [**18] eventually turn out to
be factually unsupported, the Court should defer a deci-
sion on the legal sufficiency of the claim until the facts
can be evaluated either through a summary judgment
motion or at trial. To do so would be to deprive a defen-
dant of the right to have a claim's legal sufficiency tested
by way of a motion to dismiss, and would force a defen-
dant to litigate the claim even if the facts alleged by the
plaintiff would not support recovery. That is why
Fed.R.Civ.P. 12(b)(6) allows motions to dismiss, and
also why plaintiffs have not advanced a valid reason to
delay a decision on defendants’ motion.
B. General Principles
Envisioning a government where the legislature
would be but one of three co-equal branches, the Framers
established limits on congressional legislative power "in
order to ensure protection of our fundamental liberties."
Gregory v. Ashcroft, 501 U.S. 452, 458, 115 L. Ed 2d
410, 111 S. Ct. 2395 (1991) (quoting Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 87 L. Ed. 2d 171, 105
S. Ct. 3142 (1985) (internal quotation marks omitted)).
[HN1] It follows from the constitutionally-mandated
division of authority among [**19] the three branches of
the federal government, as well as from the division of
governmental power between the federal government
and the states, that Congressional acts are valid only
when effectuated through one or more specifically enu-
merated Constitutional powers. "The powers of the legis-
lature are defined and limited; and that those limits may
not be mistaken or forgotten, the constitution is written."
Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed.
60 (1803). However, an act of Congress is presumptively
constitutional and should only be invalidated™when it is
clear Congress exceeded its enumerated powers in pass-
ing such legislation. United States v. Morrison, 529 U.S.
598, 607, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000);
United States v. Harris, 106 U.S. 629, 635, 27 L. Ed.
290, 1 S. Ct. 601, 4 Ky. L. Rptr. 739 (1883). The Court
must therefore determine whether Congress exceeded its
Commerce Clause and/ or Spending Clause powers in
enacting RLUIPA.
C. Commerce Clause
Congress asserted that it enacted RLUIPA pursuant
to its Commerce Clause power, see 42 U.S.C. § 2000cc-
1(b)(2), and plaintiffs contend that [**20] such effort
was constitutional. Defendants, however, contend that
the statute, as written and as applied to the ODRC's regu-
lation of inmates’ religious exercise, exceeds Congress's
powers under the Commerce Clause.
The Commerce Clause issue in this case is fairly
narrow. [HN2] Congress may constitutionally regulate
three main areas or activities of "commerce." First, Con-
gress may regulate the channels of interstate commerce.
See United States v. Lopez, 514 U.S. 549, 558, 131 L.
Ed. 2d 626, 115 S. Ct. 1624 (1995); Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 256-257, 13 L.
Ed. 2d 258, 85 S. Ct. 348 (1965). Second, Congress may
regulate to protect the instrumentalities of interstate
commerce, or persons or things involved in interstate
commerce, even though the threat being regulated
against arises from [*839] intrastate activities. Lopez,
514 U.S. at 558; Perez v. United States, 402 U.S. 146,
150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971). Finally,
Congress may regulate activities which have a "substan-
tial effect" on interstate commerce. Lopez, 5/4 U.S. at
558-559; Morrison, 529 U.S. at 608-609. [**21] Plain-
tiffs concede that Congress enacted RLUIPA as an ex-
ample of this last class of activities, seeking to remove
substantial burdens on religious practices by prisoners
which "affect" commerce. 42 U.S.C. § 2000cc-1(b)(2).
[HN3] In order for a statute constitutionally to regu-
late activities which have a substantial effect on inter-
state commerce, one of three prerequisites must be satis-
fied: (1) the relationship between the regulated activities
and interstate commerce must be readily apparent; (2)
Congress must have made specific and supportable fac-
tual findings concerning that relationship; or (3) the stat-
ute must place the burden on the party seeking enforce-
ment to allege and demonstrate that relationship. See
Lopez, supra; Harrison, supra; see also United States v.
Riddle, 249 F.3d £29, 536 (6th Cir. 2001). The parties’
briefs focus on the third prerequisite, and raise issues
both about the sufficiency of the statutory language and
the likelihood that ODRC's limitations on inmates’ reli-
gious exercise could ever be shown to have a substantial
effect on interstate commerce.
Congress also enacted RLUIPA pursuant to its
[**22] authority under the Spending Clause. In the
Court's view, the Commerce Clause issues are the more
difficult, requiring substantial construction of the statu-
tery language and raising serious questions about the
relationship between the internal operation of state pris-
ons and interstate commerce. Because RLUIPA can be
found to be constitutional if it was a valid exercise of
Congress’ authority under either the Spending Clause or
the Commerce Clause, the undersigned will forego fur-
ther discussion of the Commerce Clause as being unnec-
essary to the Court's resolution of defendants’ motion to
dismiss.
Page 10
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
D. Spending Clause
[HN4] The Constitution also explicitly empowers
Congress to "provide for the ... general Welfare of the
United States." U.S. CONST. Art. I, § 8, cl. 1. The Su-
preme Court has long made clear that Congress may ex-
pend funds in areas or enterprises even though its consti-
tutional power to legislate that area or enterprise may be
limited: "the power of Congress to authorize expenditure
of public moneys for public purposes is not limited by
the direct grants of legislative power found in the Consti-
tution." United States v. Butler, 297 U.S. 1, 66, 80 L. Ed.
477, 56 S. Ct. 312, 4 Ohio Op. 401 (1936). [**23] In
making such expenditures, however, Congress may con-
stitutionally condition receipt of federal funds "upon
compliance by the recipient with federal statutory and
administrative directives" by the states "to further broad
policy objectives" Congress might not otherwise be able
to effect through direct legislation. Fullilove v.
Klutznick, 448 U.S. 448, 474, 65 L. Ed. 2d 902, 100 S.
Ct. 2758 (1980)(Burger, C.J.); see also South Dakota v.
Dole, 483 U.S. 203, 206-207, 97 L. Ed. 2d 171, 107 S.
Ct. 2793 (1987); Pennhurst State School and Hospital v.
Halderman, 451 U.S. 1, 16-17, 67 L. Ed. 2d 694, 101 S.
Ct. 1531 (1961). Despite this broad assertion, Congress’
spending power has never has never been viewed as
unlimited. The Supreme Court has identified four broad
constitutional circumscriptions of the spending power.
See, e.g., Dole, 483 U.S. at 207; Pennhurst, 451 U.S. at
17.
[HN5] The first limitation on this power is derived
from the language of the spending clause itself. See U.S.
CONST., Art. I, § 8, cl. 1. An exercise of the Spending
[*840] Power is permissible only when it is in the pur-
suit of "the ... general [**24] Welfare of the United
States." Dole, 483 U.S. at 207; see also Helvering v.
Davis, 301 U.S. 619, 640-641, 81 L. Ed. 1307, 57 S. Ct.
904 (1937); Butler, 297 U.S. at 65. The second limitation
requires that any conditions on the federal grant be
clearly presented to the States for their acceptance or
rejection along with the grant itself. Dole, 483 U.S. at
207. The third requirement is that the conditions on the
federal grant be related to the federal interest involved in
the various national projects or programs. New York v.
United States, 505 U.S. 144, 167, 120 L. Ed. 2d 120, 112
S. Ct. 2408 (1992); Dole, 483 U.S. at 207-208. The last
requirement is that Congress’ exercise of its Spending
Power not violate any other constitutional provision.
Dole, 483 U.S. at 208. The Court will separately discuss
each of these four limitations in light of defendants’ ar-
gument that RLUIPA represents an unconstitutional ex-
ercise of Congress’ Spending Power.
1. Pursuit of the General Welfare
Defendants do not seriously contend that RLUIPA
does not further the general welfare of [**25] the United
States. The Supreme Court has recognized that [HN6] a
determination of what constitutes the "general welfare”
of the citizens is left to Congress’ discretion "unless the
choice is clearly wrong [or] a display of arbitrary power
{rather than] an exercise of judgment." Helvering, 30]
U.S. at 640. The concept of the general welfare is not
static, and "needs that were narrow or parochial a century
ago may be interwoven in our day with the well-being of
the nation." /d., at 64]. Recent decisions have recognized
that "the level of deference to the congressional decision
is such that the Court has more recently questioned
whether ‘general welfare’ is a judicially enforceable re-
striction at all." Dole, 483 U.S. at 207 n. 2, citing Buck-
ley v. Valeo, 424 U.S. 1, 90-91, 46 L. Ed. 2d 659, 96 S.
Ct. 612 (1976) (per curiam). Consequently, [HN7] the
Court holds that RLUIPA is sufficiently related to the
general weliare of the United States to survive a constitu-
tional challenge on that ground.
2. Timely and Unambiguous Statement of Condi-
tions.
Although presented in Dole as a single element of
the four-point test, [HN8] the [**26] second requirement
actually encompasses the consideration of two interre-
lated constitutional concerns. First, any condition im-
posed by Congress on the receipt of federal funds must
be "unambiguous" so that "states [may] exercise their
choice knowingly, cognizant of the consequences of their
participation." Pennhurst, 45] U.S. at 17; see also Dole,
483 U.S. at 207. Thus, a state must be able "to ascertain
what is expected of it" by the language of the statute.
Pennhurst, 451 U.S. at 17. Consequently, the conditions
must be articulated in a way that allows a state to be cer-
taiu of the consequences of its obligation to enforce the
requirement. Second, such conditions may not be im-
posed on the states after the funds have been received.
"Though Congress’ power to legislate under the spending
power is broad, it does not include surprising participat-
ing States with post acceptance or ‘retroactive’ condi-
tions." Pennhurst, 451 U.S. at 25. Defendants contend
that the application of RLUIPA in this case offends the
Constitution on both grounds and, as a result, the second
prong of the Dole test cannot be met.
Taking these [**27] issues in reverse order, the
Court turns first to the retroactivity issue. [*841] Both
plaintiffs and the United States concede that RLUIPA
was not intended to apply to federal funds disbursed
prior to its effective date and that it could not constitu-
tionally do so. However, the plaintiffs are seeking only
prospective relief under RLUIPA. Defendants have
stipulated that, after RLUIPA's effective date, and even
after plaintiffs amended their complaint to include a
claim under RLUIPA, they made additional applications
Page 11
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
for federal funds. Although, at the time the parties en-
tered into their stipulations, defendants had not actually
received any funds pursuant to their post-RLUIPA appli-
cations, defendants acknowledged that they expected to
receive such funds as early as August, 2001, the month
in which this Report and Recommendation is being is-
sued, and that they will continue their long-standing
practice of applying for and receiving federal funds as
this lawsuit progresses. Consequently, this case clearly
presents the question of whether Congress intended to
condition the receipt of those funds applied for and dis-
bursed after September 22, 2000 upon compliance with
RLUIPA, and whether it did [**28] so in a constitu-
tional manner. In short, no retroactivity issue is raised by
the facts of this case.
The more serious issue raised by defendants' motion
is whether the first prong of the "notice" criterion has
been satisfied. Defendants present two arguments: (1)
that RLUIPA's language is not sufficiently clear to ad-
vise the states that compliance with RLUIPA is a condi-
tion attached to the receipt of federal funds; and (2) even
if the language is clear enough to advise the states that
they are receiving funds conditioned upon compliance
with RLUIPA, what amounts to "compliance" is so
vague and fact-specific that the states cannot reasonably
comprehend what obligations they are accepting if they
continue to receive federal funds to be used in prison
operations. Neither of these arguments has merit.
Defendants’ first argument relies heavily on the
Pennhurst case. Pennhurst held that a specific section of
the Developmentally Disabled Assistance and Bill of
Rights Act of 1975, 42 U.S.C. § § 6000 et seq., was not
intended to be an enforceable condition on the states’
receipt of federal funds under that Act. In so holding, the
Court contrasted the language [**29] of the "Bill of
Rights” portion of the Act, 42 U.S.C. § 60/0, with other
sections of the same statute, and observed that "noticea-
bly absent from § 6010 is any language suggesting that §
6010 is a ‘condition’ for the receipt of federal funding
under the Act." Pennhurst, 45] U.S. at 13. The Court
also examined the relevant legislative history and the
overall structure of the Act, and reached the conclusion
that although Congress intended other provisions of the
Act to impose new legal duties upon states which ac-
cepted funding under the Act, § 6010 did not do so. /d.
at 21-27. Defendants assert that this case is controlled by
Pennhurst because the drafters of RLUIPA failed to use
the word "condition" or an equivalent term, and that
Pennhurst requires any expression of Congressional in-
tent to be that precise. See also Dole, 483 U.S. at 208
(noting that "the conditions upon which States receive
the funds [under 23 U.S.C. § 158, which explicitly di-
rects the Secretary of Transportation to withhold funds
from states in which persons under the age of 21 are
permitted to purchase or [**30] possess alcoholic bever-
ages] ... could not be more clearly stated by Congress").
A common-sense reading of RLUIPA as a whole is
sufficient to refute defendants’ argument. 42 U.S.C. §
2000cc-1, the specific section of RLUIPA which applies
to institutionalized persons, begins with these [*842]
words: "No government shall impose a substantial bur-
den on the religious exercise of a person .. confined in
an institution ...." To argue that such language is a mere
"congressional preference for certain kinds of treatment"
as opposed to language which "creates rights and obliga-
tions," Pennhurst, 451 U.S. at 18-19, is to ignore the
plain meaning of the phrase "no government shall ...."
[HN9] "Shall" is quintessentially a word associated with
obligations and rights. The creation of a private right of
action in § 2000cc-2 to enforce this obligation ("[a] per-
son may assert a violation ... as a claim ... in a judicial
proceeding and obtain appropriate relief against a gov-
ernment") certainly suggests that Congress intended
states receiving federal funds for prison programs or ac-
tivities to be held accountable for breaching the obliga-
tion set forth in § 2000cc-1. [**31] Finally, § §
2000cc-3 (c) and (d) would be entirely unnecessary if the
statute were simply intended to "nudge" the states in the
direction of imposing lesser burdens on the free exercise
of religion by institutionalized persons, Pennhurst, 45]
U.S. at 19, quoting Rosado v. Wyman, 397 U.S. 397,
413, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970). Those sub-
sections make it clear that the Act "may require a gov-
ernment to incur expenses in its own operations to avoid
imposing a substantial burden on religious exercise" and
that the only activity affected by the Act is that of "a
government as a condition of receiving funding or other
assistance [for its programs or activities]" (emphasis
supplied). The language of RLUIPA, fairly read, strongly
evinces Congress’ intent "to require the States to fund
new, substantial rights," Pennhurst, 45] U.S. at 18, and
therefore makes it clear to states which continue to apply
for federal funding for prison programs that they will be
subject to RLUIPA.
Furthermore, the language used in the Act closely
parallels other federal statutes conditioning federal fund-
ing that have long been deemed to satisfy [**32] the
notice requirement. See, e.g., Davis v. Monroe County
Bd. Of Educ., 526 U.S. 629, 649-650, 143 L. Ed. 2d 839,
119 S. Ct. 166] (1999) (involving Title IX, 20 U.S.C. §
168] (a), which states that "No person in the United
States shall, on the basis of sex, be excluded from par-
ticipation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance"); Guardians Ass'n
v. Civil Service Com'n of City of New York, 463 U-.S.
582, 598-599, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1983)
(involving Title VI, 42 U.S.C. § 2000d, which states,
Page 12
221 F. Supp. 2d 827, *; 2001 U.S. Dist. LEXIS 24489, **
"No person in the United States shall, on the ground of
race, color, or national origin, be excluded from partici-
pation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance"). Consequently, [HN10] the
Court holds that RLUIPA adequately expresses Con-
gress’ intent to condition further payment of federal
funds to state prison programs upon the states’ compli-
ance with RLUIPA.
Assuming that Congress did intend to make the
states’ [**33] continued receipt of funds for prison ac-
tivities or programs conditional upon compliance with
RLUIPA, defendants argue that the wording of the stat-
ute is too vague to allow them to make an informed
choice as to whether or not to accept such funds. In the
memorandum supporting the motion to dismiss, defen-
dants, relying on dictum from Pennhurst, argue that the
requirement that they use the "least restrictive means" to
implement otherwise permissible restrictions on an in-
mate's exercise of religion "is so context-driven and sub-
jective as to be no standard at all ...." Defendants’ Memo-
randum, at 27. In th
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