# Petition for Writ of Certiorari — Cutter v. Wilkinson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 544 U.S. 709 ## Text gene <1 6) hheCEIVED » poate iS “n> Qe OLD In T suPRtin nf US, ©” 2 o¢ Mane Court of tl POLICE DEPARTMENT + 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 + 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 —+ 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 ee ia Cee nik ecu wi eedeSebenedepereseneeseoceeecesces iv 66 nee cece ecccavsvcvewccncesesseyestes 1 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 Ee ae ea Ss I so 05 bys vob nda chide 0%4dkd cieceubs ober 15 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. Al [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A02. Public record. Not legal advice.