# Amicus Curiae Brief — Cutter v. Wilkinson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A13

## Record

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

## Text

No. 03-9877

IN THE

Supreme Court Of The United States

JON B. CUTTER. ET AL...
Petitioners.

REGINALD WILKINSON. ET AL..
Re spondenty,

On Writ Of Certrorari
To The United States Court Of Appeals
bor The Sixth Circut

BRIEF OF AMICT CURTAE AMERICAN JAIL
ASSOCIATION, ASSOCTATION OF STATE
CORRECTIONAL ADMINISTRATORS, NATIONAL
MAJOR GANG TASK FORCE, NATIONAL
SHERIFFS’ ASSOCTATION, NEW YORK STATE
SHERIFES* ASSOCIATION, AND NORTH
AMERICAN ASSOCIATION OF WARDENS &
SUPERINTENDENTS IN SUPPORT OF
RESPONDENTS

MICHAEL H. CARPENTER MICHAEL No. BEEKHUIZEN

HePEREY AJ LIPPS Counsel of Record
CARPENTER & LIPPS LLP CARPENTER & LIPPS LLP
280 Plaza, Suite 1300 280 Plaza. Suite 1300

280 North High Street 280 North High Street
Columbus, Ohto 43215 Columbus, Ohio 43215
(614) 365-4100 (614) 3605-4 100

Counsel for Anuct Curtae

TABLE OF CONTENTS

Page

RE CI Cy SUD biuiiicisiiisnaniivnidinlncnntennineniaaiiimpaiian ii

STATEMENT OF INTEREST OF AMICI CURIAE............. I

OPPS OIE FPR E sevcccccenesscnesecsnessosstsniasustiiiniiiaes 3

SEEEDEPUEET | <snsciescsniciueitsinsistinsouiiinnicieiieiiaeaiitelinshiimidaiiiiiatiniiiaiia lai 4
I. Gangs And Gang Violence Are Among

The Most Pressing Concerns In The
Highly Regulated Corrections
III sccstcsnscsacecnsnvniaseiiiisigiaibaesammtdabines 4

Il. Gang Members’ Seek Religious
Accommodations In Order To Obtain
Exemptions From The Highly Regulated
Corrections Environment .........................00+++. 8

Il. The Least Restrictive Means Test
Greatly Exacerbates The Abuse Of
Religious Accommodations ..................0000+ 12

A. The Least Restrictive Means Test
PCOS TRETIBIOR ....2000ccccscccsccesesceees 13

B The Least Restrictive Means Test
Has Caused An Explosion In
Inmate “Religious” Demands........... 14

xd The Least Restrictive Means Test
Causes An Excessive
Entanglement With Religion............ 15

IO e AL UITS wessnsnncnsnnsansimnenasicanntanisigaienmasniieaiabeieaiensiiiiadiibiel 17

TABLE OF AUTHORITIES
Page(s)
CASES
O'Lone v. Estate Of Shabazz, 482 U.S. 342 (1987)... 17
Turner v. Safley, 482 U.S. 78 (1987)...............cccccccccscsssssseees 16
STATUTES
Religious Freedom Restoration Act, 42 U.S.C. §§ :
Religious Land Use And Institutionalized Persons
ae 3, 12
OTHER AUTHORITIES

Dangerous Convictions: An Introduction To
Extremist Activities In Prisons (Anti-Defamation
a aac eeideaceatncadeneadidadeiaainimaatgnineemonmonisisenene 10, 11, 12
Davis, Heather, Comment: Inmates’ Religious
Rights: Deference To Religious Leaders And
Accommodation Of Individualized Religious
Beliefs, 64 Alb. L. Rev. 773 (2000)..................c.cscscssssseeeees 8, 15
Developments In The Law -- The Law Of Prisons,
In The Belly Of The Whale: Religious Practice In
Prison. 115 Harv. L. Rev. 1891 (2002)........0....... 4,12, 13,14
Fischer, Daryl R., Ph.D., Arizona Department Of
Corrections: — Security Threat Group (STG)
Program Evaluation, Final Report (National
Criminal Justice Reference Service 2002) ............:cccccc00cc0000s 5

ill
TABLE OF AUTHORITIES--Continued

Fleisher, Mark S. and Decker, Scott H., An
Overview Of The Challenge Of Prison Gangs,
Corrections Management Quarterly (Winter 2001) ....... 4,5,6

Frey, Sara Anderson, Comment: Religion Behind
Bars: Prison Litigation Under The Religious
Freedom Restoration Act In The Wake Of Mack v.
O'Leary, 101 Dick. L. Rev. 753 (1997) ............ssccceesseees 10, 13

Gaes, Gerald G., et al., The Influence Of Prison
Gang Affiliation On Violence And Other Prison
Misconduct, The Prison Journal, Vol. 82, No. 3

Knox, George W., Ph.D., An Introduction To
Gangs (New Chicago School Press 2000) ..............:::e0e00 9, 10

Knox, George W., Ph.D., A National Assessment
Of Gangs And Security Threat Groups (STGs) In
Adult Correctional Institutions: Results Of The
1999 Adult Corrections Survey, Journal Of Gang
Research, Vol. 7, No. 3 (Spring 2000) .............cccceeesseeeeeeees 5,6

Review Of The Federal Bureau Of Prisons’
Selection Of Muslim Religious Services Providers
(U.S. Department of Justice, Office of the
Inspector General April 2004)...............ccccccccssscosesesseeeess 9, 12

Tucker, Kim, Preliminary Results Of The RFRA
Survey Of All States: The Impact Of The
Religious Freedom Restoration Act On_ State
Correctional Systems (Florida Attorney General's

SIE III ssinhastushdeneniiendiiaanerenennsnsentecensnnsoonnecovseeneness 10, 13, 14

iV
TABLE OF AUTHORITIES--Continued

Zaitzow, Barbara H., Ph.D. and Houston, James G.,
Ph.D., Prison Gangs: The North Carolina
Experience, Journal Of Gang Research, Vol. 6, No. 3
RE FI i ccncenesencnssincsinininmusaienenininihauisainaisisiussnitanseaspinieiiil

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae submit this brief in order to provide the
Court with an understanding of the problem presented by
gang violence in correctional institutions, and how that
problem is impacted by the Religious Land Use And
Institutionalized Persons Act.’

The American Jail Association is a national, non-
profit organization formed in 1981. It is dedicated to
supporting those who work in and operate the Nation’s jails.
It conducts training conferences and certification programs
for jail officers and managers, and is the publisher of
American Jails magazine. The association has approximately
4,200 members nationwide.

The Association of State Correctional Administrators
is a not-for-profit organization formed in 1970. Its
membership consists of the Directors of Corrections for the
50 States, the Federal Bureau of Prisons, and four large urban
jail systems, as well as U.S. territories and commonwealths.
The Association’s major goals are to influence and shape
correctional policy; to identify proven correctional practices,
standards, and performance measures; and to share with its
members training and professional development programs
designed to enhance members’ professional skills and
awareness of advancements in the profession.

The National Major Gang Task Force is a non-profit
organization formed in 1993 for the purpose of minimizing
the effects of security threat groups, gangs and terrorists in

' Letters of consent to the filing of this brief have been submitted to the Court.
No counsel for any of the parties authored this brief in whole or in part.
Furthermore, no person or entity, other than the amici curiae, their members or
their counsel, made any monetary contribution to the preparation or
submission of this brief.

Le)

jails, prisons and communities. It conducts annual training
conferences, conducts studies, and partners with corrections
and law enforcement officials throughout the country,
regarding gang intervention and management strategies. The
National Major Gang Task Force has approximately 1,600
members nationwide.

The National Sheriffs’ Association was founded in
1940 to represent the criminal justice and law enforcement
activities of the Nation’s 3,088 Offices of Sheriff, including
the operation of local jails. It is a non-profit association with
over 21,000 members. Among other things, it provides
training to jail officers and supervisors, and prepares jail
manuals, guidelines and handbooks relating to all aspects of
jail operations.

The New York State Sheriffs’ Association is a non-
profit organization formed in 1934 for the purpose of
assisting Sheriffs in the efficient and effective delivery of
Sheriffs’ services to the public, including maintenance and
operation of county jails. Among other things, it develops
accreditation standards for jail administrators, and conducts
conferences and training sessions for jail administrators and
other supervisory jail officers. The Association is composed
of all Sheriffs in the State of New York.

The North American Association of Wardens &
Superintendents is a non-profit organization formed in the
1940s. It is committed to promoting and supporting the
needs of jail and prison wardens, superintendents and
administrators throughout North America. It provides a
forum, through conferences and newsletters, for jail and
prison officials to share and exchange information and ideas,
and offers training workshops in connection with other
professional organizations. The Association — has
approximately 900 members throughout the United States
and Canada.

3
SUMMARY OF ARGUMENT

Correctional institutions are highly — regulated
environments in which security concerns dominate. In
particular, gang violence is one of the most pressing
problems currently facing corrections administrators
throughout the country. One recent survey has estimated that
approximately one-fourth of all inmates in adult male state
correctional institutions are gang members. The rate is even
higher in maximum security institutions, with roughly one-
third of the inmate population belonging to a gang or other
security threat group. As the evidentiary record in this matter
reveals, controlling gang violence is not simply a matter of
administrative convenience, but literally a matter of life and
death for inmates and correctional staff.

Given the highly regulated nature of correctional
institutions, participation in religious services is one of the
few opportunities for inmates to obtain special privileges or
exemptions from normal limitations on daily activities. Gang
members are aware of the legal protections afforded to
religious practice, and unfortunately, seek to take advantage
of these special privileges. Gang members use religious
affiliation and practice for recruitment and identification of
members, and as a means of organizing criminal activities in
correctional institutions.

The least restrictive means test -- mandated by the
Religious Land Use And _ Institutionalized Persons Act
(“RLUIPA”) and the former Religious Freedom Restoration
Act (“RFRA”) -- has greatly exacerbated gang members’
abuse of religious accommodations. Specifically, the least
restrictive means test has: (1) promoted the proliferation of
various religions, including numerous pagan “religions”
dominated by white supremacists, such as Odinism and
Asatru; (2) caused the number of inmate “religious” demands
to skyrocket, creating an excessive burden on correctional

4

chaplains and officials, and often causing a reduction in the
provision of religious services to inmates; and (3) caused an
excessive entanglement of corrections officials with religion
by forcing those officials to scrutinize closely every claimed
“religion” and every request for “religious” accommodation.
In sum, RLUIPA restricts the ability of corrections officials
to address the security problems presented by gangs in
correctional institutions throughout the country.

ARGUMENT

I. Gangs And Gang Violence Are Among The Most
Pressing Concerns In The Highly Regulated
Corrections Environment.

Correctional institutions are highly — regulated
environments in which security concerns dominate. Even
seemingly “administrative or technical concerns,” including
“uniformity of schedule, appearance, and diet,” involve
considerations of security. See Developments In The Law --
The Law Of Prisons, In The Belly Of The Whale: Religious
Practice In Prison, 115 Harv. L. Rev. 1891, 1891, 1899
(2002) (“Developments”). Corrections administrators must
consider not only the administrative costs of a policy, but
also the “likelihood of inmate resentment, the appearance of
discrimination, and the possibility of inmates manipulating
the system for personal advantage[.]” /d. at 1899.

Gangs and gang violence are the primary threats to
management of the highly regulated corrections environment.
See Fleisher, Mark S. and Decker, Scott H., An Overview Of
The Challenge Of Prison Gangs, Corrections Management
Quarterly (Winter 2001) at 2. In fact, the problem of gangs
and gang violence in correctional institutions is widespread
and growing. A 1999 survey of correctional institutions in 47
states concluded that approximately “one fourth of all male
inmates confined in adult state correctional institutions are

5

gang members.” Knox, George W., Ph.D., A National
Assessment Of Gangs And Security Threat Groups (STGs) In
Adult Correctional Institutions: Results Of The 1999 Adult
Corrections Survey, Journal Of Gang Research, Vol. 7, No. 3
(Spring 2000) (“A National Assessment”) at 5. This
represented a dramatic increase from the 1991 gang density
level of only one in ten male inmates. /d.

Furthermore, it is widely agreed that gangs are
“responsible for most prison violence.” Fleisher, supra, at 5.
A 1985 study, for example, found that gangs “caused 50
percent or more of the prison violence” at a time when gang
density was estimated at only three percent of the prison
population. /d. A 2002 study of gang violence in Arizona
correctional institutions concluded that gang members
“commit serious disciplinary violations at rates two to three
times higher than do non-gang inmates housed in units of the
same security level” and “members of certified prison gangs
(STGs) recorded the highest violation rates in the case of
assault, drug violations, rioting, weapons violations, and
other violent violations.” Fischer, Daryl R., Ph.D., Arizona
Department Of Corrections: Security Threat Group (STG)
Program Evaluation, Final Report (National Criminal Justice
Reference Service 2002) at ii; see also Gaes, Gerald G., et
al., The influence Of Prison Gang Affiliation On Violence
And Other Prison Misconduct, The Prison Journal, Vol. 82,
No. 3 (2002).’

Indeed, the increase in gang density during the 1990s
corresponded to an increase in gang violence within adult
state correctional institutions. In 1992, “only one out of ten
institutions reported gang members being a problem in terms
of assaults on the staff.” Knox, A National Assessment,
supra, at 6. By 1999, however, “about one-third of all adult

? The Knox, Fischer and Gaes studies cited above are available online at
http://www.ncjrs.org/gangs/publications.html.

6

State correctional institutions would report gang members as
a problem in terms of assaults on staff.” /d. Similarly, in
1992, only “a fourth of the institutions reported gang
members as a problem in terms of threats against staff
members.” /d. at 7. By 1999, that percentage had increased
to one half of all correctional institutions. /d.

The problem of gangs and gang violence is
particularly acute in maximum security institutions because
gang density increases by level of institutional security. “[{I]n
a typical maximum security adult state correctional
institution, in the year 1999, about 32.7 percent of the
inmates could be expected to be gang/STG members.” Knox,
A National Assessment, supra, at 5. This is not surprising
given that the “highest security prisons hold the most violent
and disruptive inmates who are most likely to be as
disruptive inside as they were outside.” Fleisher, supra, at 2.

The evidentiary record in this matter confirms the
findings of the scholars and researchers discussed above. For
example, Matthew Meyer is the former Security Threat
Group/Investigation Coordinator for the Ohio Department of
Rehabilitation and Correction (“ODRC”). Affidavit Of
Matthew Meyer at 4 1 (Jt. App. 229). As Mr. Meyer
explained, gang activity “is a very serious problem with
ODRC’s institutions” and “is a significant cause of violence
between inmates as a result of intra and inter-gang disputes.”
Id. at 4 2 (Jt. App. 230). Furthermore, gang activity “creates
alternate power structures” that “pose a direct threat to
ODRC’s ability to maintain safety and security within its
prisons.” Jd. (Jt. App. 230).

Mr. Meyer’s deposition testimony provides a stark
iustration of the very real threat of violence posed by gang
members in ODRC’s institutions. Mr. Meyer, for example,
provided the following testimony regarding one of the
putative class members in this case:

Q. Do you know why he received Level 3
participation?

A. Yes I do.
Q. Could you tel! me.

A. He received it for sure — for one
reason, from the fact that he killed
Officer Davis in °92 at Mansfield.

Q. And could you tell me again what
Level 3 meant.

A. Disruptive.

Q. Could you read the paragraph below
notes.

A. Yes. It says inmate killed CO Davis ir
"92 at Mansfield. Incident believed to
be Aryan Brotherhood related.

Q. What was the ethnicity of Officer
Davis?

A. He was black.

Deposition Of Matthew Meyer at 62-63 (Jt. App. 148).
Similarly, another putative class member was involved with
the stabbing of a black inmate as a result of a power fight
within the Aryan Brotherhood. /d. at 70 (Jt. App. 154).
Finally, Mr. Meyer offered the following testimony:

Q. Let me put it this way: Could you
please mention any personal

8

experiences you have to support your
conclusion in Paragraph 3 of your
affidavit.

A. Well, I guess one of the — the biggest
experiences I have is the Lucasville —
SOCF riot on April 11"", 1993, wherein
a group of inmates — actually three
different security threat groups were
involved in a riot which took the lives
of, I believe, nine inmates and one
staff member, cost the State roughly
$63 million.

Id. at 82 (Jt. App. 159). In short, control of gang activity
within correctional institutions is not simply a matter of
administrative converiience, but literally a matter of life and
death for inmates and correctional staff.

Il. Gang Members Seek Religious Accommodations
In Order To Obtain Exemptions From The Highly
Regulated Corrections Environment.

Given the highly regulated nature of correctional
institutions, the practice of religion presents one of the few
opportunities for inmates to obtain special privileges or
exemptions from normal limitations on daily activities.
“Inmates who are members of religious groups in
correctional facilities are entitled to be accommodated in
accordance with their religions’ mandates, and thus
‘religious’ inmates receive special privileges.” Davis,
Heather, Comment: Inmates’ Religious Rights: Deference
To Religious Leaders And Accommodation Of Individualized
Religious Beliefs, 64 Alb. i. Rev. 773, 784 (2000). These
special privileges often include possession of religious
literature and objects, and accommodations for diet and
appearance. /d.

The practice of religion also provides one of the few
Opportunities for inmates to meet in a group setting. In the
federal prison system, for example, the “chapel is one of the
few areas . . . where large numbers of inmates are permitted
to meet as a group and to converse.” A Review Of The
Federal Bureau Of Prisons’ Selection Of Muslim Religious
Services Providers (U.S. Department of Justice, Office of the
Inspector General April 2004) (“Review”) at 39. In short,
“belonging to a religious group while incarcerated is one of
the few ways to actually receive more privileges and alter the
conditions of confinement.” Davis, supra, at 784-785.

Gang members are well aware of the legal protections
afforded to religious practice, and unfortunately, seek to take
advantage of these special privileges. In one survey of prison
gang members, one third of the members admitted that th °
groups had used “religion as a ‘front’ for gang busines..
Zaitzow, Barbara H., Ph.D. and Houston, James G., Ph.D.,
Prison Gangs: The North Carolina Experience, Journal Of
Gang Research, Vol. 6, No. 3 (Spring 1999) at 29. As one
scholar concluded, “[uJnder law today, almost anything,
including witcheraft, could be protected as an established
system of beliefs (i.e., having the protections afforded to
mainstream religions). Prison inmates in America have
certainly discovered this loophole.” Knox, George W..,
Ph.D., An Introduction To Gangs (New Chicago School Press
2000) (“Introduction To Gangs”) at 232; see also Affidavit
Of Matthew Meyer at 47 16-17 (Jt. App. 234-235) (gangs
“frequently use religion to facilitate and cover their illicit
activities”); Affidavit Of David Schwarz at 4] 11-12 (Jt. App.
202) (“many gangs have adopted ‘religious’ postures to []
obtain protection for their illicit activities”).

The ability to meet in a group setting is »ne of the
most powerful privileges, which gang members abuse by
becoming religious adherents. “[I]nmates who are otherwise

10

separated can come together to attend congregate religious
activities, where they can plan and execute the operations of
their [gang]. Affidavit Of Matthew Meyer at J 16 (Jt. App.
234). “Gang members in prison know this routine: they go
to chapel to act like they are a prayer group, but it is just a
meeting place for the gang members to transact business.”
Knox, Introduction To Gangs, supra, at 21.

For example, a gang operating in a District of
Columbia prison “used ‘religious’ activities to facilitate
prostitution, drug dealing and the production and distribution
of pornography within that prison.” Affidavit Of Matthew
Meyer at ¥ 16 (Jt. App. 235); see also Frey, Sara Anderson,
Comment: Religion Behind Bars: Prison Litigation Under
The Religious Freedom Restoration Act In The Wake Of
Mack v. O'Leary, 101 Dick. L. Rev. 753, 772-773 (1997),
Similarly, in Wyoming, prison officials “felt compelled by
RFRA to allow a group of ‘Luciferians’ to have an
unsupervised service in the prison chapel. In an apparent
burst of religious enthusiasm, the Luciferian inmates burned
Christian hymnals and Bibles . . . causing substantial smoke
damage to the Chapel . and, obviously, creating a
significant safety hazard to the life and safety of all inmates
and staff within the institution.” Tucker, Kim, Preliminary
Results Of The RFRA Survey Of All States: The Impact Of
The Religious Freedom Restoration Act On State
Correctional Systems (Florida Attorney General's Office
1996) at n.3 (Jt. App. 213).

Abuse of religious accommodations is particularly
rampant among white supremacist gangs. “Christian Identity
and Asatru/Odinism are the two religions most commonly
used by white supremacists to get religious privileges{.]”
Dangerous Convictions: An Introduction To Extremist
Activities In Prisons (Anti-Defamation League 2002)

(“Dangerous Convictions”) at 35.° “Asatru” is “an Icelandic
term for an ancient pagan Northern European religion that
has been revived in modern times” and which “incorporates
the worship of Odin, Thor and other Norse gods and
goddesses.” Jd. at 37. Odinism is a form of Asatru. Id.
Christian Identity, in turn, “is a racist and anti-Semitic
religious sect whose members believe that whites are the
descendants of the Lost Tribes of Israel and are God’s chosen
people; many also believe that Jews are descended from
Satan.” Jd. at 26. Christian Identity includes such racist
groups as Aryan Nations. /d. at 35.

These white supremacist groups are we!" aware of the
accommodations made for religious adherents and actively
seek to exploit them. In one Christian Identity newsletter, for
example, inmates were advised as follows:

“You are not compromising your faith or your
race [] by setting the services up on an
established framework or constitution . . . or
an established fundamentalist Christian
denomination recognized by prison officials . .
. Obtain a list and choose the most appropriate
one, and study their organization. Then, when
worship begins, the . . . Israel message may be
gradually introduced and no red flags will pop
up. If any minorities attended at the outset,
they'll soon leave out of boredom. The Holy
Bible is the Life Manual of the white race!’

Dangerous Convictions, supra, at 34.
In addition to using literature for recruitment and

training, white supremacist groups also use “religious”
symbols for identification purposes. “Thor's hammer” is an

* Available at hitp://www.adl.org/learn/Ext_terr/Dangerous_Convictions.pdf.

12
example of a gang symbol used by Asatru/Odinists. See
Dangerous Convictions, supra, at 39. Such “identifiers” are
used to indicate gang affiliation, to “build unity and
cohesiveness,” and to “identify each other for purposes of
violent altercations.” Affidavit Of Matthew Meyer at 44 12-
14 (Jt. App. 233-234).

Not surprisingly, correctional institutions “have
struggled with the issue of political and ideological groups,
including hate groups, masquerading as __ religious
organizations.” Developments, supra, at 1903-1904.
Nonetheless, despite concern regarding the adoption by white
supremacist groups of pagan religions such as Odinism and
Asatru, “these groups have gained wide acceptance as prison
religious communities, and most states permit them to
function at some level.” /d. at 1903-1904; see also
Dangerous Convictions, supra, at 39.

As the U.S. Department of Justice has concluded,
“[p]rison systems throughout the world have been and
continue to be breeding grounds for radicalism, recruiting
grounds for extremist movements, and facilities for the
planning and training of radical activities.” Review, supra, at
6.

Ill. The Least Restrictive Means Test Greatly
Exacerbates The Abuse Of Religious
Accommodations.

RLUIPA, like RFRA before it, imposes a least
restrictive means test on corrections administrators. The least
restrictive means test has greatly exacerbated gang members’
abuse of religious accommodations in three ways: (1) it has
promoted the proliferation of various religions, including
numerous pagan “religions” dominated by white
supremacists, such as Odinism and Asatru; (2) it has caused
the number 0° inmate “religious” demands to skyrocket,

13

creating an excessive burden on correctional chaplains and
officials, and often causing a reduction in the provision of
religious services to inmates; and (3) it has caused an
excessive entanglement of corrections officials with religion
by forcing those officials to scrutinize closely every claimed
“religion” and every request for “religious” accommodation.

A. The Least Restrictive Means Test Promotes
Religion.

Prior to enactment, one concern about RFRA was
“that inmates would learn to create ‘religions’ just to obtain
special benefits or to avoid certain prison regulations.” Frey,
supra, at 765. This is, in fact, what happened. In 1996, the
Florida Attorney General’s Office conducted a survey of
state and territorial correctional institutions regarding the
impact of RFRA. See Tucker, supra (Jt. App. 207). The
survey revealed that the “enactment of RFRA has resulted in
the proliferation of claims for exemptions from prison
security regulations and requests for special privileges,
grounded in obscure or previously little-known ‘religions’,
including: Wicca, Satanism, Odinism, Asartu, and
Luciferianism.” (Jt. App. 210).

One recent survey of state correctional officials
determined that the “average number of religious groups
listed by state correctional departments is approximately
twenty.” Developments, supra, at 1900; see also id. at 1896
n.28 (listing thirty-three states surveyed). “Of the states
surveyed, Texas lists by far the largest number of faith
groups, with 144 distinct religious classifications.” Jd. at
1900. By way of example, the State of Washington
recognizes the following twenty-three religions: Astara
(Asatru), Buddhism, Church of Christ Scientist, Church of
Jesus Christ Christian (Aryan Nation), Hindu, Islam,
Jehovah’s Witness, Judaism, International Society for
Krishna Consciousness, Latter-Day Saints, Moorish Science,

I4

Nation of Islam, Native American, Native American Church.
Odinism, Protestant, Rastafarian, Roman Catholic. Seventh
Day Adventist, Seventh Day Church of God, Sikh, Unity, and
Wicca. /d. at 1900 n.48.

As noted previously, several of these “religions” are,
in fact, closely identified with white supremacist groups, and
are present in the Ohio correctional institutions overseen by
respondents in this matter. Affidavit Of Matthew Meyer at
W1 5-6. 9-10 (Jt. App. 231-233). The RLUIPA/REFRA least
restrictive means test has undoubtedly been a strong force
promoting the proliferation of these “religions.”

B. The Least Restrictive Means Test Has
Caused An_ Explosion In Inmate
*“Religious’”’ Demands.

Imposition of the least restrictive means test has also
caused an explosion in inmate “religious” demands. This has
greatly burdened corrections officials charged with the
provision of religious services, and ironically resulted in a
reduction in the ability of those officials to provide religious
services to inmates. The 1996 survey conducted by the
Florida Attorney General's Office revealed that, after
enactment of RFRA, “there has been a tremendous increase
in the number of lawsuits and internal demands for
‘religiously motivated’ alterations of prison practices,
creating significant burdens on the resources of corrections
Systems, State attorneys general, and the courts.” Tucker,
supra (Jt. App. 210).

Again, the experience of the Ohio Department of
Rehabilitation and Correction (“ODRC”) is consistent with
this finding. David Schwarz is the former Religious Services
Administrator for the South Region of ODRC. Affidavit Of
David Schwarz at ¥ 1 (Jt. App. 199). In that position, Mr.
Schwarz oversaw the delivery of religious services and

15

operational issues involving religious matters. /d. His duties
included “developing new religious programming, recruiting
paid staff and volunteers for the delivery of religious services
and acting as a liaison between O.D.R.C. and the religious
community at large.” /d.

Prior to enactment of RFRA, Mr. Schwarz “spent
little time on litigation related issues.” Affidavit Of David
Schwarz at 4 3 (Jt. App. 200). After enactment of RFRA,
however, Mr. Schwarz was required to spend “between
fifteen and twenty percent of [his] time working with the
Office of the Ohio Attorney General in connection with
lawsuits filed under R.F.R.A.” and “between sixty to seventy
percent of [his] time working with institutional staff to
determine how to comply with R.F.R.A.” Jd. at 44 3-4 (Jt.
App. 199-200). This resulted in “a very significant reduction
in the amount of time spent on actually facilitating the
delivery of religious services.” Jd. at 5 (Jt. App. 200). This
problem did not affect Mr. Schwarz alone. All religious
services personnel were forced to spend more time dealing
with RFRA issues, and less time actually providing religious
services to inmates. /d. at 4{ 8-10 (Jt. App. 201-202).

c. The Least Restrictive Means Test Causes
An Excessive Entanglement With Religion.

The least restrictive means test also causes an
excessive entanglement of corrections officials with religion
by forcing those officials to scrutinize closely every claimed
“religion” and every request for “religious” accommodation.
First, as one commentator noted, “[c]Jorrectional facility
officials lack the requisite knowledge of each religious
group's practices, norms, and traditions. Without such
knowledge, correctional facility officials are not able to
effectively determine whether an inmate is a bona-fide
member of a religious group.” Davis, supra, at 777. As a
result of the least restrictive means test, religious services

16

Staff are required to investigate “the authenticity and
requirements of such ‘religions..” Affidavit Of David
Schwarz at J 12 (Jt. App. 202).

Second, as this Court anticipated, the least restrictive
means test “distort[s] the decisionmaking process, for every
administrative judgment would be subject to the possibility
that some court somewhere would conclude that it had a less
restrictive way of solving the problem at hand.” Turner v.
Safley, 482 U.S. 78, 89 (1987). Corrections officials are well
aware of this problem. Because of the least restrictive means
test, religious services staff expend large amounts of time to
“set up and shoot down’ all possible alternatives for dealing
with ‘religiously’ motivated requests for alterations of normal
prison operations.” Affidavit Of David Schwarz, Exhibit |
(Jt. App. 204). Failure to do so opens the possibility of
judicial second-guessing noted by this Court in Turner.

Third, because of the abuse of religious
accommodations by gang members, the provision of religious
services has, in effect, become a security issue. Corrections
officials, however, must still justify every infringement of
“religion” under the least restrictive means test. This results
in an excessive involvement of corrections officials with
every demand for religious accommodation. In ODRC
institutions, for example, “a number of white supremacist
groups claimed to be pursuing Christian Identity beliefs and
the tenants of the Church Of The Creator in an effort to cover
their otherwise illicit, and disruptive activities[,]” while other
inmates sought to establish “several new ‘religions’ which
purported to require such accommodations as group martial
arts classes.” Affidavit Of David Schwarz at 4 11-12 (Jt.
App. 202). Obviously, the “cumulative result of these
activities was that religious staff were required to devote
significant amounts of time to investigating the legitimacy
[sic] these ‘religious’ groups and their ‘religious’ claims in

17

order to assist security staff in dealing with the problems
posed by those groups[.]” /d. at ¥ 11 (Jt. App. 202).

In sum, this Court has previously recognized that the
“evaluation of penological objectives is committed to the
considered judgment of prison administrators” and that
corrections officials should have the ability “‘to anticipate
security problems and to adopt innovative solutions to the
intractable problems of prison administration[.]’” O’Lone v.
Estate Of Shabazz, 482 U.S. 342, 349 (1987). RLUIPA, like
RFRA before it, prevents corrections administrators from
doing so. The problem of gang violence, along with abuse by
gang members of religious accommodations and the
corresponding threat to the health and safety of inmates and
corrections staff, is one such intractable security problem that
should be left to the considered judgment of corrections
administrators.

CONCLUSION

For the foregoing reasons, the amici curiae urge the
Court to affirm the judgment of the United States Court of
Appeals for the Sixth Circuit. :

Respectfully submitted,

MICHAEL N. BEEKHUIZEN
Counsel of Record
MICHAEL H. CARPENTER
JEFFREY A. LIPPS
CARPENTER & LIPPS LLP
280 Plaza, Suite 1300
280 North High Street
Columbus, Ohio 43215
(614) 365-4100

Counsel for Amici Curiae
February 11, 2005

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A13. Public record. Not legal advice.