# Opposition Brief — Cutter v. Wilkinson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 709

## Text

Sudreme Cou" Use |

ORAL yuu 1920

OFFICE OF THE CLERK

No. 03-9877

In The Supreme Court Of The United States

JON B. CUTTER, et al.,
Petitioners,
v.

REGINALD WILKINSON, et a/.,
Respondents.

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF IN RESPONSE TO

PETITION FOR A WRIT OF CERTIORARI

JIM PETRO
A.iomey General of Ohio
DOUGLAS R. COLE*
State Solicitor

*Counsel of Record
STEPHEN P. CARNEY
Senior Deputy Solicitor
TODD R. MARTI
Assistant Solicitor
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax

Counsel for Respondents

——===sTEn |
RECEIVED

JUL 26 2004

OFSICE OF THE CLERK
SUPREME CU" U

QUESTION PRESENTED

Does application of the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), codified in relevant part at 42 U.S.C. § 2000cc-1, to prisons violate the
Establishment Clause or other constitutional limitations on Congress's powers?

TABLE OF CONTENTS

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I. The Court should grant certiorari here to properly resolve the circuit split

regarding RLUIPA’s validity under the Establishment Clause. ....................ccccccseeeeeeeeeeeees 8

A. The Establishment Clause question is ripe for review. ............cccccceseeeeseeeseneeeeeseees 8

B. This case is needed to ensure full review of the Establishment Clause issue........ 10

II. The Court should review the other constitutional issues regarding RLUIPA’s validity,
such as challenges under the Spending and Commerce Clauses and the Tenth and
OES FI, cccccercesnizinicennccnsiscncnmvisnninsnentesnibeneiiinemmnnitiapiianseiliitininlenammbimainiies 14

A. The Court should fully resolve RLUIPA’s validity now, without allowing
uncertainty to continue, and without allowing for inconsistent decisions by the

EIN nxiscnntesicssenesisbsecesestscnpeneieneeniatiapscingisieieeianiahiiesigiabinaseasdiiagseiabeiadgianeiiiiabaadicnmeuahel 14

B. This case is needed to properly reach the other questions about RLUIPA’s
WTI scsasincnsesssnicesenimntnretitellissiuianstantitinnsticisaiviansactiiemisiinbaitiesiiatinebalaabiininiaasal 18
Conclusion aba kriiclatniccninlataiabcrel VERN 5a eoemaen cores ae oan setietniiettnieicnemnaiieiandiineieil 21

TABLE OF AUTHORITIES

Cases Page(s)
Alabama v. Shelton,

DID UTE. CBG CI ov ccscensescnsscesesectesecesesovesuniascersessesneetstiestensiehinantnmmimnnaaaaat 11
Alameen v. v. Coughlin,

O02 F. Samp. S40 (E.DN.Y... 1DDG) .cecccnvcsesesecssoseccresossensvenesssesesssesesennnnensmcsscsnensseates 15, 16
Alameida v. Mavweathers,

OGG. Ce Cb Gian ccccceseseserssessonsonssncsessnsnenesessctscsebedinisnsennssenitstinssnissniiaimnesssansnnaaanaals 18
Becker v. Montgomery,

SIS UIE. TET GOB I ccececessrecsccesseestsmcsssseastinintnnana 11
Blum v. Bacon,

GBF US. CED Caio wceccesessocensnssrscsctnennsnenscatienssetiinsiuatiainnessninnetiniamanae 19
Charles v. Verhagen,

DEB FDO GGG CA CW. BUD ecovncnviccvinsnscsessicescsersssrnanstnsntiasiassiiiinemameatiamnaaiamal 8, 10
City of Boerne v. Flores,

S21 U.S. SO7 (BGV7).......00020.c2ccccesesccessecesesasneesnenscsssessesssesetossenssessneseneseenseteseeessenssssseninene 9,15
Corporation of the Presiding Bishop v. Amos,

GP UE. SF GFT i vccentnsstnsnscnesnssttacicsitancentntaaenitiaasdeiimiasiaadanaan 7,9, 10,12
Cutter v. Wilkinson,

DED FT 3B TBF CBR CR. FG serccscscctsnssircsesinticvnidminesiianll passim
EEOC v. Catholic University of America,

BD PDB GEG GL. Cie, Be ccereccesccesscctnnscnsnscnsvinntitttissnissticcmapsnpenieaiiaiamaeae 9
Employment Div., Dept. of Human Services v. Smith,

GBB US. GIS CIGD ccccrccvsiscencscssnsichirtinisemtintinnssninnisisiniiinacsssinnsiansipaammaaiaaaia 15
Estate of Thornton v. Caldor, Inc.,

GTS UB. FOB Cie cccicvsecncsccntnsntmncnsiicseniasnsninissibiiintiiiitaamsaiiiaaa ae 5,11, 12
Flores v. City of Boerne,

FO PDS CEES Co Cis, BOGE cccccccsccsncecsnnssnsivescccsssintsininenssnsnsssinisusnastaiapiiiaieaiaea 9
Fraise v. Terhune,

SED BBB SEB Can Cie. FTP ccccsetcccccarncsssassenssessocstestaieitinennininiisiaan 15

ill

Page(s)

Gerhardt v. Lazaroff,

221 F. Supp. 2d 827 (S.D. Ohio 2002) ..............sessessssssessessserseserseeneensensesssssessersnsease 5,6, 12
In re Young,

Be ee Ge, BEI sicceesnsccccectotscsccsnsesescscorsscsesscccsescseccesessencessnsnsntasossonsoussensoncesentes 9
Johnson v. Martin,

2002 U.S. Dist. Lexis 19246 (W.D. Mich. 2002)............:ccccccccsscssserseeserseeeeesensensensseensseees 13
Lemon v. Kurtzman,

I eR crccsttcennseccssrencstnscntscecennsepnncinssesunssesencncsevsugiennsusistnaguncenenasoonmacnnnequasetnseel 9
Locke v. Davey,

es Be Ce irectencncesececcescnssenccnnsnnssecsesatsensecinnsntnesncenenetancanentpentenvateettiatenensssnseneet 11
Madison v. Riter,

240 F. Supp. 2d 566 (W.D. Va. 2003) .............c.cessecrsecercecserecsercercesensnssesssnsnesesonsscssssosenses 10
Madison v. Riter,

Se I CIID ccnssinsinisescovecceccsccsnsncessenntnetvesnsstecrnenccenoninietnnnnmencssssmngnenetl 8,9, 10
Marria v. Broaddus,

200 F. Sepp. 24 280 (S.D.N.Y.. 2002).......20...000c.ccccecsessnsessesecserecesecsnssnscoscrossscsnsocscesossosssess 13
Marria v. Broaddus,

2003 U.S. Dist. Lexis 13329 (S.D.N.Y. July 31, 2003).............ccccssscessessreesresereeeeeeeeeneees 16
Mayweathers v. Newland,

Sn IIIT, TID ns ssnenscnistcnsehsiconseistbenanensstdensienntennantpunndietienbnnabiieniel 8,9, 10
Murphy v. Missouri Dept. of Corrections,

2004 U.S. App. Lexis 12239 (Jume 22, 2004).............c..ececssrsssscceccnsensensensensserenenssessoseooes 16
O'Lone v. Estate of Shabazz,

482 U.S. 342 (1987)........... setepeniitahisnestititindaabeniasvaesiaiaintiniipindiacdbaeantiinaionaiiiaaaiiaentinie 14
Sabri v. United States,

A II sccneciesesbngindsneninntibnnitaiiiictentanenenanpsnunibiessasillitkcetnaimbiaalp Sattiens 18
Turner v. Safley,

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Wolff v. McDonell,

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iv

Statutes Page(s)

ae We Se ccicniticscnerssssninisseihicescaneebinidiaelcaeniitetlehiaieinaittapdeiidcidicidesidibasiibinanhiamandeismiaaniasalaadla 4
ice ab eT te ceninovsnsansiciiniiniacsiiacanihahiensibanbasaliishidaucnpeneaindiadiniiundianitniniabianatiistaininmmsdiiamiiddanets 4
Eck: Ur TTI Anise cctcsccsieiepeiaaipicbisinenilatiy eg entiaembiadtenibatisiniadmbalddtastensabibeiieiadtidaiiciesmataieiasuosinnsiade 4
42 U.S.C. § 2000cc-1 (Religious Land Use and Institutionalized Persons Act) .................+: passim
Other Authorities

F. Easterbrook, Ways of Criticizing the Court,
es Ce Se NTI iacesestnshsicnpiniterslecienitnebietaniindenecnncisivinetibinhmiaveneiapeastiindepimegpiaenabanndia 17

E. Hartnett, A Matter Of Judgment, Not A Matter Of Opinion,
re eae I. CN asidniiiecicnebnenessunanneninsiaictinainintmnimaiatiaeisinipiyenmpinlsennnitatinbenaapiins 17

J. Katz, Tips on Managing Inmates: The Tricks of the Trade,
Corrections Managers’ Report, Vol. VII, No. 6 (April/May 2002) 83 .......0.......cccccceeeeeee 15

LY sere op >

INTRODUCTION

Respondents, Ohio prison officials (“Ohio”), agree with the Petitioner that the Court
should grant certiorari here, so that the Court may review whether the prison-specific provisions
of the Religious Land Use and Institutionalized Persons Act (RLUIPA) violate the Establishment
Clause. The circuits are squarely split on the question presented, and as the United States has
noted in a similar pending case, the “conflict is mature and entrenched,” and “[pJostponing
review is not likely to contribute to the reasoned resolution of the question presented.” See Brief
for the United States in Bass v. Madison, Case No. 03-1404 (petition pending). Indeed, just as
Respondent Ohio acquiesces here, both of the Bass Respondents—the United States and the
private plaintiff there—have likewise acquiesced in Bass. In sum, all of RLUIPA’s defenders
and antagonists, whether public or private, whether winners or losers below, are all of one voice
on the need for some review in some case, and Ohio joins that chorus.

Because the case for review has been strongly made by others in this case and in Bass,

Ohio’s response here focuses on what it considers to be the real questions raised by this Petition:

(1) should the Court grant certiorari in this case, even if it grants review in Bass, and (2) should
the Court also review the parties’ disagreement over several federalism issues concerning
RLUIPA, such as Congress’s power to enact RLUIPA under its Commerce Clause or Spending
Clause powers, and whether RLUIPA violates the States’ sovereignty and immunities under the
Tenth and Eleventh Amendments? Ohio submits that the answer to each question, even
considered separately, is yes. Considering them together, however, even more strongly
demonstrates the need for broader review and the need to include this case in that review.

This case is a necessary vehicle for properly resolving any of the constitutional questions

surrounding RLUIPA, even just the Establishment Clause question. That is because, as

explained below. the State of Virginia in Bass has adopted a theory of the Establishment
Clause—a hybnd of federalist theory and Establishment Clause concepts—that differs from the
traditional Establishment Clause position advanced by Ohio and adopted by the Sixth Circuit.
Ohio suggests that the Court's full consideration of the Establishment Clause question is best
served if both views are fully pressed by parties, and indeed, Ohio would advance both views if
this Petition is granted. But while Ohio does not disagree with Virginia’s view, Virginia
expressly disclaims Ohio’s position. Thus, if the Court grants certiorari in Bass only, it would
cut off representation of the only view that has been adopted by any circuit court in striking
RLUIPA. That seems a less-than-optimal approach to resolving the circuit split, given that the
decision below, operating on Ohio's theory, is what drives the need for review to begin with.

Further, the Court should review not only the Establishment Clause issue(s), but it should
also address whether RLUIPA is a valid exercise of Congress’s powers under the Commerce and
Spending Clauses and whether RLUIPA vioiates the Tenth and Eleventh Amendments. This is
true for several independent reasons. One is that the law governing prisoners’ Free Exercise
claims has zigzagged over the years, even more so than in most areas of changing law, as
Congress and the Court have now responded to each other several times in adjusting the standard
of review that applies to such claims. Another is that the Court should avoid the very real
possibility that, as explained below, piecemeal review of this statute could result in a situation in
which the law is upheld and remains on the books, even if a majority of the Court—albeit on
different grounds in different cases—finds the law unconstitutional.

If the Court agrees that full review is needed, so that the Court can address all of the
constitutional clouds swirling around RLUIPA, then it surely should review this case, as only this

case allows the Court to properly reach all of the federalism issues (under the Commerce and

Spending Clauses, and Tenth and Eleventh Amendments) regarding RLUIPA’s
(un)constitutionality. Because the Sixth Circuit struck RLUIPA in this case, Ohio, as
Respondent, should be allowed to raise the federalism issues as valid alternate grounds for
affirmance. By contrast, the State of Virginia is a Petitioner in Bass, and it seeks to raise those
and other issues as alternate grounds for reversal. While Ohio supports Virginia's effort to have
the entire law reviewed, it urges that only this case provides a proper vehicle to do so. Indeed,
the United States agrees with us on that score, as it expressly acknowledged in its Bass
acquiescence that only this case would properly raise the additional issues. We differ, though,
with the federal government on this: what the United States sees as vice, we urge as virtue.
They urge the Court to deny review here precisely to avoid the federalism issues, but again, such
avoidance is ill-advised.

In sum, the Court ought to fully address the constitutional challenges to RLUIPA, and

only this case allows it to do so. This Petition should be granted.

JURISDICTION

The district court actions giving rise to this petition were brought under 42 U.S.C. §
2000cc-1. so the district court had subject matter jurisdiction under 28 U.S.C. § 1331. The
distnct court order at issue was entered on February 26, 2002, and the defendants below, the
Respondents here, filed their notices of appeal in all three cases on March 1, 2002.

The court of appeals had jurisdiction on two separate grounds. First, the Defendants, all
State o/ficials, initially appealed (on March 1, 2002, as just noted) the denial of their claim of
so‘ ereign immunity. That provided appellate jurisdiction under the collateral order doctrine. In
addition, the distnct court later certified the issues presented here for interlocutory review under
28 U.S.C. § 1292(b). As the Petition notes, it did so on August 4, 2003. The Respondents then
timely petitioned the court of appeals to accept that alternate jurisdictional basis, and that petition
was granted.

A panel of the U.S. Court of Appeals for the Sixth Circuit declared RLUIPA
unconstitutional on November 7, 2003. Cutter v Wilkinson, 349 F.3d 257 (6th Cir. 2003), Pet.
App. A. The pnsoner-plaintiffs, who are now Petitioners here, sought rehearing, as did the
United States. Rehearing was denied on March 7, 2004.

Petitioners filed for certiorari on April 19, 2004, invoking this Court’s jurisdiction under

28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

This petition arises from three separate Free Exercise cases, brought by inmates
professing several different religions. In one case, Petitioner Cutter professes to adhere to
Satanism, and Petitioner Hampton is a Wiccan witch. In another, Petitioner Gerhardt professes
the white-supremacist beliefs of the Church of Jesus Christ Christian. The third case was
brought by a class of inmates, led by Petitioners Miller and Blankenship, all of whom claim to
practice Odinism/Asatru, which is based on the Norse/Viking polytheistic tradition. In each
case, the plaintiff(s) contested security measures that they claimed burdened their religious
practices in violation of RLUIPA’s prison provisions. Their cases were consolidated for the
purpose of determining that statute’s constitutionality. Gerhardt v. Lazaroff, 221 F. Supp.2d 827
(S.D. Ohio 2002) (district court opinion, incorporating Magistrate’s Report and
Recommendation) (also reproduced as Pet. App. B).

The defendant prison officials (“Ohio”), Respondents here, argued that RLUIPA violates
the Establishment Clause because Congress's choice to significantly elevate religious prisoners’
rights over those of their secular peers sends an unmistakable message of government
endorsement of religion. Further, Ohio urged that RLUIPA’s least-restrictive-means test
imposes unconstitutional burdens on third parties, in violation of the principles recognized in
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985). Ohio also argued that RLUIPA’s
requirements were insufficiently related to any federal funds sent to Ohio’s prisons, thus
undercutting any reliance on the Spending Clause as a basis to impose RLUIPA here, or as a
basis for overriding our Eleventh Amendment immunity from federal damages suits. Ohio also
urged that the religious burdens did not have a sufficient impact on interstate commerce to justify

application of the Act, and that even if such commercial effects were present, the means that

Congress chose to regulate those matters crossed the limits set by the Tenth Amendment. Ohio
also argued that we were protected from suit by sovereign immunity, because the Ex parte Young
fiction could not apply if RLUIPA was itself unconstitutional. That is, without a valid RLUIPA,
there would be no underlying violation of federal law to separate staie employees from their
employer's sovereign immunity. Also, Ohio argued that our Eleventh Amendment was not
waived by our purported acceptance of “related” federal funds under the Spending Clause, and of
course the Commerce Clause provides no basis for overriding the Eleventh Amendment.

Ohio submitted a large body of evidence to support all of its arguments. Ohio produced
affidavit and deposition testimony demonstrating the practical effect of the RFRA/RLUIPA
standard on our pnsons, including the ways it has motivated inmates to adopt religious postures
to circumvent anti-gang measures, the resulting degradations of security, and the significant
logistical problems that result when prison officials must evaluate myriad operational practices
under a least-restnictive-means standard. Ohio also produced evidence of similar effects in other
States’ pnson systems. including the results of a national survey on the topic.

Neither the pnsoner-plainuffs nor the United States, which intervened to defend
RLUIPA’s constitutionality, objected to or otherwise contested this evidence. Instead, they
submitted their own evidence on other points, and stipulated on yet other points. And of course,
they submitted arguments about the legal consequences of that evidence.

The Distnct Court, adopting the Magistrate's Report and Recommendation, rejected the
Establishment and Spending Clause challenges, along with the Tenth and Eleventh Amendment
challenges. See Gerhardt, 221 F. Supp. 2d at 831-32, Pet. App. B at 4. The District Court found

it unnecessary to reach the Commerce Clause issue. /d. at 832, Pet. App. B at 4.

See

- The Ohio Defendants took a timely interlocutory appeal based on their sovereign
immunity theory, which had the effect of bringing RLUIPA’s substantive validity before the
court of appeals through the collateral order doctrine. That jurisdictional basis was bolstered by
the district court's certification of an interlocutory appeal under 28 U.S.C. § 1292 and the Sixth
Circuit's acceptance of that certification. Cutter, 349 F.3d at 261, Pet. App. A at 3.

The Sixth Circuit held that RLUIPA violates the Establishment Clause because it has the
effect of sending a message of government endorsement of religion. /d. at 264-68, Pet. App. A
at 5-8. The court explained two bases for that holding. First, RLUIPA dramatically enhanced
the rights of religious inmates relative to their identically-situated secular peers, allowing
inmates who advance religion-based claims much greater chances of successfully compelling
changes to institutional practices. /d. at 265-66, Pet. App. A at 6-7. Second, the extent of that
preference encouraged inmates to become religious, or to pretend to, in order to enjoy those
advantages. /d. at 266-67, Pet. App. A at 7.

The Sixth Circuit also held that RLUIPA'’s elevation of religious prisoners’ nghts was not
a permissible burden-lifting accommodation under Corporation of the Presiding Bishop v. Amos,
483 U.S. 327 (1987). That conclusion also had two bases. First, unlike the measure considered
in Amos, RLUIPA was not necessary to avoid probable First Amendment violations. Cutter, 349
F.3d at 267, 268, Pet. App. A at 7, 8. Second, RLUIPA does not merely restore inmates to the
status they enjoyed before the imposition of a governmental burden on religious exercise—which
had been the effect of the law at issue in Amos—but instead, RLUIPA significantly increased
inmates’ rights beyond that baseline. /d.

The Petitioners and the United States each sought rehearing. The Sixth Circuit denied

rehearing, and the private Petitioners filed the Petition.

REASONS FOR GRANTING THE WRIT

l. The Court should grant certiorari here to properly resolve the circuit split
regarding RLUIPA’s validity under the Establishment Clause.

Although the Ohio Respondents disagree with the Petitioners’ ultimate merits analysis,
we do agree on the two points relevant at this stage: that the Court should resolve the circuit
split regarding RLUIPA’s validity under the Establishment Clause, and that this case is a good
vehicle to do so

A. The Establishment Clause question is ripe for review.

All of the parties involved, in both this case and in Bass, agree that the Establishment
Clause question, on which the circuits are split, is an issue that is ripe for the Court’s review.
See generally Petition; see also Petition (of Virginia) in Bass v. Madison, Case No. 03-1404
(petition pending); (Pnvate) Respondent's Brief in Response in Bass; Brief for the United States
(“U.S. Bass Br.”) in Bass. As the United States summarized it, the “conflict is mature and
entrenched.” and “[p]ostponing review is not likely to contribute to the reasoned resolution of the
quest.on presented.” See U.S. Bass Br. at 8.

Because those parties have explained the split, Ohio will not explain it at length again.
The Sixth Circuit, in the decision below, held that RLUIPA’s prison provisions violate the
Establishment Clause, while the Fourth, Seventh and Ninth Circuits have rejected Establishment
Clause challenges. Madison v. Riter, 355 F.3d 310 (4th Cir. 2003), cert. petition pending as Bass
v. Madison, Case No. 03-1404; Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003); Mayweathers
v. Newland, 314 F.3d 1062 (9th Cir. 2002), cert. denied, 124 S. Ct. 66 (2003). And as both the
Petition here and the decision below have noted, the split may be considered as even broader, as
three other circuits—the Fifth, Eighth, and D.C. Circuits—have rejected similar Establishment

Clause challenges to RLUIPA’s predecessor statute, the Religious Freedom Restoration Act

(RFRA). See Petition at 7-8; Cutter, 349 F.3d at 261-62, Pet. App. A at 4 (explaining split); see
Flores v. City of Boerne, 73 F.3d 1352, 1364 (Sth Cir. 1996), rev'd on other grounds, 521 U.S.
507 (1998); Jn re Young, 141 F.3d 854, 863 (8th Cir. 1998); EEOC v. Catholic Univ. of Am., 83
F.3d 455, 470 (D.C. Cir. 1996).

Moreover, the split is universally understood as a legal one, not a factual one, and the
split is over both the conclusion regarding RLUIPA, and over several key legal principles. The
Sixth Circuit found that RLUIPA has the forbidden effect of advancing religion, violating the
second prong of the “Lemon test” established by Lemon v. Kurtzman, 403 U.S. 602 (1971). As
the Sixth Circuit explained, RLUIPA gives religious inmates an enhanced position relative to
secular inmates who file otherwise-identical claims. Cutter, 349 F.3d at 266-67, Pet. App. A at
6. In Boerne, Justice Stevens had the same objection to RFRA. City of Boerne v. Flores, 521
U.S. 507, 536-37 (Stevens, J., concurring) (“the statute has provided the Church with a legal
weapon that no atheist or agnostic can obtain.”). But the other circuits have all expressly
rejected this ; sint about RLUIPA and Lemon's “effects” prong. See, e.g., Madison, 355 F.3d at
318-319; Mayweathers, 314 F.3d at 1069.

Further, the Sixth and the other Circuits have also disagreed on whether RLUIPA is a
permissible burden-lifting accommodation under Corporation of the Presiding Bishop v. Amos,
483 U.S. 32° (1987). The Sixth Circuit reasoned that the statute upheld in Amos—one that
grants religious groups an exception from Title VII's prohibition against religious
discrimination—simply “lifted” a burden that the rest of Title VII would have otherwise
imposed, leaving religious groups unaffected overall. Cutter, 349 F.3d at 267, 268, Pet. App. A
at 7,8. By contrast, RLUIPA went further, “by giving religious prisoners a preferred status in

the prison community.” Cutter, 349 F.3d at 267, Pet. App. at 7. But the other circuits have

expressly found that RLUIPA is the type of “burden-lifting™ law that 1s allowed under Amos.
See Madison, 355 F.3d at 317; Charles, 348 F.3d at 610; Mayweathers, 314 F.3d at 1068.

In sum, the Court should decide whether RLUIPA violates the Establishment Clause.

B. This case is needed to ensure full review of the Establishment Clause issue.

If the Court decides to review this important issue—as it should—then it should grant
certioran in this case to do so. Review in Bass alone would not be enough, for at least two
reasons. First, Virginia expressly disclaims the Establishment Clause theory adopted by the
Sixth Circuit and by the District Court in Bass. See Virginia's Petition in Bass (“Va. Bass Pet.”)
at 10-11; Cutter, 349 F.3d at 264-69, Pet. App. A at 5-8; Madison v. Riter, 240 F. Supp. 2d 566
(W.D. Va. 2003). Thus, Ohio is needed to fully represent the view that has created the split.
Second, the record developed here is far more extensive than that in Bass, and that record
illustrates the real-world effects of RLUIPA.

First, Virginia has explained that it does not intend to advance the view adopted by the
Sixth Circuit, as it instead promotes a different Establishment Clause argument. See Va. Bass
Pet. at 10-11 (rejecting view); id. at 11-15 (explaining federalist Establishment theory). Indeed,
not only does Virginia plan to avoid advancing the Sixth Circuit's view, but Virginia goes a step
further, as it openly criticizes that view as wrong. /d. at 10-11. In Virginia’s view, RLUIPA
does not violate the Establishment Clause under the Lemon test or under any variant theory that
focuses on whether government (whether state or federal) has impermissibly advanced or
endorsed religion. Instead, Virginia promotes a federalist view of the Establishment Clause,
under which RLUIPA'’s substantive standard does not violate the Establishment Clause, but the

problem is that Congress imposed the RLUIPA standard on the States. /d. at 11-15. Under that

view, RLUIPA improperly invades the States’ “authority to make policy choices in the ‘play in

10

the joints’ between what the Establishment Clause prohibits and what the Free Exercise Clause
requires.” /d. at 13, quoting Locke v. Davey, 124 S. Ct. 1307, 1307 (2004).'

Because Virginia will not provide the Court a full picture of the Establishment Clause
issues here, Ohio's presence as a party is needed. That is not to say that Ohio disparages
Virginia's federalist view; to the contrary, Ohio would advance it as one alternative here. But by
limiting itself to that view and to the Ca/dor argument (see below at 11-12 and at n.1), Virginia
will not provide the Court a full representation of one side of he debate. But the Court should
have such a full representation at hand if it wishes to fully consider the issues here. Virginia
suggests that the Sixth Circuit’s “theory is available for this Court’s consideration” if the Court
reviews Bass, because the Court can review the decisions of the Sixth Circuit and of the Western
District of Virginia. /d. at 11. But reading those opinions is not the same as having a party make
the case. Indeed, such concerns frequently lead this Court to appoint counsel to represent a
position, when a party indicates it will not defend a certain view defending or opposing the
judgment below. See, e.g., Becker v. Montgomery, 532 U.S. 757, 758 (2001) (noting that
counsel “argued the case as amicus curiae in support of the judgment below, by invitation of the
court.”); Alabama v. Shelton, 535 U.S. 654, 656(2002) (same, but with counsel opposing
judgment below).

Here, the Court can avoid the likely need to appoint counsel in Bass, as the Court can and
should grant review in this case, and Obio will fill the role of advancing the Sixth Circuit's

position against RLUIPA.

' Virginia, like Ohio, also advances the view that RLUIPA violates the Establishment Clause because
it requires accommodations that impose burdens on third parties, in violation of Estate of Thornton v.
Caldor, 472 U.S. 703 (1985). Here, both prison officials and other prisoners are burdened when
preferences are accorded to certain religious claimants.

ll

Second, this case adds to the debate because it, unlike Bass, offers the Court a
comprehensive record of the real-world effects of RLUIPA in prisons, such as the burdens that
RLUIPA imposes upon prison officials and upon other inmates. The facts regarding burdens
upon others is crucial, as both Ohio and Virginia seek to rely on Estate of Thornton v. Caldor,
472 U.S. 703 (1985), which concerned the effects of such burdens. Unlike Amos, which dealt
with /ifting burdens on those who seek religious accommodation, Ca/dor dealt with the problems
that arise when an accommodation is achieved at the cost of imposing burdens upon others. See
id. at 708-10. In Caldor, a Connecticut statute mandated that private employers could not
require any employee to work on the particular day of the week that the employee identified as
his Sabbath. /d. at 706. The Court found that this scheme violated the Establishment Clause, as
it imposed a cost on the employers and on a claimant's fellow employees, who bore the brunt of
the accommodation. /d. at 708-10.

Similarly, RLUIPA imposes burdens upon prison officials and upon inmates, who must
face the secunty problems that result from RLUIPA’s imposition—and the record here
documents those problems. Ohio assembled a comprehensive record of how RLUIPA is used,
like RFRA was before it, as a cover for advancing gang-related activities. That record includes
the results of a national survey of the real-world impact of the RFRA/RLUIPA standard. And
the Petitioners here vividly demonstrate how those whose agendas overlap with disruptive gang
activity often invoke demands for religious freedom. For example, Plaintiff Gerhardt is a racial
separatist, and no one doubts that racial strife is a problem in our prisons.

Indeed, the gang problem is a primary driver, as a practical matter, of the States’
opposition to RLUIPA, as we States all see how RLUIPA hamstrings our efforts to combat

prison gangs. See, e.g., Gerhardt, 221 F. Supp.2d at 832-33 (denial of separate group services

12

for white supremacist inmates); Marria v. Broaddus, 200 F. Supp.2d 280 (S.D.N.Y. 2002)
(challenging increased restrictions on inmates belonging to “religious” groups with a history of
gang-affiliated violence); Johnson v. Martin, 2002 U.S. Dist. Lexis 19246 (W.D. Mich. 2002)
(same).

While the record in this case thoroughly demonstrates the gang problems and other
burdens imposed by RLUIPA, the Bass record is not nearly as complete. The Bass record is
limited to a few facts about that particular case, involving one inmate in one prison, who insists
on kosher food.

In sum, the Court should grant certiorari in this case, even if it wishes to review only the
Establishment Clause question, as only Ohio will fully press the /ega/ issues here, and only this

case has a factual record sufficient to bring those legal issues to life.

13

Il. The Court should review the other constitutional issues regarding RLUIPA’s
validity, such as challenges under the Spending and Commerce Clauses and the

Tenth and Eleventh Amendments.

Ohio acknowledges that the circuits are not split on the federalism issues here, as they are
on the Establishment Clause question. Nevertheless, Ohio urges the Court to review these
additional issues both because the States need a definitive resoltion to this ongoing debate and
because piecemeal review could result in a scenario in which the law is upheld even if a majority
of the Court concludes that it is unconstitutional. Further, as explained below, only this case
would allow the Court to legitimately review all of the constitutional issues regarding RLUIPA,
as the federalism challenges offer alternate grounds for affirming the Sixth Circuit's decision.

A. The Court should fully resolve RLUIPA’s validity now, without allowing
uncertainty to continue, and without allowing for inconsistent decisions by
the Court.

The Court should resolve all of the questions regarding RLUIPA’s constitutionality in
one round of review, because defernng the federalism questions creates two independent
problems. First, deferral will cause the States to live with years of harmful and unnecessary
uncertainty, in an area that has already been marked for years by frequent swings in the law.
Second, if the federalism issues are decided later, cut off from the Establishment Clause issues,
such a scenano could easily lead to a bizarre result in which RLUIPA could be upheld even if a
majority of the Court finds it unconstitutional, albeit on different grounds.

First, while continued uncertainty is often a hallmark of law, the dramatic swings in this
particular area are notable. While prison officials must decide questions of religious
accommodation every day, they have had to do so in a legal environment that has fluctuated

wildly in the last decade. The controlling standard has swung, since 1993, back and forth

between deferential rational-basis review, O ‘Lone v. Estate of Shabazz, 482 U.S. 342 (1987), to

14

strict scrutiny and the least-restrictive-means test, “the most demanding test known to
constitutional law,” Boerne, 521 U.S. at 534. Congress passed RFRA in response to the Court's
decision in Employment Div., Dept. of Human Services v. Smith, 494 U.S. 872 (1990), and after
the Court invalidated RFRA in Cit of Boerne, Congress responded with RLUIPA. This
legislative-judicial dialogue is, in many senses, a good thing, as each side of the debate
represents a different branch doing its legitimate job. But no one can deny that the brunt of these
changes in law is borne by the prison system.

This uncertainty costs more in the prison system than it might in other areas. “Running a
prison is an inordinately difficult undertaking that requires,” among other things, “planning and
the commitment of resources.” Turner v. Safley, 482 U.S. 78, 84-85 (1987). Further, hard
experience has taught that “[i]t is important to be consistent with the inmates” because “changing
the rules constantly will actually precipitate problems.” J. Katz, Tips on Managing Inmates: The
Tricks of the Trade, Corrections Managers’ Report, Vol. VII, No. 6 (April/May 2002) 83.

That uncertainty has very real consequences while it continues. Often, operational
decisions, many with very high stakes, are driven by those legal standards. For example, States
must combat prison gangs, and they try to do so by, among other things, prohibiting certain
groups closely connected with gang activity and certain jewelry used as non-verbal identifiers.
Such measures have been recognized as both effective and legal under constitutional standards.
Fraise v. Terhune, 283 F.3d 506, 512-513 (3rd Cir. 2002) (upholding, as against constitutional
challenges, ban on violent group); see Alameen v. om. 892 F. Supp. 440, 445-446, 450
(E.D.N.Y. 1995) (discussing compelling interest in ban on certain jewelry, which had been used
as gang identifier). But officials cannot be sure whether they can continue to implement

measures such as bans on known violent groups or on symbolic jewelry, because the

15

RFRA RLUIPA standard has forced their abandonment. Marria vy. Broaddus, 2003 U.S. Dist.
Lexis 13329 (S.D.N.Y. July 31, 2003) (invalidating, under RLUIPA, ban on the same violent
group whose ban had been constitutionally upheld in Fraise); Alameen, 892 F. Supp. at 450
(invalidating jewelry ban, under RFRA, because State did not show that ban amounted to the
least restrictive means to address compelling interest). Indeed, no one doubts that claims that
would surely fail under the constitutional standard might meet more success, whether leading to
ultimate victory or at least surviving dismissal to reach discovery, under RLUIPA. See Murphy
v. Missouri Dept. of Corrections, 2004 U.S. App. Lexis 12239 (June 22, 2004) (affirming
summary judgment against pnsoner’s Free Exercise claim, but reversing and remanding on
identical claim under RLUIPA).

The only way to end this uncertainty, other than striking RLUIPA on Establishment
Clause grounds (which Ohio of course urges), is for Court to rule on RLUIPA’s validity under
the Spending and Commerce Clauses and Tenth and Eleventh Amendments, if it determines that
the Act satisfies the Establishment Clause. Otherwise, the uncertainty will continue until another
case (or this case after remand) comes up from the circuits. “[P]nson officials, on the spot and
with the responsibility for the safety of inmates and staff,” Wolff v. McDonell, 418 U.S. 539, 566
(1974), simply do not have the luxury of waiting that long.

Second, if the Court waits to resolve the federalism issues, it faces the very real
possibility that RLUIPA might be upheld even if, in the long run, a majority of the Court finds it
unconstitutional. That odd result could occur in this way: If the Court reviews only the
Establishment Clause issue now, it might sustain the law by, perhaps, a 6-3 vote. Then, in a few
years, the Court might sustain the law against a Spending Clause challenge, again by a 6-3

vote—but with a different three Justices in dissent. At that point, a majority of six Justices will

16

have found the law unconstitutional, but the law will stand, as it will have separately withstood
both challenges.

By contrast, if the Court hears the questions together, then the same voting lineup, if it
occurs simultaneously in one case, would result in the law’s invalidation. That is how it should
be, if that is how the numbers add up. In fact, the Court frequently reaches a judgment for one
side or another with no majority decision, with a judgment-based-majority comprised of
markedly different opinions. Nothing is unusual about that, but there is something unusual—
and, Ohio submits, undesirable—about allowing a different result to obtain because the decisions
are split over the years. Many commentators have explained how such a scenario would be an
internally irrational result. See, e.g., F. Easterbrook, Ways of Criticizing the Court, 95 Harv. L.
Rev. 802, 814-20 (1982); E. Hartnett, A Matter Of ‘hiding Not A Matter Of Opinion, 74
N.Y.U.L. Rev. 123, 140-42 (1999).

Indeed, Ohio stresses that it does not seek to “game the system” by combining the issues
to more easily allow for an ultimate result in our favor. To the contrary, Ohio suggests that
dividing the issues would amount to a breakdown of the system, even if unintended. To be sure,
application of this line of reasoning should be limited, or parties could frequently supplement a
certworthy issue with a series of tag-along issues. But here, even though the circuit courts have
rejected the States’ federalism-based challenges to RLUIPA, those challenges are surely
substantial ones.

The United States, in its Bass-acquiescence, offers several reasons why the Court should
not consider the federalism issues, but those reasons are unpersuasive. First, the U.S. notes how
those issues are not properly raised in Bass, U.S. Bass Br. at 11-12, but as explained in Part B

below, that is not the case here. Second, the U.S. points to the lack of a circuit split on these

17

issues. /d at 12-13. Ohio suggests, however. that the concems raised above outweigh the lack
of such a split. Third, the U.S. notes that the Court denied cert. in Alameida v. Mayweathers,
124 S. Ct. 66 (2003), and it asserts that Virginia “identif[ied] no intervening development that
warrants a different outcome™ in Bass. The intervening development, though, is the circuit split
occasioned by this case, and again, that split on the Establishment issue makes it more sensible to
now resolve these interrelated questions regarding RLUIPA’s constitutionality as a whole.

Finally, the U.S. urges the Court to allow further percolation of the Spending Clause
issue in light of the Court's recent decision in Sahri v. United States, 124 S. Ct. 1941 (2004),
U.S. Bass Br. at 13, but as Virginia explained fully in its Bass reply brief, Sabri is irrelevant. In
Sabri, a local official convicted of violating a federal bribery statute claimed that the statute was
unconstitutional because it did not require proof of a link between the bribe itself and the federal
fund received by the local government. Rejecting the official's attempted reliance on Spending
Clause doctrine, the Court explained that such doctrine does not apply to direct federal regulation
of individual behavior; instead, Spending Clause limits protect against Congress's use of its
fiscal power as “a means for bringing federal economic might to bear on a State’s own choices of
public policy.” Sabri, 124 S. Ct. at 1947-48.

In sum, the Court should review all of the issues related to RLUIPA’s eneendie
Or, more important, RLUIPA’s unconstitutionality. And as explained below, the Court should

grant review in this case to do so.

B. This case is needed to properly reach the other questions about RLUIPA’s
validity.

If the Court does wish to reach the challenges to RLUIPA beyond the Establishment
Clause—and it should, for the reasons above—then it should surely grant review here, as only

this case will properly allow such full consideration of the issues.

18

As the United States explained in its Bass acquiescence, the different procedural posture
here, relative to Bass, means that only this case raises the whole host of RLUIPA issues. U.S.
Bass Br. at 10 n.8. That is because Ohio won below, so as Respondent here, it may therefore
“rely upon any matter appearing in the record in support of the judgment below.” Blum v.
Bacon, 457 U.S. 123, 137 n. 5 (1982). The United States urges that reality as a reason nor to
review the case, as it, not surprisingly given its desired outcome, seeks to avoid review of the
federalism challenges to RLUIPA. After all, it has won those fights below, and it has no reason
to risk a loss here. But given the practical reasons to hear those issues, as explained in Part A
above, it seems hard to deny the need to grant this Petition as a means to do so.

Although Ohio agrees with Virginia that broader review is more appropriate, it
reluctantly concludes that the United States has the better of the argument regarding the resulting
scope of review, if review is limited to Bass alone. As the U.S. explains, the Court rarely, if
ever, reviews non-jurisdictional issues that were not resolved below and are not alternate grounds
for affirmance, as opposed to grounds for reversal. That is, the Court’s usual practice is to not
consider grounds not passed on below to attack a judgment, and Ohio understands that an
exception is unlikely in Bass. But Cutter would allow the Court to reach all of these issues and
ensure that all issues are resolved, but without departing from its usual practice.”

While this difference in posture is the primary—and in our view, sufficient—reason to
review this case as a vehicle to examine the federalism issue, other reasons also militate in favor
of this Petition as the better vehicle for resolving those issues. For example, just os the record

here is more thorough on the Establishment Clause issues, see Part I-B above, so, too, is the

? Ohio notes that, while we ask the Court to conduct a broader legal review than that suggested by the
Petition, we do not ask the Court to modify the judgment, which found RLUIPA unconstitutional.
Thus, Ohio has not filed a cross-petition in this case. See Blum, 457 U.S. at 137 n. 5 (Respondents
may “rely upon any matter appearing in the record in support of the judgment below. ).

19

record more developed on the Spending and Commerce issues. Ohio submitted reams of

| ; . CONCLUSION
evidence regarding every federal penny that goes to Ohio's prisons, and Ohio built a record

, The Court should grant the Petition, and it should affirm the judgment below.
showing how those funds are not related to the “burdens” on free exercise alleged here. On the

; Respectfully submitted,
other side, Plainuffs-Petitioners here submitted much evidence purporting to show how Ohio's
: JIM PETRO
prisons affect interstate commerce. The Custer Plainuffs’ efforts on the Commerce front stand in Attomey General of Ohio

marked contrast to the approach taken by Plainuff-Respondent Madison in Bass. That inmate

insists that he has never relied on the Commerce Clause as a predicate for his RLUIPA claims, as U S R. COLE*
State Solicitor
he has relied solely on the Spending Clause instead. See (Private) Respondent’s Brief in *Counsel of Record
STEPHEN P. CARNEY
Response in Bass, Case No. 03-1404, at 9. Thus, along with the different procedural posture, the Senior Deputy Solicitor
TODD R. MARTI
different records in Bass and Cutter show that this case is a superior vehicle for deciding the i Assistant Solicitor
30 East Broad Street, 17th Floor
federalism challenges to RLUIPA. Columbus, Ohio 43215
614-466-8980
In sum, just as this case adds a necessary dimension to the Court’s review of the 614-466-5087 fax
Establishment Clause question, this case is a truly indispensable part of any possible review of Counsel for Respondents
July 19, 2004

the federalism issues here.
+**
In the final analysis, the case for reviewing RLUIPA is both clear and compelling. The
need to include Cufter in that process is also pressing. Cutter is the only vehicle that would
allow the Court to properly reach beyond the Establishment Clause, as both Ohio and Virginia

have urged it to do. But, even if the Court decides to review RLUIPA solely on Establishment

Clause grounds, Cutter is still a vital part of the puzzle, as only with Cutter will the Court be

presented with the full Establishment Clause picture.

20 21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A04. Public record. Not legal advice.