Amicus Curiae Brief — Cutter v. Wilkinson

No. 03-9877 (3)

IN THE | OFFICE OF THE CLERK |

' \ if i > K f

Supreme Court of the Gnited States a

JON B. CUTTER, ET AL.,

Petitioners,

Vv.

REGINALD WILKINSON, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE AMERICAN CORRECTIONAL

‘CHAPLAINS ASSOCIATION, FORMER STATE COR-

RECTIONS OFFICIALS, STATE PRISONERS, PRISON

FELLOWSHIP, JEWISH PRISONER SERVICES IN-

TERNATIONAL, ALEPH, THE AMERICAN CATHO-

LIC CORRECTIONAL CHAPLAINS ASSOCIATION,

ADVENTIST CHAPLAINCY MINISTRIES, CITIZENS

UNITED FOR THE REHABILITATION OF ERRANTS,

THE JOHN HOWARD ASSOCIATION, SHAMBALA

PRISON COMMUNITY, THE PRISON DHARMA

NETWORK, AND ROBERT C. LYNN AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

GENE C. SCHAERR*

DAVID S. PETRON

RICHARD H. MENARD JR. _

MICHAEL C. SOULES

DANIEL I. RABINOWITZ

SIDLEY AUSTIN BROWN

& WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

Counsel for Amici Curiae

December 20, 2004 * Counsel of Record

NS A ST

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

TAL Oe AUTRE TEI crcccscsccsesesccscossssvsesscensscssesee

SUMMARY OF THE ARGUMENT ............:cscessesseseees

I. RLUIPA FURTHERS IMPORTANT SECULAR

OBJECTIVES THAT ARE CLOSELY RE-

LATED TO THE FEDERAL INTERESTS

SERVED BY PRISON FUNDING.............::c000000

A. RLUIPA Furthers the Secular Objectives of

Accommodating Religious Fellowship and

Worship and of Ensuring that Federal Tax

Dollars Are Not Used to Thwart Religious Ex-

B. By Promoting the Accommodation of Relig-

ious Exercise in Prisons, RLUIPA Facilitates

the Important Objective of Prisoner Rehabili-

1. Accommodation of Religious Exercise Aids

Rehabilitation by Helping Prisoners Adjust

to Prison and by Improving Prison Order...

2. Accommodation of Religious Exercise in

Prison Furthers the Objective of Reducing

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II. RLUIPA’S STRICT SCRUTINY STANDARD

HARMONIZES RELIGIOUS ACCOMMO-

DATIONS WITH THE STATES’ COMPEL-

LING INTERESTS IN PRISON SECURITY

AINDD ORRISIEI, ..ccccceseccsscscessssnnnensnininnistintnsntiniiniintins

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17

26

TABLE OF AUTHORITIES

CASES Page

Agrawal v. Briley, No. 02 C 6807, 2003 WL

22839813 (N.D. Ill. Nov. 25, 2003)................... 19

Aiello v. Frank, No. 03-C-0127-C, 2003 WL

23277415 (W.D. Wis. June 3, 2003) ................. 19

Benning v. Georgia, Nos. 04-10979, 04-11044,

2004 WL 2749172 (11th Cir. Dec. 2, 2004)...... 8, 19

Boles v. Neet, 333 F. Supp. 2d 1005 (D. Colo.

ETL TTD 19

Boyd v. Arizona, 87 F.3d 1317 (9th Cir. 1996),

available at 1996 WL 341273 ..........ccccccceeeeeeeees 21

Case v. Bowles, 327 U.S. 92 (1946)...........:ccccccees 4

Charles v. Frank, 101 Fed. Appx. 634 (7th Cir.),

cert. denied, 125 S. Ct. 479 (2004).............00000 23

Charles v. Verhagen, 220 F. Supp. 2d 937 (W.D.

a cacenrasernnnnnnce 23

Charles v. Verhagen, 348 F.3d 601 (7th Cir.

LE LET 8, 19

Corporation of Presiding Bishop v. Amos, 483

a terdnatamracccnsosasonencnees 4, 6,7, 11

Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2004),

cert. granted, 125 S. Ct. 308 (2004)...............4.. 6, 7

DeHart v. Horn, No. 03-4250, 2004 WL 2709924

SE I TT MIs cccccsccnssncccecesssesonsoceencesses 20

Farrow v. Stanley, No. Civ. 02-567-B, 2004 WL

224602 (D.N.H. Feb. 5, 2004)... cee eeeeeeeees 23

Fawaad v. Jones, 81 F.3d 1084 (11th Cir. 1996).. 23

Goodman v. Snyder, No. 00 C 0948, 2003 WL

22765047 (N.D. Ill. Nov. 20, 2003)...............00.. 19

Gordon v. Pepe, No. Civ.A.00-10453-RWZ, 2004

WL 1895134 (D. Mass. Aug. 24, 2004)............ 19

Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996) 22

Hammons v. Saffle, 348 F.3d 1250 (10th Cir-

EE SESS 20

Jones v. Roth, 950 F. Supp. 254 (N.D. Ill. 1996).. 23

iV

TABLE OF AUTHORITIES-continued

Page

Locke v. Davey, 124 S. Ct. 1307 (2004)................ 5

Loden v. Peters, No. 92 C 20209, 1995 WL

89951 (N.D. Ill. Mar. 1, 1995)... cesses 21

Lyng v. Northwest Indian Cemetery Protective

han a RD SB Fae Ce eicntisananiitiniia 9

Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996),

vacated on other grounds, 522 U.S. 801 (1997) 22

Madison v. Riter, 355 F.3d 310 (4th Cir. 2003),

petition for cert. filed, 72 U.S.L.W. 3658 (U.S.

a Ce cetesentcserensnscsiticiinitininints 5, 19, 26

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.

2002), cert. denied sub nom. Alameida v. May-

weathers, 124 S. Ct. 66 (2003) ..........scssscseeeeeees 8, 19

Murphy v. Missouri Dep’t of Corr., 372 F.3d 979

(8th Cir.), cert. denied, 125 S. Ct. 501 (2004)... 21

Rogers v. Hellenbrand, No. 03-C-230-C, 2004

WL 433976 (W.D. Wis. Mar. 4, 2004), aff'd,

No. 04-1918, 2004 WL 2698957 (7th Cir. Nov.

BA, I iicnicsiccassatsincinitesiaiiiasitiiiniunidaiaapinalibiaaiibaiaiiaaiiaaeies 21

South Dakota v. Dole, 483 U.S. 203 (1987).......... 5,9, 17

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) 5

Estate of Thornton v. Caldor, inc., 472 U.S. 703

Eee ninnscensrcinscseesteisbdabenieesaiiaiaiiadaith tapas cicada 7

Turner v. Safley, 482 U.S. 78 (1987) .........ccceceeee 20

Ulmann vy. Anderson, No. Civ. 02-405-JD, 2004

WL 883221 (D.N.H. Apr. 26, 2004).................. 23

University of Great Falls v. NLRB, 278 F.3d 1335

Gn Geet Saeeee icsisseihtamereserepsaieesiciiniataninannenaitie 18

Walz v. Tax Comm'n, 397 U.S. 664 (1970) .......... 4,5

Winters v. State, 549 N.W.2d 819 (lowa 1996)... 21

STATUTES AND CONSTITUTION

as GE, IR Bh Be i arececnccienascccesesensttennnsnentvoniinneninns 2

Vv

TABLE OF AUTHORITIES-continued

Page

American Indian Religious Freedom Act, Pub. L.

No. 95-341, 92 Stat. 469 (1978), 42 U.S.C.

TP cesirecnnnepsnepesinnuntadaniicencnaanipiniiiniediencsaninenan 9

Prison Litigation Reform Act of 1995, Pub. L.

No. 104-134, tit. VIII, 110 Stat. 1321-66.......... 24, 25

Religious Freedom Restoration Act of 1993, Pub.

L. No. 103-141, 107 Stat. 1488, 42 U.S.C.

BE I, cneciniennsnpeitinnensneinsenitiitaniaiemmaiies l

Religious Land Use and Institutionalized Persons

Act of 2000, Pub. L. No. 106-274, 114 Stat.

803, 42 U.S.C. § 2000cc ef Seq. ........:cccecceeeseeeees 1, 24

Ba Ss te SIE csteeninccnsensdirnsintsttaetiadulindaminiansideaine 24

ee as Ob PP ctiinientetencentstnniainnneniimctinniniabaaaia 24

Be Si sitsensencciocnessenstiecvesinenennsmiitiuiiansis 25

EIR.” © Fe rettcereiercensmnstnenninonsisientinplitinns 24

ee cniincndnsnninctennenasinnes wanemeenieivien 7

I snrnscepencecinsinsmieaniinaiemiutsiaiibaiieis 20

Oe TS scccnssiccsiissinensinciideaiaiiitanuibsapitilidatienl 1,8

OP SNE csirreadinsceninicnnniibatpesinniiniiensianits 21,24

LEGISLATIVE HISTORY

Hearing Before the Senate Comm. on the Judici-

ary: Issues Relating to Religious Liberty Pro-

tection, and Focusing on the Constitutionality

of a Religious Protection Measure, 106th Cong.

See icitsncinsosiepisoreinesingtniaiesiaitnaniiiiaiiiaiatnnsiaibinbaiantias 8, 11, 14

Hearing Before the Subcomm. on Terrorism,

Tech., and Homeland Sec. of Senate Comm. on

the Judiciary, 108th Cong. (2003)................00+ 15

146 Cong. Rec. $7776 (daily ed. July 27, 2000)

(Letter from Assistant Attorney General Robert

Raben to the Hon. Orrin Hatch (July 19,2000)) 24

vi

TABLE OF AUTHORITIES-continued

Page

Joint Statement of Senator Hatch and Senator Ken-

nedy on the Religious Land Use and Institution-

alized Persons Act of 2000, 146 Cong. Rec.

S$7774-76 (daily ed. July 27, 2000).......... 20, 22, 25

ORDER

Exec. Order No. 13,007, 61 Fed. Reg. 26,771

RE dete, HID ccnnnnsccnsencscsienstasenenescsesemnnsantnituns 9

SCHOLARLY AUTHORITIES

Lee Boothby & Nicholas P. Miller, Prisoner

Claims for Religious Freedom and State

RFRAs, 32 U.C. Davis L. Rev. 573 (1999)........ 25

Todd R. Clear et al., The Value of Religion in

Prison: An Inmate Perspective, 16 J. Contemp.

Se, Sy SII vemitisininitiniecetemecssdtinmianiionn 18

Todd R. Clear & Melvina T. Sumter, Prisoners,

Prison, and Religion: Religion and Adjustment

to Prison, 35 J. Offender Rehab. 127 (2002)..... 12, 13

Harry R. Dammer, The Reasons for Religious In-

volvement in the Correctional Environment, 35

J. Offender Rehab. 35 (2002)....................ccceeeeee 12

Jamie Aron Forman, Note, Jewish Prisoners and

Their First Amendment Right to a Kosher

Meal: An Examination of the Relationship Be-

tween Prison Dietary Policy and Correctional

Goals, 65 Brook. L. Rev. 477 (1999) .............0 14

Derek L. Gaubatz, RLUIPA at Four: Evaluating

the Success and Constitutionality of RLUIPA’s

Prisoner Provisions, 28 Harv. J.L. & Pub.

Pol’y (forthcoming 2005) ............::ssssccesseeeeeeees 25

Vii

TABLE OF AUTHORITIES-continued

Page

Bryon R. Johnson et al., Religious Programs, In-

stitutional Adjustment, and Recidivism Among

Former Inmates in Prison Fellowship Pro-

grams, 14 Just. Q. 145 (1997)... eceeeeeeees 12, 13, 14

Bryon R. Johnson, Religious Programs and Re-

cidivism Among Former Inmates in Prison

Fellowship Programs: A Long-Term Follow-

Up Study, 21 Just. Q. 329 (2004)... eeeeeeeeeees 13

Thomas P. O’Connor & Michael Perreyclear,

Prison Religion in Action and Its Influence on

Offender Rehabilitation, 35 J. Offender Rehab.

Fe Gar ccihscittnciinictiinnicadanisiianieatintiimninens 12, 13, 15, 16

Margo Schlanger, /nmate Litigation, 116 Harv. L.

ST, FR CD vectsccsssstnscncsnsesctenininnnnpsecaieninies 25

Melvina T. Sumter, Religiousness and Post-

Release Community Adjustment, Graduate Re-

search Fellowship—Executive Summary (Sept.

25, 2000), available at http://www.ncjrs.org/

pdffiles/nij/grants/184509.pdf...............:cccceeeees 14

Jody L. Sundt & Francis T. Cullen, The Correc-

tional Ideology of Prison Chaplains: A Na-

tional Survey, 30 J. Crim. Just. 369 (2002)........ 16

Mark C. Young et al., Long-Term Recidivism

Among Federal Inmates Trained as Volunteer

Prison Ministers, 22 J. Offender Rehab. 97

Sve chicsiejutscecinniteistisninnsieinianesiibiiadaddnianmbadiibainbiiaisiniiae 14, 16

OTHER AUTHORITIES

David Cole, Faith Succeeds Where Prison Fails,

4. 8 § & eer 15-16

Dep’t of Corr. Transitional Servs. Div., Volunteer

Programs, at http://www.oregon.gov/DOC/

Trans/religious services _/rs_vision02.shtml

(last viewed Dec. 15, 2004) .00........ceecceeeeeeeeeeeees 15

Vili

TABLE OF AUTHORITIES-continued

Ari Goldman, Sing Sing Inmates Hail Plan to

Offer Kosher Meals, N.Y. Times, Sept. 6, 1993

Brief of Ohio and Other States as Amici Curiae at

3-8, 17-18, Benning v. Amideo, 2004 WL

2749172 (llth Cir. Dec. 2, 2004) (Nos. 04-

PO Oe Be ri ccccsscccscstesisencscencemnnnnsnsinenenis

Thomas P. O’Connor et al., Home for Good in

Oregon: A Community, Faith and State Re-

entry Partnership to Increase Restorative Jus-

tice, Corrections Today, Oct. 2004, available at

http://www.oregon.gov/DOC/TRANS/docs/pdf

FRG © CIE ccccsnvnemvemnnniannnnnnenen

Don Thompson, Officials: Prison Program An-

swer to Our Prayers, Miami Herald,

Page

10

17

12

INTEREST OF THE AMICI

Amici curiae, whose identities and individual statements of

interest are provided in the Appendix, are current and former

prison chaplains, former state corrections officials, current

state prisoners, and private religious and civil rights organi-

zations.' Amici’s diverse experiences with prison-related is-

sues lead them to the common conclusion that the provisions

of the Religious Land Use and Institutionalized Persons Act

of 2000, Pub. L. No. 106-274, 114 Stat. 803 (“RLUIPA”)

(codified at 42 U.S.C. § 2000cc et seq.), at issue in this case

are not only sound as a matter of constitutional law, but very

important as a matter of public policy.’

Specifically, amici believe the elimination of undue gov-

ernmental constraints on religious exercise by prisoners is a

worthy and important goal that can inure to the benefit not

only of those in confinement, but of the wider society as well.

This goal, moreover, can be realized without significantly

burdening prison administrators and without compromising

prison safety and security—as demonstrated by experience

with RLUIPA itself, with the federal Religious Freedom

Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488

(“RFRA”) (codified at 42 U.S.C. § 2000bb et seq.), and with

numerous religious accommodation policies voluntarily un-

dertaken by the States themselves. Amici submit this brief

because the resolution of this case will decide che fate of a

key safeguard of prisoners’ religious freedom.

' Pursuant to Rule 37, letters of consent from the parties have been filed

with the Clerk of the Court. In accordance with Rule 37.6, amici state that

no counsel for any party has authored this brief in whole or in part, and no

person or entity, other than amici, has made a monetary contribution to the

preparation or submission of this brief.

? In this brief, unless otherwise noted, “RLUIPA” refers to section 3 of

the statute, 42 U.S.C. § 2000cc-1, which contains the provisions relating

to institutionalized persons.

2

SUMMARY OF THE ARGUMENT

In RLUIPA, Congress acted to encourage the States to ex-

tend to state prisoners an important protection that Congress

had previously granted to federal prisoners in the Religious

Freedom Restoration Act. The various legal challenges to

that effort will be ably and fully rebutted by the parties to this

case and by other amici curiae. Accordingly, rather than at-

tempt a comprehensive defense of RLUIPA, this brief will

draw on amici’s diverse experiences with religious exercise in

prisons generally, and with RLUIPA specifically, to make

two narrow but important points.

First, RLUIPA was designed to further, and does in fact

further, important objectives that “provide for the . . . general

Welfare” (U.S. Const. art. I, § 8), are closely related to the

federal interest in funding state prisons, and are wholly con-

sistent with the Establishment Clause.

As to the latter, this Court has long taught that the accom-

modation of religious practice by private actors is, by itself, a

legitimate secular purpose of legislation for Establishment

Clause purposes. RLUIPA was enacted for that purpose, and

in that respect is in line with the many legislative accommo-

dations of religious exercise that this Court has upheld over >

the years. Correlatively, RLUIPA furthers the legitimate

secular goal of ensuring that federal tax dollars are not used in

a way that undermines federal policy on religious freedom.

But these are not the only ways in which RLUIPA furthers

the general welfare. Congress also understood that, for many

prisoners, the ability to practice their faiths plays a central

role in their ability to rehabilitate themselves while in prison

and after release. Accordingly, by promoting religious ac-

commodation in prisons, RLUIPA promotes the important

secular objective of helping to rehabilitate religiously inclined

prisoners and ex-prisoners. This too is a valid, secular pur-

pose, and its effectuation is therefore a permissible effect.

3

Second, RLUIPA accomplishes these congressional objec-

tives in a way that does not undermine the compelling inter-

ests of prison administrators in maintaining order and security

in their institutions. The fear of skeptics and critics of

RLUIPA (and of RFRA before it) that the legislation would

open the door to a flood of bogus and disruptive claims has

not materialized. To the contrary, the statute was expressly

designed not to condone specious claims and not to interfere

with the States’ obviously compelling interest in prison secu-

rity—and it has not done so.

One reason for-that is that the courts have proven well able

to separate the wheat from the chaff. They routinely dismiss

RLUIPA claims that either are insincere or would pose a

credible threat to prison order or safety. Moreover, as illus-

trated by the claims of the state prisoners who have joined

this brief (and who prevailed in the other courts of appeals

that have upheld RLUIPA), the typical claim under RLUIPA

is not the manipulative or disruptive gambit foreseen by some

opponents of the statute. It is, rather, a reasonable request for

accommodation of a benign religious ritual or practice—such

as a kosher diet or access to prayer oil. Nor has RLUIPA in-

augurated a wave of vexatious litigation; in fact, the statute’s

passage saw no discernible increase in the volume of prisoner

lawsuits.

In -short, the accommodation of religious liberty that

RLUIPA promotes is both permissible as a matter of consti-

tutional law and sound—or at the very least reasonable—as a

matter of public policy. The Sixth Circuit erred in refusing to

respect the legitimate policy choices that Congress made

when it passed this important statute.

4

ARGUMENT

I. RLUIPA FURTHERS IMPORTANT SECULAR

OBJECTIVES THAT ARE CLOSELY RELATED

TO THE FEDERAL INTERESTS SERVED BY

PRISON FUNDING.

As this Court has held repeatedly, the accommodation of

religious exercise is a legitimate secular purpose that does not

offend the Establishment Clause. See, e.g., Corporation of

Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987) (“it is a

permissible legislative purpose to alleviate significant gov-

ernmental interference with the ability of religious organiza-

tions to define and carry out their religious missions”’) (citing

and applying Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).

The logical corollary, equally grounded in this Court’s deci-

sions, is that the alleviation of government-imposed burdens

on religious exercise is a permissible effect of legislation un-

der the Establishment Clause. See id. at 336-37 (citing

Lemon, 403 U.S. at 612). It could hardly be otherwise; it

would be an odd rule indeed that a purpose is permissible but

its realization is not. Cf. Case v. Bowles, 327 U.S. 92, 102

(1946) (“Since the decision in McCulloch v. Maryland, it has

seldom if ever been doubted that Congress has power in order

to attain a legitimate end...to use all appropriate means

plainly adapted to that end, unless inconsistent with other

parts of the Constitution.”) (internal citation omitted). Ac-

cordingly, this Court’s decisions leave no doubt that the eas-

ing of state-imposed burdens on private religious practice

does not have the “principal or primary effect” of advancing

religion. E.g., Amos, 483 U.S. at 336-37; Walz v. Tax

Comm'n, 397 U.S. 664, 668 (1970).

As explained below, RLUIPA has both the purpose and the

principal effect of lifting (or encouraging States to lift) gov-

ernment-imposed burdens on religious exercise by prisoners,

while at the same time ensuring that programs supported by

federal tax dollars do not unnecessarily thwart religious exer-

5

cise. RLUIPA also furthers the important objective of facili-

tating the rehabilitation of prisoners in whose lives religion

plays an important role. All of these are permissible purposes

and effects for purposes of the Establishment Clause. For

purposes of the Spending Clause, all of these objectives like-

wise promote the general welfare and are plainly “related” to

the “federal interest” in funding state prison programs. South

Dakota v. Dole, 483 U.S. 203, 207 (1987) (quoting Massa-

chusetts v. United States, 435 U.S. 444, 461 (1978) (plurality

op.)).

A. RLUIPA Furthers the Secular Objectives of Ac-

commodating Religious Fellowship and Worship

and of Ensuring that Federal Tax Dollars Are

Not Used to Thwart Religious Exercise.

1. The cardinal purpose of RLUIPA—“alleviation of gov-

ernment burdens on prisoners’ religious exercise,” Madison v.

Riter, 355 F.3d 310, 317 (4th Cir. 2003)}—is a legitimate

secular objective sanctioned by this Court’s long-standing

Establishment Clause jurisprudence. As this Court reaffirmed

only last term, there is ample room for “play in the joints”

between the Establishment Clause and the Free Exercise

Clause of the First Amendment. Locke v. Davey, 124 S. Ct.

1307, 1311 (2004); see also Walz, 397 U.S. at 669. Thus,

“(t]he limits of permissible state accommodation to religion

are by no means cc <xtensive with the noninterference man-

dated by the Free Exercise Clause.” Walz, 397 U.S. at 673.

Accord Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8

(1989) (plurality op.) (disclaiming the proposition that all

“benefits conferred exclusively upon religious groups or upon

individuals on account of their religious beliefs are forbidden

by the Establishment Clause unless they are mandated by the

Free Exercise Clause”). Accordingly, even without a predi-

cate free exercise violation, “[u]nder the Lemon analysis, it is

a permissible legislative purpose to alleviate significant gov-

ernmental interference with the ability of religious organiza-

tions”—and individuals as well—‘“to define and carry out

6

their religious missions.” Amos, 483 U.S. at 335. And Con-

gress therefore has “ample room under the Establishment

Clause” to lift governmentally imposed burdens on private

religious exercise. /d. at 334.

The achievement of that purpose is also a permissible “ef-

fect” for purposes of the Lemor analysis, as a comparison to

Amos demonstrates. In Amos, the Court found not only that

accommodating religion was a valid secular purpose, but that

the specific exemption at issue there—the Title VII exemp-

tion for religious employers—did not violate the other two

parts of the Lemon test. As to the “effects” inquiry, the Court

held that the exemption did not have the principal or primary

effect of advancing religion because Congress itself was not

advancing religion: “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 influ-

ence.” /d. at 337. Rather, the Title VII exemption “allows

churches to advance religion, which is their very purpose,” id.

(emphasis added, emphasis in original omitted), and the ex-

emption cannot be unconstitutional for that reason.’

Contrary to the Sixth Circuit’s analysis, Cutter v. Wilkin-

son, 349 F.3d 257, 263-64, 267 (6th Cir. 2004), RLUIPA sat-

isfies the effects requirements of Lemon even more readily

than did the Title VII exemption in Amos. In eliminating un-

necessary government interference with religious exercise,

RLUIPA does not—as a facial matter—have the primary ef-

fect of advancing religion. Instead, by its terms RLUIPA

simply helps religious prisoners themselves exercise their lib-

erty to practice their faiths. No government “activities and

* Furthermore, the exemption created no excessive entanglement of

church and state because it “effectuate[d] a more complete separation of

the two and avoid[ed] the kind of intrusive inquiry into religious belief.”

483 U.S. at 339.

7

influence” are necessarily enlisted to advance the cause of

religion. 483 U.S. at 337."

It also bears emphasizing that, despite the wide range of re-

ligious practices to which RLUIPA applies, see Cutter, 349

F.3d at 263, the statute is far narrower than the Title VII ex-

emption in one crucial respect. The Title VII exemption ap-

plies categorically to all activities of non-profit religious em-

ployers whether or not the activities are directly related to the

employer’s religious operations. See Amos, 483 U.S. at 332

n.9 (describing 1972 amendment to Title VII expanding the

scope of the exemption); see also 42 U.S.C. § 2000e-1. De-

spite some prior suggestions that such “exceptionless” ac-

commodations may in some circumstances violate the Estab-

lishment Clause, see Estate of Thornton v. Caldor, Inc., 472

U.S. 703, 709-10 (1985), the Amos Court upheld the Title VII

exemption.

By comparison, the accommodation of religious practice

mandated by RLUIPA is less exacting because the rights se-

cured by RLUIPA are contingent on the institution’s ability to

maintain order and security. By allowing a prison to defeat a

claim under the statute’s compelling interest standard, Section

* To be sure, accommodation of religious exercise, like everything else

in prison, requires some action by the State. That is the nature of prison; a

prisoner cannot do anything—eat, sleep, shower, read, write, have a phone

conversation—without the State’s active involvement. But within that

necessarily hands-on environment, RLUIPA calls on the State to assume a

decidedly hands-off posture relative to religious practice: not to become

involved in religious exercise, but to make reasonable allowances for pri-

vate religious exercise. The fact that such allowances, like everything in

prison, may entail some affirmative steps by the State has no bearing on

the constitutional analysis.

Similarly, there can be no serious argument that RLUIPA somehow

creates an impermissible entanglement of church and state. On the con-

trary, RLUIPA requires prison officials to accommodate all religious be-

lievers (including minority believers) in a neutral fashion, and that neu-

trality helps to avoid situations in which interference with particular re-

ligious practices might yield an excessive entanglement.

8

3 of RLUIPA forges a balance between prisoners’ important

interest in exercising religion and compelling interests of the

State. 42 U.S.C. § 2000cc-1(a) (setting forth compelling in-

terest standard); see also infra Section II]. And, unlike the

sometimes significant burdens on others that are entailed by

the Title VII exemption in Amos, the burdens RLUIPA im-

poses on prison, administrators are quite modest, usually in-

volving little more than a reallocation of allotted resources.

Thus, RLUIPA’s satisfaction of the “purpose” and “effects”

analyses required under Lemon follows a fortiori from Amos.

2. RLUIPA also furthers the related secular objective of

ensuring that federal tax dollars do not support state programs

that unnecessarily thwart religious exercise. As one com-

mentator put it during the congressional hearings, “[t]he Fed-

eral interest here is simply . . . that Federal funds should not

be used unnecessarily to impose burdens on religious exer-

cise.” Hearing Before the Senate Comm. on the Judiciary:

Issues Relating to Religious Liberty Protection, and Focusing

on the Constitutionality of a Religious Protection Measure,

106th Cong. 73 (1999) (“Hearing”) (statement of Douglas

Laycock, University of Texas School of Law). As the Ninth

Circuit has recognized, “Congress has a strong interest in

making certain that federal funds do not subsidize conduct

that infringes individual liberties, such as the free practice of

one’s religion. . .. Congress may allocate federal funds freely,

then, to protect the free exercise of religion... .” Mayweath-

ers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002), cert.

denied sub nom. Alameida v. Mayweathers, 124 §. Ct. 66

(2003). Accord Charles v. Verhagen, 348 F.3d 601, 608-09

(7th Cir. 2003). Or, as the Eleventh Circuit recently put it,

even where a state pr:son is not violating inmates’ federal free

exercise rights, “Congress has every right to ensure that state

prisons that accept federal funds respect the religious freedom

of prisoners.” Benning v. Georgia, Nos. 04-10979 & 04-

11044, 2004 WL 2749172, at *6 (11th Cir. Dec. 2, 2004).

9

Indeed, Congress may legitimately act to ensure that federal

funds are not used to inhibit religious exercise just as surely

as the federal government may administer federal lands in a

manner that does not obstruct religious practices. See Lyng v.

Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439,

454 (1988) (“The Government’s rights to the use of its own

land... need not and should not discourage it from accom-

modating religious practices like those engaged in by the In-

dian respondents.”). In fact, Congress has enacted legislation

requiring the federal government to protect the rights of Na-

tive Americans to exercise traditional religions through “ac-

cess to sites” and “the freedom to worship through ceremoni-

als and traditional rites.” American Indian Religious Free-

dom Act, Pub. L. No. 95-341, § 1, 92 Stat. 469, 469 (1978)

(codified at 42 U.S.C. § 1996). Similarly, the executive

branch has directed that, in managing federal lands, responsi-

ble executive branch agencies shall, to the extent practicable,

“(1) accommodate access to and ceremonial use of Indian sa-

cred sites by Indian religious practitioners and (2) avoid ad-

versely affecting the physical integrity of such sacred sites.”

Exec. Order No. 13,007, § 1, 61 Fed. Reg. 26,771, 26,771

(May 24, 1996). Just as the federal government may accom-

modate religious exercise through the administration of fed-

eral lands—a practice this Court sanctioned in Lyng—so too

may Congress promote the general welfare by advancing the

accommodation of religious exercise through federal funding.

For all these reasons, ensuring the appropriate use of fed-

eral funds is yet another valid secular purpose and effect of

RLUIPA. And it is obviously closely related to the “federal

interest” in funding state prisons, which would be undermined

if those prisons used fungible federal funds, in part, to thwart

federal policy on religious freedom. Dole, 483 U.S. at 207.

10

B. By Promoting the Accommodation of Religious

Exercise in Prisons, RLUIPA Facilitates the Im-

portant Objective of Prisoner Rehabilitation.

Apart from the legitimate Congressional interest in freedom

of religion as such, the ace »ommodation of religious exercise

in prisons produces significant corollary benefits, which Con-

gress recognized in passing RLUIPA and which the statute

demonstrably advances. Incarceration imposes profound

handicaps on the ability of religious individuals to observe

their faiths. Apart from private prayer, even the most basic

forms of religious exercise, such as worship and devotional

study—let alone such things as religiously mandated diet and

dress—simply are not possible without the state’s affirmative

acquiescence.

One consequence is that persons for whom religion pro-

vides solace and stability are deprived of that outlet, and in a

circumstance in which they may need solace and stability

more than ever. As one prison administrator put it, prisoners

““don’t have many hope pegs to hang your being on’

... ‘Religion is one of those hope pegs.’” Ari Goldman,

Sing Sing Inmates Hail Plan to Offer Kosher Meals, N.Y.

Times, Sept. 6, 1993, at 20.

Unsurprisingly, then, to the extent religiously inclined pris-

oners are relieved of the burden on religious exercise that or-

dinarily accompanies incarceration, those prisoners tend to be

better equipped to deal with the severity of imprisonment, and

more well-adjusted both in prison and out, than they would be

without that accommodation. Indeed, as shown below, a

growing body of research indicates that, for prisoners for

whom religion is an important part of life, accommodating

religious exercise tends both to ease the adjustment to prison

life and to facilitate rehabilitation. By ensuring that the eser-

11

cise of religion behind prison walls is not unnecessarily fet-

tered, RLUIPA advances these important objectives.”

1. Accommodation of Religious Exercise Aids

Rehabilitation by Helping Prisoners Adjust

to Prison and by Improving Prison Order.

In the experience of amici, one of the principal roles that

religious accommodation can play in prisons is to help pris-

oners adjust to the harshness of the prison environment. In

debating the legislation that became RLUIPA, even oppo-

nents of the statute conceded the important rehabilitative role

played by accommodating religious exercise.

[Ejvery correction administrator in the country recog-

nizes the vital role played by most religious practices

and beliefs in furthering inmate rehabilitation, in main-

taining a sense of hope and purpose among individual

inmates and in enhancing overall institutional safety and

well-being. Most inmates who sincerely practice their

religious beliefs do not pose institutional problems.

Rather, as a rule of thumb, they promote institutional

stability.

Hearing, at 175 (statement of Glenn S. Goord, Commissioner,

New York State Department of Correctional Services).

Recent studies indicate that religious accommodation is

profoundly important to the rehabilitation of many prisoners.

For one thing, those studies show that genuine religious prac-

tice is widespread, deeply influencing the day-to-day lives of

a great many prisoners. For example, a major study of relig-

* This is not to say that religious accommodations are valuable only—

or even primarily—because of their instrumental value. Religious liberty

is the first freedom guaranteed by the Bill of Rights, and accommodating

religion is inherently important. See, e.g., Amos, 483 U.S. at 334 (noting

history of protection for religious freedom in the United States). Thus,

even if a particular religious exercise produced no rehabilitative or other

impact on prisoners or society at large, accommodating that religious ex-

ercise would always be an invaluable protection of prisoners’ civil rights.

12

ious activity in a large South Carolina prison found that

“(rjeligious practice in prison can be very extensive with

about 50% of inmates attending religious services an average

of six times per month.” Thomas P. O’Connor & Michael

Perreyclear, Prison Religion in Action and Its Influence on

Offender Rehabilitation, 35 J. Offender Rehab. 11, 28 (2002).

And a recent census of Oregon state prisoners showed that 52

percent of them are involved in religious activities. Thomas

P. O’Connor et al., Home for Good in Oregon: A Community,

Faith and State Re-entry Partnership to Increase Restorative

Justice, Corrections Today, Oct. 2004, at 73, available

at http://www.oregon.gov/DOC/TRANS/docs/pdf/home_4_

good.pdf; see also Bryon R. Johnson et al., Religious Pro-

grams, Institutional Adjustment, and Recidivism Among For-

mer Inmates in Prison Fellowship Programs, 14 Just. Q. 145,

146 (1997) (noting that a 1991 survey showed that “nearly

one inmate in three is involved in religious programs”).

The evidence suggests, and amici’s own experience con-

firms, that such activities have a substantial impact. A na-

tional study of the role of religion in the adjustment to prison,

which surveyed prisoners at 20 prisons, found that religiosity

(measured as a composite of religious activity, attitudes, and

beliefs) was positively correlated with self-esteem and with

the degree to which prisoners felt adjusted to prison. Todd R.

Clear & Melvina T. Sumter, Prisoners, Prison, and Religion:

Religion and Adjustment to Prison, 35 J. Offender Rehab.

127, 150-51 (2002). These religiously active prisoners were

also less likely to suffer from depression. /d. at 151; see also

Harry R. Dammer, The Reasons for Religious Involvement in

the Correctional Environment, 35 J. Offender Rehab. 35, 41

(2002) (describing how many prisoners achieve “peace of

mind” from religious observance, which is “important for the

psychological survival of inmates”’).

The benefits of religious accommodation extend beyond the

religious prisoners themselves. One study found that religi-

osity is often a “principal determinant” in the number of dis-

13

ciplinary infractions that a prisoner receives, with fewer in-

fractions among those prisoners who have greater religious

activity and belief. Clear & Sumter, supra, at 154. These

findings mirror those of the South Carolina study, which con-

cluded that “the more religious sessions an inmate attended,

the less likely he was to have an [in-prison] infraction.”

O’Connor & Perreyclear, supra, at 26.

The recent experience of a California prison provides an-

other stark example of the potential impact of religious ac-

commodation on prisoners’ adjustment to prison life. That

prison, which had long been plagued by gang violence, expe- ~

rienced a sharp drop in the number of riots and other violent

incidents after a large group of its prisoners participated in a

religious studies program. Don Thompson, Officials: Prison

Program Answer to Our Prayers, Miami Herald, May 13,

2004, at 7. As one administrator put it, the religious program

within that prison “‘has definitely played a role’” in reducing

in-prison violence. /d.

2. Accommodation of Religious Exercise in

Prison Furthers the Objective of Reducing

Recidivism.

In the experience of amici, religious accommodation also

reduces recidivism among those who choose to participate in

religious services and other activities. And once again, this

experience is supported by the available evidence. See

O’Connor & Perreyclear, supra, at 28-29.

For example, a study comparing recidivism rates of

prisoners participating in an intensive prison ministry

° The few studies that have detected no statistical differences in pris-

oner behavior typically were not measuring overall religious participation

but were instead comparing participants within a specific program versus

those without. See, e.g., Johnson et al., supra, at 149-50; Bryor © John-

son, Religious Programs and Recidivism Among Former leeeses in

Prison Fellowship Programs: A Long-Term Follow-Up Study, 21 Just. Q.

329, 336-38 (2004).

14

program with the general prison population found

significantly lower long-term (eight- to fourteen-year)

recidivism rates among program participants. Mark C. Young

et al., Long-Term Recidivism Among Federal Inmates

Trained as Volunteer Prison Ministers, 22 J. Offender Rehab.

97, 104, 110-11 (1995). Another study, using follow-up data

on prisoners who had been incarcerated in twelve prisons

around the country, found that those who had participated

regularly in religious activities had significantly lower

recidivism rates in the six and a half years following their

release. Melvina T. Sumter, Religiousness and Post-Release

Community Adjustment, Graduate Research Fellowship—

Executive Summary 10 (Sept. 25, 2000), available at

http://www.ncjrs.org/pdffiles | /nij/grants/184509.pdf. And a

study of participants in a ministry operating in four New York

state prisons found that greater participation was linked to

lower rates of re-arrest in the year following the prisoners’

release. Johnson et al., supra, at 160. Indeed, one

commentator opined that “[s]piritual development and

religious study are perhaps ‘the most valuable tools for

rehabilitation and to prevent recidivism.”” Jamie Aron

Forman, Note, Jewish Prisoners and Their First Amendment

Right to a Kosher Meal: An Examination of the Relationship

Between Prison Dietary Policy and Correctional Goals, 65

Brook. L. Rev. 477, 484 & n.45 (1999) (quoting Hearings on

the Need for Fed. Prot. of Religious Freedom After Boerne v.

Flores Before the Comm. on the Judiciary, 105th Cong. 5

(1998) (statement of Isaac M. Jaroslawicz, Director of Legal

Affairs for the Aleph Institute))__-

Congress clearly had in mind such secular benefits when it

sought to promote the accommodation of religion in the

prison context. As one Senator put it, accommodating the

religious practices of prisoners “helps rehabilitate them and

makes them less likely to commit crime after they are

released.” Hearing at 20 (statement of Sen. Strom

Thurmond).

15

Many of the benefits of religious exercise in prison can be

traced to the extensive contact between prisoners and

volunteers, who tend to be “a group of people who ha[ve]

learned how to successfully negotiate and derive satisfaction

from the different worlds of work, family, education, politics,

and religion.” O’Connor & Perreyclear, supra, at 20. Given

that “offenders tend to have trouble negotiating these areas of

life, and . . . problems in these areas are predictive of crime

and recidivism,” positive interactions with volunteers fills a

crucial need in many prisoners’ lives. /d. Amici’s own

experience confirms that religious volunteers are important

exemplars of social stability for prisoners.

Religiously-motivated volunteers, moreover, make up the

largest cohort of volunteers working in prisons. For example,

77 percent of the volunteers in the Oregon prison system last

year were associated with the Religious Services department.

See Dep’t of Corr. Transitional Servs. Div., Volunteer

Programs, available at http://www.oregon.gov/DOC/TRANS/

religious_services/rs_visionO2.shtml (last viewed Dec. 15,

2004). The 1500 volunteers associated with Religious

Services donated over 100,000 hours of work, the equivalent

of 55 full-time employees. /d. Similarly, the South Carolina

study found that “232 [religious] volunteers donated about

21,316 hours of work to the prison: the equivalent of 11 full-

time paid positions.” O’Connor & Perreyclear, supra at 23;

see also Hearing Before the Subcomm. on Terrorism, Tech.,

and Homeland Sec. of the Senate Comm. on the Judiciary,

108th Cong. 32 (2003) (statement of Paul Rogers, President,

American Correctional Chaplains Association) (noting that

“(olf civilians who choose to participate in various prison

activities, the vast majority is Religious Program

volunteers”). Indeed, “in many prisons, the only groups

engaged in rehabilitative programs are religious ones.” David

16

Cole, Faith Succeeds Where Prison Fails, N.Y. Times, Jan.

31, 2001, at A21.’

Furthermore, prisoners’ involvement in religious activities

allows them to interact with prison chaplains, a group institu-

tionally dedicated to the goal of prisoner rehabilitation. Jody

L. Sundt & Francis T. Cullen, The Correctional Ideology of

Prison Chaplains: A National Survey, 30 J. Crim. Just. 369,

377-78 (2002). In amici’s experience, regular, voluntary

contact with prison chaplains likewise tends to reduce both

short-term and long-term recidivism.

Further study is required to understand fully the dynamics

at work here. But the evidence, confirmed by amici’s own

experience, demonstrates that voluntary religious programs

are “a potent and a cost-effective resource in the national ef-

fort to reduce the negative effects of crime on individuals and

the community.” Young et al., supra, at 115. Taken together,

current research suggests that these programs “must be con-

sidered in the mix of variables and ‘best correctional prac-

tices’ related to offender rehabilitation,” O’Connor & Perrey-

clear, supra, at 30. Indeed, at a time when “we have all but

given up on rehabi.itation as ‘soft on crime,’” voluntary re-

ligious programs offer an important alternative for rehabili-

tating prisoners in preparation for their re-entry into society.

Cole, supra, at A21.

For all these reasons, the accommodation of religious exer-

cise in prison—within relevant constitutional limits—is of

surpassing importance. It is a legitimate secular purpose and

effect for purposes of the Establishment Clause. And it pro-

motes the general welfare in a way that is closely related to

the federal interest in supporting state prisons, including the

’ Such volunteer programs are also cost-effective. While other effec-

tive rehabilitation programs cost in the range of $14,000 per prisoner per

year, the South Carolina study found that the annual cost of programs us-

ing religious volunteers “could be considered a bargain at about $150 to

$250 per inmate served.” O’Connor & Perreyclear, supra, at 23.

17

strong federal interest in rehabilitation. See Dole, 483 U.S. at

207.

Congress, therefore, was right to decide that accommoda-

tion of religious exercise would make valuable contributions

to the penal system as well as the lives of individual prison-

ers. At a minimum, that judgment was a reasonable one, and

the Sixth Circuit erred in second-guessing it.

Il. RLUIPA’S STRICT SCRUTINY STANDARD

HARMONIZES RELIGIOUS ACCOMMODA-

TIONS WITH THE STATES’ COMPELLING IN-

TERESTS IN PRISON SECURITY AND ORDER.

Notwithstanding the important benefits RLUIPA provides

to prisoners and society, opponents of the statute maintain

that it is unwise and dangerous as a matter of policy. Such

arguments take several forms, but the common motif is that

the statute threatens prison order and security by upsetting the

balance of power between prisoners and administrators.

Aside from their irrelevance to the constitutional questions

before the Court,® these criticisms are demonstrably wrong as

a factual matter. Despite the rhetorical force of the image of

mass conversion to the “Church of the Filet Mignon”—or,

more gravely, racist and dangerous activity undertaken under

the banner of religion—the reality is far different. As illus-

trated by the claims of the prisoner amici here, typical claims

brought under RLUIPA are in fact sincere, modest, and be-

* For one thing, arguments of those sort are, at bottom, a policy dispute

with Congress. For another, they generally constitute as-applied chal-

lenges masquerading as facial challenges. See, e.g., Brief of Ohio and

Other States as Amici Curiae at 3-8, 17-18, Benning v. Amideo, 2004 WL

2749172 (11th Cir. Dec. 2, 2004) (Nos. 04-10979 & 04-11044) (discuss-

ing the potential for prison violence that inheres in some ostensibly relig-

ious objects and practices, and asserting that violent prisoners sometimes

manipulate and abuse religious rights). The question whether a particular

accommodation should be granted under RLUIPA is not relevant to the

facial challenge at issue here.

18

nign. And RLUIPA leaves the States with ample legal tools

to handle any risks that religious accommodation might oth-

erwise create in the prison setting.

1. As a factual matter, there is little support for the cynical

view that prisoners resort to religion to secure special consid-

eration from authorities. In one recent study, researchers

were surprised to find very little evidence suggesting that

prisoners were opportunistically using religion to achieve

privileges or fewer restrictions inside their facilities. Todd R.

Clear et al., The Value of Religion in Prison: An Inmate Per-

spective, 16 J. Contemp. Crim. Just. 53, 63 (2000). Accord-

ing to these researchers, “[rJeligiously active inmates flatly

denied that they received special treatment by parole or prison

authorities.” /d. Significantly, even non-religious prisoners

doubted that religious activity actually led to special favors

within the prison. /d.

If anything, religious exercise often involves burdens that a

prisoner would not undertake in the absence of authentic re-

ligious faith. To cite a common example, the kosher require-

ments of some prisoners are frequently accommodated with a

cold “common fare” meal. The religious prisoner must there-

fore sacrifice a hot meal in favor of a cold one that does not

violate religious dietary laws. Fasting and other ascetic tradi-

tions that can be accommodated in prison similarly entail sig-

nificant sacrifices on the part of the prisoner. And, prisoners

professing religious beliefs are sometimes subject to taunts

and derisive comments by other, non-religious prisoners.

In these and other ways, an expressed desire for a religious

accommodation—which is a predicate for a claim under

RLUIPA—carries with it costs and burdens that will them-

selves have a tendency to discourage phony claims. Cf. Uni-

versity of Great Falls v. NLRB, 278 F.3d 1335, 1344 (D.C.

Cir. 2002) (noting that the costs associated with religious

identification “will act as a check on institutions that falsely

identify themselves as religious merely to obtain exemption

from the [National Labor Relations Act].”). Thus, as the

19

available evidence shows (and as the experience of amici con-

firms), there is in reality little risk that prisoners would, to any

significant degree, engage in sham religious exercises or ex-

pressions of religious belief.

2. In the experience of amici, moreover, the vast majority

of claims under RLUIPA involve religious practices that pose

no colorable threat to prison order or security. The anecdotes

and hypotheticals often invoked by RLUIPA’s opponents are

far less typical than the claims brought by the prisoner amici

here, who prevailed in the other federal courts of appeals that

have upheld RLUIPA’s constitutionality. See Benning, 2004

WL 2749172; Madison, 355 F.3d at 317-22; Charles, 348

F.3d at 611; Mayweathers, 314 F.3d 1062. Those cases in-

volved requests for a kosher diet (Ira Madison and Ralph

Benning); for prayer oil (Jerry Charles); for permission to at-

tend weekly religious services (the Mayweathers plaintiffs);

for permission to wear a yarmulke (Mr. Benning); and for

permission to wear religiously significant beards (the May-

weathers plaintiffs).’

Although these kinds of requests pose no colorable threat to

prison security, they are often denied by prison administra-

tors. As two of RLUIPA’s Senate sponsors put it, “prison

officials sometimes impose frivolous or arbitrary rules.

Whether from indifference, ignorance, bigotry, or lack of re-

* See also, e.g., Agrawal v. Briley, No. 02 C 6807, 2003 WL 22839813,

at *3 (N.D. Ill. Nov. 25, 2003) (denying motion to dismiss RLUIPA claim

by Hindu prisoner for religious diet); Gordon v. Pepe, No. Civ.A.00-

10453-RWZ, 2004 WL 1895134, at *4 (D. Mass. Aug. 24, 2004) (allow-

ing RLUIPA claim for religiously motivated vegetarian diet); Boles v.

Neet, 333 F. Supp. 2d 1005, 1010 (D. Colo. 2004) (allowing RLUIPA

claim for refusal to allow Jewish prisoner to wear religious garments

while being transported for medical treatment); Goodman v. Snyder, No.

00 C 0948, 2003 WL 22765047 (N.D. Ill. Nov. 20, 2003) (allowing

RLUIPA claim for religious diet and tarot cards); cf. Aiello v. Frank, No.

03-C-0127-C, 2003 WL 23277415, at *1 (W.D. Wis. June 3, 2003)

(granting prisoner leave to state RLUIPA claim for denial of tallith, yar-

mulke, and prayer book).

20

sources, some institutions restrict religious liberty in egre-

gious and unnecessary ways.” 146 Cong. Rec. $7774, $7775

(daily ed. July 27, 2000) (joint statement of Senators Hatch

and Kennedy (“Joint Statement”)).

Moreover, relief often cannot be had under the First

Amendment alone, which requires only that a prison regula-

tion be “reasonably related to legitimate penological inter-

ests.” Turner v. Safley, 482 U.S. 78, 89 (1987). See, e.g.,

DeHart v. Horn, No. 03-4250, 2004 WL 2709924, at *6, *11

(3d Cir. Nov. 30, 2004) (affirming grant of summary judg-

ment for defendants on Buddhist prisoner’s First Amendment

claim for religious diet, citing “the Prison’s legitimate interest

in efficient food provision” and finding that accommodation

would impose more than “a minimal burden on the Prison,”

but remanding for consideration of corresponding claims un-

der RLUIPA); cf. Hammons v. Saffle, 348 F.3d 1250, 1255-

58 (10th Cir. 2003) (affirming grant of summary judgment for

defendants as to prisoner's First Amendment claim based on

denial of access to prayer oil, but remanding to the district

court for consideration of identical claim under RLUIPA).

Thus, in the run of cases, RLUIPA satisfies a substantial need

for prisoner-claimants while posing very little risk to sound

prison administration.

3. Just as importantly, RLUIPA erects substantial obstacles

that prisoners must overcome before they can win an accom-

modation. And the track record of both RLUIPA and RFRA,

which is identical to RLUIPA in the relevant respects,'°

shows that those obstacles are both real and effective at pre-

serving prison security and discipline.

'° See 42 U.S.C. § 2000bb-1(b) (RFRA § 3(b)) (“Government may sub-

stantially burden a person’s exercise of religion only if it demonstrates

that application of the burden to the person—{1) is in furtherance of a

compelling governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.”’).

21-

First, the statute places on the prisoner the burden of estab-

lishing beth the sincerity of his religious claim and the sub-

stantial burden imposed by the challenged regulation. 42

U.S.C. § 2000cc-2(b) (“the plaintiff shall bear the burden of

persuasion on whether the law (including a regulation) or

government practice that is challenged by the claim substan-

tially burdens the plaintiff's exercise of religion”); see also

Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 988 (8th

Cir.) (“RLUIPA requires that Murphy show, as a threshold

matter, that there is a substantial burden on his ability to exer-

cise his religion.”), cert. denied, 125 S. Ct. 501 (2004). This

is not empty verbiage: under both RLUIPA and RFRA, the

courts have proved perfectly capable of filtering out insincere

claims and insubstantial burdens at the pleading or summary

judgment stage. See, e.g., Boyd v. Arizona, 87 F.3d 1317

(9th Cir. 1996) (table), 1996 WL 341273, at *2 (affirming

grant of summary judgment in favor of prison officials who

had denied prisoner’s request under RFRA to “study scrip-

tures with his wife daily, hold family prayer with his wife

daily, . . . and render physical affection to his wife while he is

in prison”); Rogers v. Hellenbrand, No. 03-C-230-C, 2004

WL 433976, at *1, *6 (W.D. Wis. Mar. 4, 2004) (granting

partial summary judgment on prisoner’s RLUIPA claim

predicated on supposedly religious “auditory and visual hal-

lucinations,” where “plaintiff has failed even to adduce evi-

dence identifying his religious beliefs or indicating how he

practices or observes his religion”), aff'd, No. 04-1918, 2004

WL 2698957 (7th Cir. Nov. 24, 2004); Winters v. State, 549

N.W.2d 819, 820-21 (Iowa 1996) (affirming dismissal of

RFRA claim by white supremacist prisoner that sharing a cell

with an African-American prisoner substantially burdened his

religious exercise); Loden v. Peters, No. 92 C 20209, 1995

WL 89951, at *10 & n.4 (N_D. Ill. Mar. 1, 1995) (under

RFRA, holding that denial of prisoner’s request to worship

nude in a prison chapel did not substantially burden his relig-

ious exercise).

22

Second, the rights secured by RLUIPA (in contrast to many

religious exemptions) are not absolute but contingent. Far

from creating an unconditional right to religious exercise,

RLUIPA explicitly assigns countervailing weight to the bur-

dens on prison administrators. Because the statute’s “com-

peiling interest” and “least restrictive means” inquiries are

inherently contextual, their application to a given case will

necessarily take account of any relevant institutional exigen-

cies. As the Senate sponsors of RLUIPA explained, “[t]he

compelling interest test is a standard that responds to facts

and context.” Joint Statement, 146 Cong. Rec. at $7774,

$7775.

The compelling interest standard leaves ample room for

deference to prison officials on matters of prison security.

Indeed, RLUIPA’s Senate sponsors clearly indicated their ex-

pectation “that courts will continue the tradition of giving due

deference to the experience and expertise of prison and jail

administrators in establishing necessary regulations and pro-

cedures to maintain good order, security and discipline, con-

sistent with consideration of costs and limited resources.” /d.

at $7775 (internal quotation marks omitted).

The lower courts, moreover, have had no difficulty acting

in accordance with this expectation. As the Seventh Circuit

aptly noted in a RFRA decision that applies equally to

RLUIPA, “maintaining order in prisons is a compelling gov-

ernmental interest and one that frequently requires and so

justifies limitations on freedom of religious conduct.” Mack

v. O'Leary, 80 F.3d 1175, 1180 (7th Cir. 1996), vacated on

other grounds, 522 U.S. 801 (1997); accord Hamilton v.

Schriro, 74 F.3d 1545, 1554 (8th Cir. 1996) (“a court apply-

ing RFRA must give due deference to the expertise of prison

officials in establishing regulations to maintain prison safety

and security, even when the court applies a ‘heightened’ stan-

dard of review’’).

Here again, the substantial number of unsuccessful prisoner

claims under RLUIPA and RFRA bear out Congress’s ex-

23

pectation, even as they demonstrate that the strict scrutiny

standard, faithfully applied to the special circumstances of a

prison, amply protects the States’ compelling interest in

prison order and security. See, e.g., Charles v. Frank, 101

Fed. App. 634, 636 (7th Cir.) (holding that denial of pris-

oner’s request to wear prayer beads satisfied strict scrutiny

because “suppressing the open display of religious emblems

is necessary to stop gangs from usurping them as indicia of

membership”), cert. denied, 125 S. Ct. 479 (2004); Fawaad v.

Jones, 81 F.3d 1084, 1087 (11th Cir. 1996) (rejecting RFRA

challenge to prison rule limiting prisoners’ latitude in chang-

ing their names); Ulmann v. Anderson, No. Civ. 02-405-JD,

2004 WL 883221, at *8 (D.N.H. Apr. 26, 2004) (entering

summary judgment for defendants on detainee’s RLUIPA

claim, holding that denial of request for a glass menorah for

security reasons satisfied strict scrutiny); Farrow v. Stanley,

No. CIV.02-567-B, 2004 WL 224602, at *10 (D.N.H. Feb. 5,

2004) (rejecting RLUIPA claim for a Native American sweat

lodge because, inter alia, its use would require “intensive

monitoring” and its construction “would require inmates to

have access to tools that would create security concerns”’);

Charles, 220 F. Supp. 2d at 946-47 (granting summary judg-

ment for prison officials on Muslim prisoner’s RLUIPA claim

based on denial of request for two annual religious feasts,

citing compelling “security and resource concerns”); Jones v.

Roth, 950 F. Supp. 254, 257-58 (N.D. Ill. 1996) (rejecting

RFRA challenge to prison policy regulating the time and

manner of prayer).

These decisions illustrate the seriousness with which re-

viewing courts take the States’ interests in security and order.

The claims in these cases (and many others) were rejected,

not because the claimants had failed to show a substantial

burden on religion, but because the challenged regulations

were deemed narrowly tailored to the government’s compel-

ling interest in the safety and security of its prisons. Thus, not

only insincere claims, but also sincere claims that colorably

24

threaten prison security, will fail on the merits—and typically

on dispositive pre-trial motions.

4. Nor is there any support for the claim by RLUIPA’s de-

tractors that the statute will subject prison administrators to a

flood of lawsuits. Indeed, in passing RLUIPA, Congress had

before it a letter supporting RLUIPA’s passage from the

authorities overseeing federal prisons. The letter reported

that, in the six years that the Bureau of Prisons (“BOP”) had

been required to apply RFRA—which applies the same sub-

stantial burden standard as RLUIPA—BOP had not been

overwhelmed by frivolous prisoner lawsuits. The letter stated

unequivocally that “RFRA has been in effect in the Federal

Prison system for six years and compliance with that statute

has not been an unreasonable burden to the Federal prison

system.” 146 Cong. Rec. at $7776 (July 19, 2000, letter

from Assistant Attorney General Robert Raben to Sen. Orrin

Hatch).

BOP’s sanguine view was amply justified by the text of

RLUIPA. To minimize the risk that claims under RLUIPA

would lead to unreasonable litigation burdens, Congress ex-

pressly subjected such claims to the Prisoner Litigation Re-

form Act. See RLUIPA § 4(e), 42 U.S.C. § 2000cc-2(e)

(“Nothing in this chapter shall be construed to amend or re-

peal the Prison Litigation Reform Act of 1995 (including pro-

visions of law amended by that Act).”). The Prison Litigation

Reform Act of 1995 (“PLRA”)'' cabins the prospective relief

available to prisoners in civil actions related to prison condi-

tions (PLRA § 802, 18 U.S.C. § 3626), requires exhaustion of

administrative remedies prior to filing a lawsuit (PLRA § 803,

42 U.S.C. § 1997e), amplifies the procedural requirements for

filing in forma pauperis actions (PLRA § 804, 28 U.S.C.

§ 1915), and adds a judicial screening mechanism to review

'' Pub. L. No. 104-134, tit. VIII §§ 801-810, 110 Stat. 1321-66, 1321-

66 to 1321-77 (1996) (codified in scattered sections of titles 18, 28, and 42

of the United States Code).

25

potentially frivolous actions (PLRA § 805, 28 U.S.C.

§ 1915A). As the Senate sponsors of RLUIPA noted, “[t]he

Prison Litigation Reform Act is working effectively to control

frivolous prisoner litigation across the board, without barring

meritorious claims equally with frivolous ones.” Joint State-

ment, 146 Cong. Rec. at $7775. By subjecting RLUIPA ac-

tions to the requirements of the PLRA, Congress ensured that

courts and prison administrators would not be overwhelmed

by new prisoner litigation.

In fact, as recent studies have shown, neither RLUIPA nor

RFRA has had any measurable impact on the volume of pris-

oner lawsuits. See Margo Schlanger, /nmate Litigation, 116

Harv. L. Rev. 1555, 1583 tbl. 1.A, 1584 fig. LA, 1586 fig 1B

(2003) (showing that the enactment of RFRA was not fol-

lowed by a noticeable increase in the number of federal civil

rights claims by prisoners (as a proportion of the overall

prison population), and RLUIPA’s enactment was in fact

followed by a slight decrease in such suits); accord Derek L.

Gaubatz, RLUIPA at Four: Evaluating the Success and Con-

stitutionality of RLUIPA’s Prisoner Provisions, 28 Harv. J.L.

& Pub. Pol’y (forthcoming 2005) (finding that only 59

RLUIPA cases were filed in the 50 state prison systems in the

four years following the statute’s passage). Furthermore, as a

general rule, statutory claims for religious accommodation are

only a fraction of the prisoner claims faced by prison admin-

istrators. See Joint Statement at $7775 (citing studies show-

ing “that religious liberty claims are a very small percentage

of all prisoner claims, that RFRA led to only a very slight in-

crease in the number of such claims, and that on average

RFRA claims were more meritorious than most prisoner

claims”); see also Lee Boothby & Nicholas P. Miller, Pris-

oner Claims for Religious Freedom and State RFRAs, 32 U.C.

Davis L. Rev. 573 (1999). There is, therefore, no truth to the

suggestion that RLUIPA has resulted in waves of frivolous or

malicious actions from prisoners.

*_* & *& *

26

In short, far from providing a basis to second-guess Con-

gress’s policy judgment, the evidence amply confirms that

RLUIPA not only serves the important goal of protecting in-

dividual prisoners’ rights to exercise their religion, but also

serves the over-riding purpose of prisoner rehabilitation. The

available evidence also confirms the judgment expressed by

the Fourth Circuit “that RLUIPA should not hamstring

[states’] ability” to maintain safety and order in [their] pris-

ons. Madison, 355 F.3d at 321.

CONCLUSION

The judgment of the Court of Appeals should be reversed.

Respectfully submitted,

GENE C. SCHAERR*

DAVID S. PETRON

RICHARD H. MENARD JR.

MICHAEL C. SOULES

DANIEL I. RABINOWITZ

SIDLEY AUSTIN BROWN

& WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

Counsel for Amici Curiae

December 20, 2004 * Counsel of Record

la

APPENDIX

The American Correctional Chaplains Association

(ACCA) is a national association of professional chaplains,

founded in 1886 and affiliated with the American Correc-

tional Association. The ACCA membership represents chap-

lains of all faith groups in federal, state and local jurisdic-

tions. The mission of the ACCA is to serve as a professional

organization for pastoral care personnel in the corrections

field; provide a network for the sharing of information and

resources amongst its members and with corrections admin-

istrators; to formulate standards for chaplaincy and religious

programming in correctional facilities; develop and imple-

ment certification for correctional chaplains (recognized as

the industry standard); and communicate the religious and

spiritual aspects of corrections to the larger community.

Robert C. Lynn, a former president of ACCA, currently

serves as treasurer of the Association's Northwest region and

as pastor of the Skyline Christian Church in Takoma, Wash-

ington. He was Religious Program Administrator for the

Washington State Department of Corrections for 14 years,

and currently serves on the Department's Religious Advisory

Committee. Rev. Lynn also served 31 years as an Air Force

chaplain before retiring as Command Chaplain, Fourth Air

Force, at the rank of Colonel.

Walter J. Dickey and Chase Riveland (collectively, the

“corrections amici’) are former senior state corrections offi-

cials with extensive experience in prison management mat-

ters.

Mr. Dickey has served as Administrator of the Wiscon-

sin Department of Corrections and as Chair of Governor

Tommy Thompson’s Task Force on Corrections, and as

a member of the U.S. Justice Department’s Sessions on

Sentencing and Corrections. A widely published author

on corrections issues, Mr. Dickey also has taught at the

University of Wisconsin—Madison Law School since

2a

1976.

Mr. Riveland has served as Secretary of Corrections for

the State of Washington, Executive Director of the Colo-

rado Department of Corrections, and Deputy Director of

the Wisconsin Department of Corrections. Mr. Riveland

currently teaches corrections-related courses at the Na-

tional Institute of Corrections Academy in Colorado and

serves as an independent corrections consultant.

Ralph Benning, Ira W. Madison, Jerry Charles, and the

Prison Law Office (collectively, the “prisoner amici’) are

prisoners or attorneys representing prisoners who have suc-

cessfully defended the constitutionality of RLUIPA in every

one of the cases—other than the decision below—to reach the

federal circuit courts on this issue. The prisoner amici have

directly benefited and continue to benefit from RLUIPA’s

promotion of religious accommodations in prison, and in

three of their four cases, litigation under RLUIPA is ongoing.

Mr. Benning is a Georgia prisoner and “Torah observant

Jew” who filed suit under RLUIPA when he was denied

a kosher diet and a yarmulke. After Mr. Benning pre-

vailed in a motion to dismiss in the district court, Geor-

gia sought immediate appellate review under Fed. R.

Civ. P. 54(b) and 28 U.S.C. § 1292(b). The Eleventh

Circuit affirmed. Benning v. Georgia, Nos. 04-10979,

04-11044, 2004 WL 2749172 (11th Cir. Dec. 2, 2004).

The Eleventh Circuit’s mandate has not yet issued.

Mr. Madison, a Virginia state prisoner, filed suit under

RLUIPA when his requests for a kosher diet were denied

by Virginia prison officials. The district court granted

summary judgment to the defendants on Mr. Madison’s

RLUIPA claims, and the Fourth Circuit reversed. See

Madison v. Riter, 355 F.3d 310 (4th Cir. 2003). The de-

fendants sought this Court’s review of the Fourth Cir-

cuit’s ruling, and that petition for certiorari remains

pending, 72 U.S.L.W. 3658 (U.S. 2004) (No. 04-1404).

3a

Mr. Charles, a Wisconsin prisoner who had been pro-

hibited from possessing Islamic prayer oil in his cell,

challenged that denial under RLUIPA. The district court

ruled that this denial violated RLUIPA, Charles v. Ver-

hagen, 220 F. Supp. 2d 937 (W.D. Wis. 2002), and sub-

sequently upheld the constitutionality of RLUIPA, 220

F. Supp. 2d 955 (W.D. Wis. 2002). The Seventh Circuit

affirmed. Charles v. Verhagen, 348 F.3d 601 (7th Cir.

2003). As a result of his litigation success, Mr. Charles

is currently permitted to possess prayer oil.

The Prison Law Office is a nonprofit public interest law

firm devoted to protecting the constitutional rights of

California prisoners. Located just outside the gates of

San Quentin, it has been in the forefront of legal efforts

to enforce the Constitution and other laws inside the

walls of California’s prisons. It currently represents a

class of Muslim prisoners (collectively, the “Mayweath-

ers plaintiffs”) in litigation that, over the past seven

years, has sought accommodations to allow the plaintiffs

(i) to attend Friday afternoon religious services known

as Jumu’ah and (ii) to wear half-inch beards. The dis-

trict court originally granted the Mayweathers plaintiffs

preliminary injunctive relief, and California appealed.

The Ninth Circuit affirmed the preliminary injunctions,

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.

2002), and this Court denied the defendants’ petition for

certiorari, Alameida v. Mayweathers, 124 S. Ct. 66

(2003). Recently, the district court granted summary

judgment in favor of the plaintiffs and entered a perma-

nent injunction, Mayweathers v. Terhune, 328 F. Supp.

2d 1086 (E.D. Cal. 2004), and the defendants have again

appealed to the Ninth Circuit, Nos. 04-16470, 04-16861

(9th Cir. July 28, 2004).

Prison Fellowship is a non-profit, charitable religious or-

ganization founded in 1976 by Charles W. Colson and cur-

4a

rently operating in every state and in 106 countries. It minis-

ters to prisoners, ex-prisoners, and their families.

Jewish Prisoner Services International (JPSI) originated

as an agency of B’nai B’rith International and was restruc-

tured nine years ago into a separate non-profit chaplaincy

service. JPSI works in conjunction with all major branches of

Judaism and the Jewish Community’s other social services

agencies to assist Jewish prisoners and their families world-

wide. In addition to conducting its own programs, JPSI pro-

vides support to localized Jewish chaplaincy programs and is

extensively involved with various corrections industry or-

ganizations.

Aleph is a non-profit Jewish educational, humanitarian, and

advocacy organization. Aleph helps Jewish inmates and their

families to maintain essential connections to each other and to

their spiritual heritage and provides educational materials to

children of Jewish inmates, counseling to spouses, parents

and children, and financial assistance to families in need.

The American Catholic Correctional Chaplains Associa-

tion (ACCCA) is a national Catholic organization committed

to promoting the principles of restorative justice for all in-

volved with, or affected by, the criminal justice system. Re-

storative justice is Bible-based and views crime as affecting

victims, offenders, their families and the community at large.

Adventist Chaplaincy Ministries (ACM) is comprised of

trained chaplains from the Seventh-day Adventist Church.

Through the ministry of these chaplains, ACM responds to

the spiritual needs of those within unique institutional situa-

tions, including the correctional, educational, healthcare, and

military settings.

Citizens United for the Rehabilitation of Errants

(CURE) is a national membership organization dedicated to

reducing crime through reform of the criminal justice system,

chiefly prison reform. Most of CURE's 15,000 members are

prisoners, former prisoners, and families of prisoners.

Sa

CURE's two goals are (1) to use prisons only for those who

have to be in them, and (2) for those who have to be in them,

to provide them all the rehabilitative opportunities they need

to turn their lives around.

The John Howard Association (JHA) is a 103-year-old

corrections reform organization that concerns itself with the

conditions of confinement in prisons, jails, and juvenile de-

tention centers in Illinois and elsewhere, and that promotes

fair, safe, and humane corrections policies and practices that

meet the needs of both the offender and the community. JHA

recruits and trains citizen volunteers who participate in over

70 correctional facility monitoring visits each year. In these

monitoring visits JHA staff members and volunteers speak to

countless corrections officials, chaplains, program adminis-

trators, and incarcerated individuals, and observe correctional

programs in action.

The Shambhala Prison Community (SPC) and the Prison

Dharma Network (PDN) are involved in Buddhist prison

ministry. As practitioners of a minority religion and one that

is frequently misunderstood, SPC and PDN often encounter

resistance when prisoners request their services. The protec-

tions afforded by RLUIPA enhance SPC’s and PDN’s ability

to bring their services to persons confined to state prisons.