Amicus Curiae Brief — Cutter v. Wilkinson

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No. 03-9877 OFF)

IN THE

Supreme Court of the United States

JON B. CUTTER, ET AL.,

Petitioners,

V.

REGINALD WILKINSON, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE COALITION

FOR THE FREE EXERCISE OF RELIGION

ANTHONY R. PICARELLO, JR.

Counsel of Record

DEREK L. GAUBATZ

THE BECKET FUND FOR K. HOLLYN HOLLMAN

RELIGIOUS LIBERTY BAPTIST JOINT

1350 Connecticut Ave., NW COMMITTEE

Suite 605 200 Maryland Ave., NE

Washington, DC 20036 Washington, DC 20002

Phone: (202) 955-0095 Phone: (202) 544-4226

Counsel for Amicus Curiae Of Counsel

December 20, 2004

TABLE OF CONTENTS

TRS GP RF ee iccncrctnceiensnsnssinnimnniianesiaiin ill

SS Cl AD centiciiencsesmmnnesinnnniineniinennsiinnionantl l

SUMMARY OF ARGUMENT.............cccccccsssssssssssscsssesecens l

PETRIE ccnenneessnstininmaienmiiiiiaihiaians 4

I. RLUIPA Section 3 Is Consistent with the

TE CID ccnncinscscsetscsnninvianecsstitnevmunainniies 4

A. RLUIPA Has a Secular Purpose.................:.ccceeeeees 4

B. RLUIPA Does Not Have the Primary Effect of

AT CR cctsscnnstinnintieinpnnimmuadis 7

1. RLUIPA does not cause the government itself

to advance religious exercise, but rather to

avoid interference with private actors as they

engage in religious EXeTCISE ..............:ccceeeeeeeeees 7

2. None of the rationales proffered by the lower

court distinguishes RLUIPA from the myriad

accommodations of religious exercise by the

political branches that “follow[ ] the best of

CUP CD cecneqnnesntmvtnnentinnmitniaiannssnnnien 9

a. The Establishment Clause does not

prohibit laws passed solely to

accommodate religious exercise................ 10

b. The mandates of the Free Exercise

Clause are not a ceiling on permissible

accommodation of religious exercise........ 19

c. RLUIPA does not have any impermissible

effects on the interests of others................. 20

d. RLUIPA scrupulously avoids any

impermissible endorsement of religion .....24

C. RLUIPA Does Not Foster Excessive

Entanglement with Religion.................:sseeeeeeeeees 27

II. RLUIPA Section 3 Is a Constitutional Exercise of

Congress’ Spending Power ................ssccsscssscsssssseceeses 29

III. RLUIPA Section 3 Is a Constitutional Exercise of

Congress’ Commerce Power ..............sscsscccsscssscsessssees 29

is echseiceiiniatteiiditiiensinges bibaddainnedanitensiestenntese 30

TABLE OF AUTHORITIES

Cases

Arizona v. Evans, 514 U.S. 1 (1995)...........ccccccssssssssssssssesees 1]

Attorney Gen. v. Desilets, 636 N.E.2d 233

SEER: SITU aiicsipschsteteltasnainarinniieihipiabbadeiitaiananiaienenibenedsioninnts 13

Benning v. Georgia, Nos. 04-10979 & 02-00139,

__ F.3d__, 2004 WL 2749172

Be TB i aceccctcniccscdiniintenscsntoneesievendes passim

Castle Hills First Baptist Church v. City of Castle

Hills, No. SA-01-CA-1149, 2004 WL 546792

Sf EE nee 3

Charles v. Frank, No. 04-1674, 2004 WL 1303403

gk ERE UO one emote 21

Charles v. Verhagen, 348 F.3d 601 (7" Cir. 2003).......passim

Christ Universal Mission Church v. Chicago,

No. 01-C-1429, 2002 U.S. Dist. LEXIS 22917

(N.D. Ill.Sept. 11, 2002) vacated on other grounds

2004 WL 595392 (7™ Cir. Mar. 26, 2004) .....c..ccsseessesseeeees 3

City of Boerne v. Flores, 521 U.S. 507 (1997).........cccccseseeeees 2

Coronel v. Paul, 316 F. Supp. 2d 868 (D.Ariz. 2004) ........ 23

Corporation of Presiding Bishop v. Amos,

SD a SEE CTP ettiicttntntirnmimnieninvmnmnnen passim

iil

Cottonwood Christian Center v. City of Cypress,

218 F. Supp. 2d 1203 (C.D. Ca. 2002)...........cceccesseeseeneeees 3

County of Allegheny v. ACLU, 492 U.S. 573 (19839)............ 24

CRUE a BR, Fe Ws Be CO ID serecterisiicesniennicscnnsscspinnianiians 7

Cutter v. Wilkinson, 349 F.3d 257 (6" Cir. 2003).......... passim

Dettmer v. Landan, 799 F.2d 929 (4™ Cir. 1986)......c.c0000e+. 28

E.E.O.C. v. Catholic Univ. of America,

ae Fe Ces Gate SD winviennsennciesssonsennonniieeeniatiite 3

Emplyment Div. v. Smith, 494 U.S. 872 (1990).......... 5, 19, 24

Epperson v. Arkansas, 393 U.S. 97 (1968) ..........cscccsseeeseees 15

Estate of Thornton v. Caldor, Inc.,

SOUS VERE, SHEP AUPE ccescesbttencintininnptitcinsindnidtinainiliniaiatesies 21, 22

First Covenant Church of Seattle v. City of Seattle,

ee ey Se etinictsinieticinebinintpinnnitatinanaienianiin 13

Flores v. City of Boerne, 73 F.3d 1352 (5™ Cir. 1996),

rev'd on other grounds, 521 U.S. 507 (1997) ..........c.s0000 3

Freedom Baptist Church v. Middletown,

204 F. Supp. 2d 857 (E.D. Pa. 2002)..............scccssccsseeeseeeees 3

Gerhardt v. Lazaroff, 221 F. Supp. 2d 827

(S.D. Ohio 2002) overruled by Cutter v. Wilkinson,

PTE CAs ee itrictcernitierstencnenenntitninienineins 2

Gillette v. United States, 401 U.S. 437 (1971) .......ccccscesseseeees 5

iv

conn cele AOL LEO IA ty '

Glick v. Norris, No. 5:03CV00160 (E.D. Ark.

eG 2 RES ae ee

Gordon v. Pepe, No. 00-10453, 2003 WL 1571712

a Ms Ns As III carasiinicisnaisiianinindenichinitinetnbidit

Guru Nanak Sikh Society v. County of Sutter,

326 F. Supp. 2d 1140 (E.D. Cal. 2003)...

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

Hernandez v. Commissioner, 490 U.S. 680 (1989).......

Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000) .......

In re Browning, 476 S.E.2d 465 (N.C. 1996)...............

In re Young, 141 F.3d 854 (8th Cir. 1998)...

Jama v. United States, Nos. 97-3093 & 98-1282,

__ F.Supp. 2d ___, 2004 WL 2538275 (D. N.J.

SED. Fay a iecressstnctnreemennesents shevaneneeneeeuemnevenvennes

Johnson v. Martin, 223 F. Supp. 2d 820 (W.D. Mich.

2002) overruled by Cutter v. Wilkinson,

349 F.3d 257 (6 Cir. 2003)......ccccsccsescessssesessssesseeees

Jones v. Toney, No. 5:02CV00415 (E.D. Ark.

ERS RS

Katcoff v. Marsh, 755 F.2d 223 (2° Cir. 1985)......c..000+.

Kent v. Johnson, 821 F.2d 1220 (6 Cir. 1987) ............

Kikumura v. Hurley, 242 F.3d 950 (10" Cir. 2001)...

Kiryas Joel v. Grumet, 512 U.S. 687 (1994).............00.

v

LaFevers v. Saffle, 936 F.2d 1117 (10" Cir. 1991)......c..0..0. 28

Larkin v. Grendel's Den, 459 U.S. 116 (1982).......cccccceeeeeeeee 5

Lawson v. Singletary, 85 F.3d 502 (11"™ Cir. 1996) ...........+. 21

Lee v. Weisman, 505 U.S. 577 (1992)........ccccssscssssssescsseseeseees 6

Lemon v. Kurtzman, 403 U.S. 602 SUP ei iastsctilinapibinewbvitiven 4,27

Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002)........... 23

Life Teen, Inc. v. Yavapai County,

No. Civ. 01-1490-PCT (D. Ariz. Mar. 26, 2003)............... 3

Love v. Evans, No. 2:00-CV-91 (E.D. Ark. ?

CN i eee ehtesctintalnvhtsiencenasinhinianniinnsmninciinsinapiiienentijanis 3

Lynch v. Donnelly, 465 U.S. 668 (1984) ........cccecseseeseseeeeees 15

Lyng v. Northwest Indian Cemetery Protective Ass’n,~

ee a ichceniensstettniesibiniiniineubaiitensabiaiuninlins 12,15

Madison y. Riter, 355 F 3d 310 (4™ Cir. 2003) ...........-. passim

May v. Baldwin, 109 F.3d 557 (9 Cir. 1997)......c.ccssssssessees 21

Mayweathers v. Newland, 314 F.3d 1062 (9" Cir. 2002),

cert. denied sub nom. Alameida v. Mayweathers,

ee ey PIE iicnsbcnnetecdtiinssitahtinceiepiaiaitgiaatinings passim

Midrash Sephardi, Inc. v. Town of Surfside,

SORT BG SIR Ce a aiiccttiitcinsercintteerwtiericrsnsen 3

Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir.),

vacated on other grounds, 521 U.S. 507 (1997)....3, 13, 28

vi

SL AO a A tae ERG AOI AER cae ities tin ae

ee ee ee

Murphy v. New Milford, 289 F. Supp. 2d 87

i ERIE, CIE isiisecitineniieaehibaiepliataiutdnesienbennntemaneinniquesiities 3

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...........00.. 7

Peyote Way Church v. Thornburgh, 922 F.2d 1210

Ne caida casein ciel sehdalieviiieseeniiveneninien 6

Rourke v. N.Y. State Dep’t of Corr. Servs.,

603 N.Y.S.2d 647 (N.Y. Sup. Ct. 1993), aff'd,

615 N.Y.S.2d 470 (N.Y. App. Div. 1994)... cece 13

Rupert v. City of Portland, 605 A.2d 63 (Me. 1992)............ 13

Sanabria v. Brown, No. 99-4699 (D.N.J. June 5, 2003) ........ 2

Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996),

vacated on other grounds, 521 U.S. 1114 (1997) ........s04+. 3

St. John’s Lutheran Church v. State Comp. Ins. Fund,

ae GEE 6 GI, CRIED ticcecstssencivcvncnnieniiensccenenentnenses 13

State v. Evans, 796 P.2d 178 (Kan. 1990)..........c.ccccccseeeseees 13

State v. Hershberger, 462 N.W.2d 393 (Minn. 1990).......... 13

State v. Miller, 549 N.W.2d 235 (Wis. 1996) ........:ccsseeeee 13

Sutton v. Rasheed, 323 F.3d 236 (3° Cir. 2003) .....c.sessssee0es 28

Swanner v. Anchorage Equal Rights Comm'n,

Pe ey EE circictetcesnmsesenntnnemereinesninnenenen 13

Taylor v. Cockrell, No. H-00-2809 (S.D. Tex. Sept. 25, 2002)

vacated on other grounds, Taylor v. Groom,

No. 02-21316 (Sth Cir. Aug. 26, 2003) ...........sccccseseeeseeeees 3

vii

Texas Monthly v. Bullock, 489 U.S. 1 (1989)..........000000 12, 20 |

Thomas v. Review Bd. of Ind., 450 U.S. 707 (1981) ........... 28

Turner v. Safley, 482 U.S. 78 (1987)......ccccccccccsssssseeeseees 17,26 |

Ulmann v. Anderson, No. 02-405, 2004 WL 883221 (D. N.H.

SEs Toi I ccceig iene ietiiiniececinibatiniiciatetbiitanaaitta tapi 21

United States v. Grassie, 237 F.3d 1199 (10" Cir 2001).....30

United States v. Lee, 455 U.S. 252 (1982) ......cccccecccsseeseeeees 16

United States v. Lopez, 514 U.S. 549 (1995) ......ccccccsseseseeees 29

United States v. Marengo Cy. Comm’n, 731 F.2d 1546

(11" Cir.), cert. denied, 469 U.S. 976 (1984) ...cccccseccsseee 20

United States v. Maui County; 298 F. Supp. 2d 1010

ae Senet III asthncssnccdcnisiinsscnsibiniicindiidicipehantetibiatletitiatensdandinens 3

United States v. Morrison, 529 U.S. 598 (2000)..........0000000. 29

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

es i A tnctasiniinniiinsiieicttiinineseteiatipesenintitininaiasantenisen 23

Wallace v. Jaffree, 472 U.S. 383 (1985) .......cccssceseseeeees 25, 27

Walz v. Tax Comm'n, 397 U.S., 664 (1970)........cccecesesees 8, 18

Westchester Day Sch. v. Mamaroneck,

280 F. Supp. 2d 230 (S.D. N.Y. 2003)........cccccccccseereeeesseees 3

Williams v. Bitner, 285 F. Supp. 2d. 593 (M.D. Pa. 2003) ....2

Wisconsin v. Yoder, 406 U.S. 205 (1972) .........cececeseseesereeees 23

viii

|

Zorach v. Clauson, 343 U.S. 306 (1952) ......ccccccccceeeeeees 4,5,6

Zurcher v. Stanford Daily, 436 U.S. 547 (1978)......sssss00 15

Statutes

BE DIBA. 6 GID ceeccccccscsoncsscesesesosecssssensvsevessonssenssosesvsocsssccssees 24

42 U.S.C. § 199GB ....csccrcscressercseresscescosseccscccssessesssecsesseosssesees 12

42 U.S.C. § 200DCCe1 ........crcrerrreccccccsrscrcerersscrceseessesoess passim

42 U.S.C. § 2OOOCCES ......ccseresercercccccccecvorscesssesrsesssscssesenseess 28

71 PA. CONS. STAT. ANN. 2401 ef SQ. ....::ccccceeceeesreeereneeenes 13

775 ILL. COMP. STAT. ANN. §§ 35/1 -35/99.......scesceeeeneeeenees 13

ALA. CONST. amend, 622 .......sccsccscessesseeresssssssseeeeseeserssesneens 13

ARIZ. REV. STAT. ANN. §§ 41-1493 ef S€q.....::cceceeeseeeeeeeees 13

CONN. GEN. STAT. ANN. § 52-571D .....ccsccsseesseereereeensnesennens 13

Department of the Interior and Related Agencies

Appropriations Bill, 1989, H.R. Rep. No. 713,

100th Cong., 2d Sess. 72 (1988) .........scseseseeeeneerees 12, 15

Exemption Act of 1988, 26 U.S.C. § 3127......scsseeseeeeseeeees 16

FLA. STAT. ANN. §§ 761.01-761.04 ........sccccseesseesseereeeneenneens 13

IDAHO CODE §§ 73-401 @f SOQ. .......sccssceesseesseeseeeeneensensonneennes 13

N.M. STAT. ANN. §§ 28-22-1 to 28-22-5 .....ccscccseesseeeeneenees 13

ix

National Defense Authorization Act for Fiscal Years

1988 and 1989, 10 U.S.C. § 774 woe eccceeeeeeeeeeeeeees 12, 16

OHO REV. CODE ANN. § 4123.15(A)..........:cccccssceeeereeeeeeees 33

OHIO REV. CODE FF eee 36

OHIO REV. CODE ANN. § 1710.02(A).............::cccceesssreeereeeees 35

OHIO REV. CODE ANN. § 1713.02(E) .............csccccessrrreseeeseees 35

OHIO REV. CODE ANN. § 2108.53(C)...........:sccsssereesereeeeseees 35

OHIO REV. CODE ANN. § 2151.03(8)...cccseccsessscssesssessecsneeseee 35

OHIO REV. CODE ANN. § 2331.11(5)..........ccccssssscecessereeeeeees 35

OHIO REV. CODE ANN. § 2331.16(5)...........:cscccccessssesrrreeeeees 35

OHIO REV. CODE ANN. § 2903.34(B)(1) ...cccssssssesssesssesseessen 34

OHIO REV. CODE ANN. § 2903.34(C) ..cccccccsssssesssssseesseeneensen 35

OHIO REV. CODE ANN. § 3313.67] ccccccssscsssssessuessecuecsseeneene 34

Ae 8 kf , eee 34

OHIO REV. CODE ANN. § 3313.713(F)5 .......ccsseseseeseseseereeeeees 34

OHIO REV. CODE ANN. § 339.89 ....cccccessscscssssesssecsecsussncesseens 35

OHIO REV. CODE ANN. § 3509.02(6).........:ccscssesesseseseeeneeees 34

OHIO REV. CODE ANN. § 3701.501(2)cccsssssccssssssssesseeenseee 34

OHIO REV. CODE ANN. § 3701.508(2)-(3)..........cccceseceeeeeeeees 34

x

OHIO REV. CODE ANN. § 3742.30 ..........ccccccccssccssssseccsssssecees 34

OHIO REV. CODE ANN. § 4117.09 (C) .......ccccececeesececeeseeeeeee 34

OHIO REV. CODE ANN. § 4301.631(H)..........cccccccceseeceeeeeeees 33

OHIO REV. CODE ANN. § 4758.03(B).........cccccccccsccssseccesseeees 33

OHIO REV. CODE ANN. § 5709.07(3)........cccccccccscsssssccceeseseees 33

OHIO REV. CODE ANN. § 5923.02(B)...........:sccssscesseereeeeseees 33

SRI IU. CTE BRIT, © TEI Be eerccnecececncscesensncnsesiiesiocenens 36

_ OHIO REV. CODE ANN. § 917.09(I) ......cccsecssssseseseseseeseeseeeees 36

OHIO REV. CODE ANN. § 945.02 ...........cccscccsssssssscesseescseesess 36

NTs II: tia TITIES ceicinisecstenicecncsnsesBesensessncennmnnsteses 13

Privacy Protection Act of 1980,

ee ie Ee I IID, sccricninensnnscnencnenvemnedetsemaiannseiin 15

R.I. GEN. LAWS §§ 42-80. 1-1 to 42-80.1-4 ..c.cccccsccssecseeseenes 13

eens ts Fa Oe I crncccntccsinnssnnetnccadenteeniceniiostsnsemnenes 13

TEX. CIV. PRAC. & REM. CODE ANN. §§ 110.001 et seg. ....13

Other Authorities

146 CONG. REC. $7774 (daily ed. July 27, 2000) ............ 9,21

146 Conc. REC. E1234 (daily ed. July 14, 2000) .............00.. 4

xi

Federal Bureau of Prisons, Program Statement on

Religious Beliefs and Practices, PS 5360.08

(May 25, 2001), available at

http://www.bop.gov/progstat/5360_ O08.pdf .............0008 14

Forgive Us Our Sins: The Inadequacies of the Clergy-

Penitent Privilege, 73 N.Y.U. L. Rev. 225 (April 1998) .14

“Inmates to Help Slaughter Their Own Beef” (last updated

on Saturday, November 06, 2004), available at

http://www.wkyc.com/news/news_fullstory.asp?id=25937

xii

INTEREST OF THE AMICUS

The Coalition for the Free Exercise of Religion is a

coalition of over 50 religious and civil liberties organizations.

(Coalition members are listed in Appendix A.) These

organizations represent almost every major faith group in

America, spanning the full spectrum of religious diversity—

Buddhists, Christians, Hindus, Jews, Muslims, Native

Americans, and Sikhs. The Coalition includes liberals and

conservatives (religious and nonreligious), and groups with

world views as disparate as People for the American Way

and Liberty Counsel. Though the Coalition includes

members who often find themselves on opposite sides of

Establishment Clause issues, they speak with one voice in the

conviction that accommodating religious exercise by

removing government-imposed substantial burdens on

religious exercise is an essential element of a democratic

society. The Coalition’s members supported the enactment

of the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) to achieve this purpose, and now join together

to defend its constitutionality. The Coalition takes no —

position on the merits of the application of RLUIPA to the

facts of this case. This brief addresses only the question of

whether RLUIPA, on its face, is a constitutionally legitimate

exercise of Congressional authority.’

SUMMARY OF ARGUMENT

The Establishment Clause theory adopted by the

lower court is that legislative accommodations of religious

‘All parties have consented to the filing of this brief. A letter of consent

from Petitioners Jon B. Cutter et al. is on file with the Court. Letters of

consent from all other parties have been filed simultaneously with this

brief. No counsel for any party authored this brief in whole or in part.

No person or entity other than amicus and their members made any

monetary contributions to the preparation or submission of this brief.

l

exercise are forbidden if they accommodate only religious

exercise.’ Not only would this theory invalidate thousands of

long-standing, non-controversial, legislative accommodations

of religious exercise at every level of government, but this

anti-accommodation rule is also premised on an extreme

view of the Establishment Clause that has never garnered the

vote of more than a single Justice of this Court (if that), let

alone a majority.’ Accordingly, it is not surprising that

courts addressing this argument consistently reject it in cases

challenging both the constitutionality of RLUIPA’s prisoner

provisions (Section 3)* and its land-use provisions (Section

?See Cutter v. Wilkinson, 349 F.3d 257, 264 (6™ Cir. 2003).

*It appears that the closest any Justice has ever come to accepting such a

theory is Justice Stevens’ concurreace in City of Boerne v. Flores, 521

U.S. 507, 536-37 (1997) (Stevens, J., concurring), which was not joined

by any other Justice. See also In re Young, 141 F.3d 854, 863 (8” Cir.

1998) (rejecting challenge to RFRA for accommodating religious without

also accommodating atheists, because challenge “direct[ly] contradict([s]

the declaration of a majority of the Supreme Court in” Amos).

“See, e.g., Benning v. Georgia, Nos. 04-10979 & 02-00139, _ F.3d __,

2004 WL 2749172 (11™ Cir. Dec. 2, 2004) (rejecting Spending Clause,

Establishment Clause, and Tenth Amendment challenges to RLUIPA

Section 3); Madison v. Riter, 355 F.3d 310 (4" Cir. 2003) (rejecting

Establishment Clause challenge to RLUIPA Section 3); Charles v.

Verhagen, 348 F.3d 601 (7" Cir. 2003) (rejecting Spending Clause,

Establishment Clause, and Tenth Amendment challenges to RLUIPA

Section 3); Mayweathers v. Newland, 314 F.3d 1062 (9" Cir. 2002)

(rejecting Spending Clause, Establishment Clause, Tenth Amendment,

Eleventh Amendment, and Separation-of-Powers challenges to RLUIPA

Section 3), cert. denied sub nom. Alameida v. Mayweathers, 124 S.Ct. 66

(2003); Williams v. Bitner, 285 F. Supp. 2d. 593 (M.D. Pa. 2003)

(rejecting constitutional challenges to RLUIPA Section 3); Glick v.

Norris, No. 5:03CV00160 (E.D. Ark. Aug. 11, 2004) (same); Jones v.

Toney, No. 5:02CV00415 (E.D. Ark. Mar. 29, 2004) (same); Sanabria v.

Brown, No. 99-4699 (D.N.J. June 5, 2003) (same); Gordon v. Pepe, No.

00-10453, 2003 WL 1571712 (D. Mass. Mar. 6, 2003) (same); Johnson v.

Martin, 223 F. Supp. 2d 820 (W.D. Mich. 2002) (same), overruled by

Cutter v. Wilkinson, 349 F.3d 257 (6" Cir. 2003); Gerhardt v. Lazaroff,

221 F. Supp. 2d 827 (S.D. Ohio 2002) (same), overruled by Cutter v.

Wilkinson, 349 F.3d 257 (6™ Cir. 2003); Taylor v. Cockrell, No. H-00-

2809 (S.D. Tex. Sept. 25, 2002) (rejecting constitutional challenge to

2

Se ee eee ee

A ean tt CL OO

ee

2). Similarly, this anti-accommodation rule was squarely

rejected by every court to address the issue when it was

raised against RFRA—RLUIPA’s broader predecessor—

both before and after RFRA was struck down as applied to

the states on other grounds in Boerne.°

Courts so consistently uphold RLUIPA because it

satisfies all three requirements of the Lemon test: (1)

RLUIPA has a secular purpose, to minimize government

RLUIPA Section 3), vacated on other grounds, Taylor v. Groom, No. 02-

21316 (Sth Cir. Aug. 26, 2003); Love v. Evans, No. 2:00-CV-91 (E.D.

Ark. Aug. 8, 2001) (same); Mayweathers v. Terhune, 2001 WL 804140,

(E.D. Cal. 2001) (same).

*See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214

(11" Cir. 2004) (rejecting Establishment Clause challenge to RLUIPA

Section 2); Castle Hills First Baptist Church v. City of Castle Hills, No.

SA-01-CA-1149, 2004 WL 546792 (W.D. Tex. Mar. 17, 2004) (rejecting

constitutional challenges to RLUIPA Section 2); United States v. Maui

County, 298 F. Supp. 2d 1010 (D. Haw. 2003) (same); Murphy v. New

Milford, 289 F. Supp. 2d 87 (D. Conn. 2003) (same); Westchester Day

Sch. v. Mamaroneck, 280 F. Supp. 2d 230 (S.D.N.Y. 2003) (same); Guru

Nanak Sikh Soc'’y v. County of Sutter, 326 F. Supp. 2d 1140 (E.D. Cal.

2003) (same); Life Teen, Inc. v. Yavapai County, No. Civ. 01-1490-PCT

(D. Ariz. Mar. 26, 2003) (same); Christ Universal Mission Church v.

Chicago, No. 01-C-1429, 2002 U.S. Dist. LEXIS 22917 (N.D. IIl. Sept.

11, 2002) (same) vacated on other grounds 2004 WL 595392 (7" Cir.

Mar. 26, 2004); Freedom Baptist Church v. Middletown, 204 F. Supp. 2d

857 (E.D. Pa. 2002) (same). See also Cottonwood Christian Ctr. v.

Cypress, 218 F. Supp. 2d 1203, 1221 n.7 (C.D. Cal. 2002) (RLUIPA

“appear([s] to . . . be within Congress’s constitutional authority”).

*See, e.g., In re Young, 141 F.3d at 863 (“RFRA fulfills each of the

elements presented in the Lemon test, and we conclude that Congress did

not violate the Establishment Clause in enacting RFRA.”); Mockaitis v.

Harcleroad, 104 F.3d 1522, 1530 (9" Cir.) (same), vacated on other

grounds, 521 U.S. 507 (1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022

(7" Cir. 1996) (same) vacated on other grounds, 521 U.S. 1114 (1997);

E.E.O.C. v. Catholic Univ. of America, 83 F.3d 455, 470 (D.C. Cir. 1996)

(same); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5" Cir. 1996)

(same), rev'd on other grounds, 521 U.S. 507 (1997); Jama v. United

States, Nos. 97-3093 & 98-1282, _ F. Supp. 2d __, 2004 WL 2538275,

*25 (D.N.J. Nov. 10, 2004) (same).

interference with religious exercise; (2) it does not have the

primary effect of advancing religion, because alleviating

substantial government burdens on religious exercise—even

exclusively, as religious accommodation laws do—does not

involve the government itself advancing religion; (3) and the

statute entails no greater entanglement problem than the

ordinary application of Free Exercise doctrine. See Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971).

In short, RLUIPA, like so many other statutes

accommodating religious exercise, fits comfortably within

the “ample room under the Establishment Clause for

benevolent neutrality which will permit religious exercise to

exist without sponsorship and without interference.”

Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 334

(1987) (internal quotation omitted). Indeed, such

accommodations “follow[] the best of our traditions” by

relieving substantial regulatory burdens on religious exercise.

Zorach v. Clauson, 343 U.S. 306, 314 (1952).

Finally, if the Court chooses to reach the Spending

and Commerce Clause challenges not addressed by the lower

court, it should reject those challenges as well. oo

ARGUMENT

I. RLUIPA Section 3 Is Consistent with the

Establishment Clause.

A. RLUIPA Has a Secular Purpose.

RLUIPA was passed for the secular government

purpose of “protect[ing] the free exercise of religion from

unnecessary government interference.” 146 CONG. REC.

E1234, E1235 (daily ed. July 14, 2000) (statement of Rep.

Canady); Madison, 355 F.3d at 317. As this Court made

clear in Amos, it is a “proper purpose [to] lift[] a regulation

that burdens the exercise of religion.” Amos, 483 U.S. at 338

(emphasis added); id. at 339 (noting the “permissible purpose

of limiting governmental interference with the exercise of

religion”). Indeed, it has been a consistent refrain of this

Court’s Establishment Clause jurisprudence that it is a

permissible government purpose to limit government

interference with the exercise of religion.’

These cases simply emphasize this Court’s

admonition that the requirement of a secular purpose “does

not mean that the law’s purpose must be unrelated to

religion—that would amount to a requirement that the

government show a cullous indifference to religious groups,

and the Establishment Clause has never been so interpreted.”

Amos, 483 U.S. at 335 (internal quotation omitted). Thus,

“the government may (and sometimes must) accommodate

religious practices and . . . it may do so without violating the

Establishment Clause.” /d., 483 U.S. at 334. See also

Zorach, 343 U.S. at 314 (accommodating religious exercise

“respects the religious nature of our people and

accommodates the public service to their spiritual needs”).

Indeed, legislation like RLUIPA that has the

permissible purpose of lifting burdens on religious exercise is

all the more common—and necessary—since the Supreme

Court’s decision in Employment Division v. Smith made clear

that people of faith should turn in the first instance to the

"See, e.g., Larkin v. Grendel's Den, 459 U.S. 116, 123-24 (1982) (finding

secular purpose in regulating liquor sales in manner to protect disruption

of church activities); Gillette v. United States, 401 U.S. 437 (1971)

(exemption from military draft that lifts government-imposed burden on

religious exercise of conscientious objectors advances a permissible

secular purpose); Zorach, 343 U.S. at 314 (excepting religious students

from mandatory public school attendance during certain hours of the day

to obtain religious instruction does not violate Establishment Clause).

legislative and executive branches, rather than the courts, for

the protection of religious liberty:

Values that are protected against government

interference through enshrinement in the Bill of

Rights are not thereby banished from the political |

process. Just as a society that believes in the negative |

protection accorded to the press by the First —

Amendment is likely to enact laws that affirmatively

foster the dissemination of the printed word, so also a

society that believes in the negative protection

accorded to religious belief can be expected to be

solicitous of that value in its legislation as well.

494 U.S. 872, 890 (1990) (emphasis added).

Thus, for example, while Smith rejected the claim that

the Free Exercise Clause mandated an exemption to drug

laws, the Court noted with approval the many legislative

accommodations of religious peyote use. /d. (noting that “a

number of States have made an exception to their drug laws

for sacramental peyote use”). Such accommodations are

constitutional, even though others wishing to use peyote for

secular reasons are not offered the exemption.®

Accordingly, RLUIPA’s purpose of alleviating

government burdens on prisoners’ religious exercise is a

permissible secular purpose. See Amos, 483 U.S. at 335;

Zorach, 343 U.S. at 314.? See also Benning, 2004 WL

"See, e.g., Lee v. Weisman, 505 U.S. 577, 628-29 (1992) (Souter, J.,

concurring) (“[I]n freeing the Native American Church from federal laws

forbidding peyote use, . . . the government conveys no endorsement of

peyote rituals, the Church, or religion as such; it simply respects the

centrality of peyote to the lives of certain Americans.”); Peyote Way

Church v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991) (exemptions from

a laws for religious use do not violate Establishment Clause).

oreover, this Court’s precedent makes clear that the Free Exercise

Clause requires the government to provide some accommodation of

6

2749172, at *8-9 (holding that RLUIPA Section 3 has

secular purpose of alleviating burdens on religious exercise);

Madison, 355 F.3d at 310 (same); Charles, 348 F.3d at 610

(same); Mayweathers, 314 F.3d at 1068 (same).

B. RLUIPA Does Not Have the Primary Effect-of

Advancing Religion.

1. RLUIPA does not cause the government itself to

advance religious exercise, but rather to avoid

interference with private actors as they engage in

religious exercise.

RLUIPA satisfies the second Lemon factor, because

alleviating burdens on religious exercise does not have the

primary effect of advancing religion. RLUIPA merely

reduces intrusion and oversight by the government into how

individuals practice their religion. While this may better

enable those individuals to advance their religious purposes,

this Court has held this to be a permissible effect:

A law is not unconstitutional simply because it allows

churches to advance religion, which is their very

purpose. 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 influence. As the Court observed in Walz, “for

the men who wrote the Religion Clauses of the First

prisoners’ religious exercise. See O’Lone v. Estate of Shabazz, 482 U.S.

342, 348 (1987) (“Inmates clearly retain protections afforded by the First

Amendment, . . . including its directive that no law shall prohibit the free

exercise of religion.”); Cruz v. Beto, 305 U.S. 319, n. 5 (1972)

(“reasonable opportunities must be afforded to all prisoners to exercise”

their religion). Alhough RLUIPA goes beyond the minimum level of

accommodation this Court has held is necessary in prisons, the Act’s

purpose of lifting government-imposed burdens on the religious exercise

of prisoners is no less permissible than that of the Free Exercise Clause,

which also requires lifting some (albeit fewer) burdens of this sort.

7

Amendment the ‘establishment’ of a religion

connoted sponsorship, financial support, and active

involvement of the sovereign in religious activity.”

Amos, 483 U.S. at 337 (quoting Walz v. Tax Comm'n, 397

U.S. 664, 668 (1970)) (emphasis in original).

Here, RLUIPA, like the Title VII exemption

approved in Amos, does not involve the government itself

advancing religion.'® Instead, RLUIPA simply permits

prisoners some latitude to practice and define their own

religious exercise by limiting government interference. Put

another way, RLUIPA’s lifting of any non-compelling, state-

imposed regulation that substantially burdens religious

exercise is an example of “benevolent neutrality” that

“permit[s] religious exercise to exist without sponsorship and

without [government] interference.” Amos, 483 U.S. at 334.

See Madison, 355 F.3d at 318 (“Congress has simply lifted

'*Amos cannot be distinguished on the grounds that the Title VII

accommodation at issue there was required by the Religion Clauses. See

Cutter, 349 F.3d at 263 (suggesting that the accommodation in Amos was

necessary to avoid violating First Amendment). That issue was not

addressed in Amos. Indeed, the Court expressly declined to rest its

decision on the ground that Title VII’s applicability to religious groups,

prior to the enactment in 1972 of the legislative accommodation for

religious organizations challenged in Amos, violated the Free Exercise

Clause so that the 1972 amendment was constitutionally mandated.

Amos, 483 U.S. at 336 (“We may assume for the sake of argument that

the pre-1972 exemption was adequate in the sense that the Free Exercise

Clause required no more”). Moreover, the Court took pains to point out

that “[iJt is well established . . . that [t]he limits of permissible state

accommodation to religion are by no means co-extensive with the

noninterference mandated by the Free Exercise Clause.” Jd., 483 U.S. at

334 (internal quotation omitted). Equally infirm is the argument that the

Court based its decision upholding the exemption in Amos on the view

that the exemption was required by the Establishment Clause. As the

Eleventh Circuit recently pointed out, “no such language or distinction”

that would support such a position appears in the majority opinion in

Amos. Benning, 2004 WL 2749172, at *11.

government burdens on religious exercise and thereby

facilitated free exercise of religion for those who wish to

practice their faiths”). That benevolent neutrality is

especially important in prison, where every facet of a

person’s life is controlled by the government, and religious

exercise is all but impossible without the government’s

affirmative acquiescence and accommodation.’

2. None of the rationales proffered by the lower

court distinguishes RLUIPA from the myriad

accommodations of religious exercise by the

political branches that “follow[ ] the best of our

traditions.”

In discussing the effects prong of Lemon, the lower

court failed meaningfully to distinguish the controlling

analysis of Amos, or its application by the numerous other

courts upholding RLUIPA and RFRA against Establishment

Clause challenge. The lower court’s anomalous opinion

"4 similar desire to lift government-imposed burdens on religious

exercise in the heavily regulated area of land-use motivated Congress to

enact RLUIPA’s land use provisions. Congress “compiled massive

evidence,” 146 CONG. REC. $7774 (daily ed. July 27, 2000)—based on

nine hearings over three years—that the autonomy and vitality of houses

of worship were threatened by the pervasive and discretionary regulation

embodied in local land-use laws. See 146 CONG. REC. S7775 (“The

hearing record demonstrates a widespread practice of individualized

decisions to grant or refuse permission to use property for religious

purposes. These individualized assessments readily lend themselves to

discrimination, and they also make it difficult to prove discrimination in

any individual case”). Thus, the passage of RLUIPA—both its land use

and prisoner provisions—is testament to the fact that religious

organizations rely heavily on Amos’ upholding of legislative

accommodations of religious exercise. Any narrowing of Amos that

would require accommodations to come packaged with accommodations

for secular interests would severely impact religious liberty by making it

far more difficult to enact laws that carve out space within the regulatory

state for the free exercise of religion.

9

invokes four rationales in an effort to escape Amos, all

foreclosed by longstanding precedent of this Court.

a. The Establishment Clause does not

prohibit laws passed _ solely to

accommodate religious exercise.

The lower court did not even attempt to show that

RLUIPA involves the “government itself’ advancing

religion. Amos, 483 U.S. at 337. Nonetheless, the lower

court still faulted RLUIPA because it accommodates

religious exercise without a/so accommodating other rights.

See Cutter, 349 F.3d at 266. But this Court has expressly

rejected this rule, holding instead that where “government

acts with the proper purpose of lifting a regulation that

burdens the exercise of religion, we see no reason to require

that the exemption comes packaged with benefits to secular

entities.” Amos, 483 U.S. at 338. Legion other courts have

zejected arguments like this over and over again in upholding

Sections 2 and 3 of RLUIPA.’” Nor could it be otherwise, as

the theory below is fraught with problems on many levels.

*See, e.g., Benning, 2004 WL 2749172, at *9 (“Singling out free exercise

rights for protection is not an impermissible endorsement of religion. . . .

[T]he Supreme Court has net held that legislative protections for

fundamental rights march in lockstep.”) (internal quotation omitted);

Madison, 355 F.3d at 318-19 (holding that under Amos “(t]he

Establishment Clause’s requirement of neutrality does not mandate that

when Congress relieves the burdens of regulation on one fundamental

right, that it must similarly reduce government burdens on all other

rights.”); Mayweathers, 314 F.3d at 1069 (holding that under Amos,

RLUIPA “does not violate the Establishment Clause just because it seeks

to 4ift burdens on religious worship in institutions without affording

corresponding protection to secular activities or to non-religious

prisoners.”); Charles, 348 F.3d at 610 (same); Johnson, 223 F. Supp. 2d

at 826 (rejecting argument “that merely because Congress has acted to

provide religious activity with special protection and has not done the

same for secular activity, that Congress has advanced religion”).

10

First, it presents insuperable practical problems. On

the lower court’s view, the Establishment Clause would run

amok, taking a wrecking ball to countless acts of the political

branches—iegislative and executive, federal, state, and

local—-whose sole purpose and effect is to accommodate

religious exercise. See, e.g., Benning, 2004 WL 2749172, at

*9 (holding that any Establishment Clause interpretation that

prohibited laws designed solely to protect religious exercise

“would cut a broad swath through a forest of government

programs and protections of religious exercise”); Madison,

355 F.3d at 320 (declining to follow Cutter because its

Establishment Clause interpretation “would throw into

question a wide variety cf religious accommodation laws”).

For starters, the lower court’s anti-accommodation

rule would invalidate the special protections afforded to

religious exercise by Ohio’s Constitution. Although the

federal Free Exercise Clause extends only rational basis

scrutiny to neutral and generally applicable laws that burden

religious exercise, see Smith, supra, Ohio goes beyond the

federal constitutional floor and provides broader protection

under its state constitution by applying strict scrutiny to all

laws (even neutral and generally applicable ones) that burden

religious exercise. See Humphrey v. Lane, 728 N.E.2d 1039

(Ohio 2000).'? Thus, Ohio’s Constitution provides special

protection to claims for religious exemptions, without

extending parallel protections to corresponding non-religious

claims. But under the lower court’s rule, this protection for

religious exercise would violate the Establishment Clause.

The decision below would similarly run roughshod

over a whole host of Ohio statutes that accommodate

religious exercise by affirmatively lifting burdens on

'3See also Arizona v. Evans, 514 U.S. 1, 8 (1995) (“state courts are

absolutely free to interpret state constitutional provisions to accord

greater protection to individual rights than do similar provisions of the

United States Constitution”).

11

religious exercise, without also lifting burdens on non-

religious activities. Appendix B to this brief lists a sample of

Ohio laws that accommodate religious exercise. Because

none of these laws also seeks to accommodate other secular

constitutional rights, the lower court’s test would arguably

strike down most, if not all, of these Ohio laws.'*

Moreover, if allowed to stand, the rationale of the

court below would potentially invalidate numerous other

federal and state acts whose sole purpose and effect is to

accommodate religious exercise. This includes, among many

others, the federal statutory accommodations of religious

peyote use,'” religious headwear in the military,'° and Native

American religious exercise on federal land;'’ other state

“By listing the various religious accommodations in the Appendix, the

members of the Coalition do not intend to express that they consider any

or all of them good policy or even that each of them is constitutional

under the Establishment Clause. The point, instead, is that the

constitutionality of all of these accommodations would be called

seriously into question if the lower court’s opinion stands.

'*See 42 U.S.C. § 1996a (requiring states to allow the Native American

Church to use peyote in religious ceremonies). See also Benning, 2004

WL 2749172, at *9 (noting that 28 state statutes provide a religious

exemption for peyote use).

“See National Defense Authorization Act for Fiscal Years 1988 and

1989, 10 U.S.C. § 774; see also Texas Monthly v. Bullock, 489 U.S. 1, 18

n.8 (1989) (plurality opinion) (“[I]f the Air Force provided a sufficiently

broad exemption from its dress requirements for servicemen whose

religious faiths commanded them to wear certain headgear or other attire,

... that exemption would not be invalid under the Establishment Clause

even though this Court has not found it to be required by the Free

Exercise Clause.”) (citation omitted).

‘See Department of the Interior and Related Agencies Appropriations

Bill, 1989, H.R. Rep. No. 713, 100th Cong., 2d Sess. 72 (1988) (de-

funding project that would have destroyed government land used for

Native American religious exercise in response to statement in Lyng v.

Northwest Indian Cemetery Protective Ass'n, 435 U.S. 439, 454 (1988),

that “[t]he Government’s rights to the use of its own land . . . need not

and should not discourage it from accommodating religio. practices like

those engaged in by the Indian respondents”).

12

Le eee

~ . ~ ~

nei ee

constitutional provisions that, like Ohio’s discussed above,

provide stronger protections for religious exercise (and only

religious exercise) than the federal Free Exercise Clause;'*

state statutes that provide broader protection to religious

exercise (and only religious exercise) than required by the

federal or state constitution;'? prison and armed forces

chaplaincy programs that facilitate religious exercise (and

only religious exercise);*’ the state and federal clergy-

'SSince this Court’s Smith decision, the courts of at least ten states besides

Ohio have held that their state constitutions provide broader protection

for religious exercise (and only religious exercise) than the federal Smith

tule. See, e.g., In re Browning, 476 S.E.2d 465 (N.C. 1996); State v.

Miller, 549 N.W.2d 235 (Wis. 1996); Attorney Gen. v. Desilets, 636

N.E.2d 233 (Mass. 1994); Swanner v. Anchorage Equal Rights Comm'n,

874 P.2d 274 (Alaska 1994); Rourke v. N.Y. State Dep't of Corr. Servs.,

603 N.Y.S.2d 647 (N.Y. Sup. Ct. 1993), aff'd, 615 N.Y.S.2d 470 (N.Y.

App. Div. 1994); Rupert v. City of Portland, 605 A.2d 63 (Me. 1992); St.

John's Lutheran Church v. State Comp. Ins. Fund, 830 P.2d 1271 (Mont.

1992); First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174

(Wash. 1992); State v. Evans, 796 P.2d 178 (Kan.1990); State v.

Hershberger, 462 N.W.2d 393 (Minn. 1990).

"Since this Court’s Smith decision, the political branches of at least

thirteen states have, either by statute or constitutional amendment,

provided stronger protection for religious exercise (and only religious

exercise). Those thirteen states are Alabama, see ALA. CONST. amend.

622; Arizona, see ARIZ. REV. STAT. ANN. §§ 41-1493 et seg. (West

2003); Connecticut, see CONN. GEN. STAT. ANN. § 52-571b (West 2003);

Florida, see FLA .STAT. ANN. §§ 761.01-761.04 (West 2003); Idaho, see

IDAHO CODE §§ 73-401 et seg. (Supp. 2002); Illinois, see 775 ILL. Comp.

STAT. ANN. §§ 35/1 -35/99 (West 2002); Missouri, see V.A.M.S. §§

1.302 & 1.307 (West 2004); New Mexico, see N.M. STAT. ANN. §§ 28-

22-1 to 28-22-5 (Michie 2002); Oklahoma, see OKLA. STAT. ANN. tit. 51,

§251 (West 2003); Pennsylvania, 71 PA. CONS. STAT. ANN. 2401 et seq.;

Rhode Island, see R.I. GEN. LAWS §§ 42-80.1-1 to 42-80.1-4 (2001);

South Carolina, see S.C. STAT. ANN. § 1-32-10 (Law. Co-op. 1999); and

Texas, see TEX. Civ, PRAC. & REM. CODE ANN. §§ 110.001 et seg. (West

2003).

See, e.g., Mockaitis, 104 F.3d at 1530 (observing that RFRA does not

impermissibly promote religion anymore than “(t]he creation of

chaplaincies . . . in the armed forces .”); Katcoff v. Marsh, 755 F.2d 223,

13

penitent privilege;”' and even particular prison regulations

adopted by the Federal Bureau of Prisons that accommodate

religious exercise (and only religious exercise).””

Another strange consequence of the lower court’s

reasoning is that if legislative and executive officials would

merely tack on to each protection of religious exercise the

protection of another right, then the entire (alleged)

constitutional problem would disappear. But the

Establishment Clause does not exist to require government

actors to undertake such formalistic (and completely

unprecedented) exercises. See Madison, 355 F.3d at 320

(noting “[t]he byzantine complexities that such compliance

would entail”). Indeed, this Court has squarely rejected that

argument when it explained that it:

has never indicated that statutes that give special

consideration to religious groups are per se invalid.

That would run contrary to the teaching of our cases

that there is ample room for accommoaation of

religion under the Establishment Clause. Where, as

here, government acts with the purpose of lifting a

232 (2d Cir. 1985) (rejecting Establishment Clause challenge to military

chaplaincy program). a

*1All fifty states and the federal government specially accommodate

religious exercise by recognizing some form of the clergy-penitent

privilege. See Forgive Us Our Sins: The Inadequacies of the Clergy-

Penitent Privilege, 73 N.Y.U. L. REV. 225, 231 & n.39 (April 1998).

“See, e.g., Federal Bureau of Prisons, Program Statement on Religious

Beliefs and Practices, PS 5360.08 (May 25, 2001) (available

at http://www.bop.gov/progstat/5360_008.pdf), at 15 (providing religious

prisoners accommodation for religious use of wine, an otherwise

contraband substance); id. at 10-11 (providing religious prisoners relief

from generally applicable work duties in order to observe religious

holidays); id. at 11-12 (providing religious prisoners accommodation to

allow visits by outside religious advisors that do not count against the

limit otherwise posed on social visits from outsiders).

14

regulation that burdens the exercise of religion, we

see no reason to require that the exemption comes

packaged with benefits to secular entities.

Amos, 483 U.S. at 338 (emphasis added).

Indeed, if the purpose of the Establishment Clause

really were to preclude laws that single out religious exercise

for protection from government interference, then the

Establishment Clause would squarely contradict the Free

Exercise Clause, which does precisely that. See Lynch v.

Donnelly, 465 U.S. 668, 673 (1984) (“Nor does the

Constitution require complete separation of church and state;

it affirmatively mandates accommodation, not merely

tolerance, of all religions, and forbids hostility toward any”).

Second, the lower court’s theory creates a conceptual

problem. The Establishment Clause certainly does require

some form of “neutrality,” but that neutrality is “between

religion and religion, and between religion and nonreligion,”

Epperson v. Arkansas, 393 U.S. 97, 104 (1968)—not

between religious exercise and all other rights or values, as

the lower court would have it. Certainly government cannot

affirmatively advance or benefit the religious at the expense

of the nonreligious: the state cannot imprison those who

refuse to believe in a Creator, or withhold welfare checks

from the atheist. But the government can—and often does—

protect a single right or value in a particular piece of

legislation or regulation, and free religious exercise is no

exception.” Such government actions do not “prefer”

3See, e.g., Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa et seq.

(reacting to Zurcher v. Stanford Daily, 436 U.S. 547 (1978), and

providing journalists with greater protection against searches and

seizures); Department of the Interior and Related Agencies

Appropriations Bill, 1989, H.R. Rep. No. 713, 100th Cong., 2d Sess. 72

(1988) (reacting to statement in Lyng v. Northwest Indian Cemetery

Protective Ass'n, 485 U.S. 439, 454 (1988), that “[t]he Government’s

15

religion over irreligion; instead, they simply protect religious

exercise, just as they would any other right or value.” As

Judge Wilkinson, writing for the Fourth Circuit, recently

held, “[i]t was reasonable for Congress to seek to reduce the

burdens on religious exercise for prisoners without

simultaneously enhancing, say, an inmate’s First Amendment

rights to access pornography.” Madison, 355 F.3d at 319.

Moreover, this Court has never held or even suggested “that

legislative protections for fundamental rights march in

lockstep.” Jd. at 318. Not only would “a requirement of

symmetry of protection for fundamental liberties” ignore this

Court’s precedent, “but it would also place prison

administrators and other public officials in the untenable

position of calibrating burdens and remedies with the specter

of judicial second-guessing at every turn.” /d. at 319.

Lacking any authority of this Court or any other for

its position, the lower court was forced to rely on a

hypothetical discussed in the overruled decision in Madison

v. Riter, 240 F: Supp. 2d 566, 576 (W.D.Va. 2003), overruled

355 F.3d 310 (4" Cir. 2003). The court posited two white

supremacist prisoners—one secular and the other an adherent

to the Church of Jesus Christ Christian, Aryan Nation—who

rights to the use of its own land . . . need not and should not discourage it

from accommodating religious practices like those engaged in by the

Indian respondents” (emphasis added), and defunding the project at issue

in Lyng that would have destroyed the government land used for religious

exercise); Exemption Act of 1988, 26 U.S.C. § 3127 (reacting to United

States v. Lee, 455 U.S. 252 (1982), which declined to recognize Amish

free exercise of religion claim, providing a tax exemption for employers

and their employees who are members of “a recognized religious sect”

whose “established tenets” oppose participation in Social Security);

National Defense Authorization Act, 10 U.S.C. § 774.

“Following the lower court’s logic to its conclusion leads to other

absurdities. For example, if protecting religious exercise rights alone

reflects impermissible favor for religion, then protecting any right alone

other than religious exercise would reflect impermissible disfavor for

religion. See Benning, 2004 WL 2749172, at *9.

16

want to challenge a prison’s decision not to let them possess

white supremacist literature. According to the hypothetical,

assuming the showing of a substantial burden on religious

exercise, the religious prisoner would be able to challenge a

failure to accommodaie his beliefs under RLUIPA’s strict

scrutiny standard, while the secular prisoner’s free speech

and association claims against the policy would be governed

by the more deferential standard of Turner v. Safley, 482 U.S.

78 (1987). Thus, the lower court asserted, RLUIPA’s

accommodation of religious exercise “advance[s] religion

generally by giving religious prisoners rights superior to

those of nonreligious prisoners.” Cutter, 349 F.3d at 266.

This hypothetical does not raise an Establishment

Clause concern any more than does any other religious

accommodation that ordinarily permits religiously motivated

persons to engage in conduct forbidden to persons motivated

by secular reasons. For example, secular employers, unlike

religious employers, do not have an exemption under Title

VII to implement hiring standards that favor co-religionists

and disfavor those of other faiths. Nonetheless, this Court

upheld such an accommodation in Amos.

Moreover, applying the reasoning of this hypothetical

to factual circumstances actually addressed by this Court

reveals starkly that this Court has already rejected that

reasoning. For example, in Amos, this Court approved a

provision of Title VII that exempted _ religious

organizations—and only religious organizations—from the

ctatute’s general prohibition of religious discrimination in

employment. See also Madison, 355 F.3d at 319 (Amos

“does not at all indicate that Congress must examine how or

if any other fundamental rights are similarly burdened”).

And why has this Court (and faithful lower courts) so

consistently rejected Establishment Clause challenges to

these laws? In short, government must be free to specially

17

deregulate religious exercise, because it is a category of

private activity in which government interference is uniquely

misplaced. To challenge that is to challenge the values

embodied in the Religion Clauses themselves. The same

principle applies to RLUIPA—it lifts burdens only on

religious exercise in order to minimize government

interference with a human phenomenon that the Constitution

itself recognizes to be uniquely sensitive to government

interference.*> Thus, in accordance with the overwhelming

weight of authority—and notwithstanding the superficial

appeal of a single hypothetical—RLUIPA does not offend

the Establishment Clause.”°

Third, the lower court’s theory ignores the history of

the Religion Clauses. Laws that exist solely to accommodate

religious exercise are so numerous because they represent a

time-honored American tradition.” And, as discussed

“Of course, the First Amendment and laws like RLUIPA seek only to

minimize government involvement in private religious conduct, not to

eliminate it altogether. Even under these laws, whenever the specific

religious practice of white supremacists (or any other prisoner) would

create a demonstrable threat to the safety of other prisoners or to prison

security, prison administrators could still forbid the practice.

**In any event, even if it were conceivable that granting a particular

accommodation requested by a prisoner would place the government at

risk of violating some other constitutional right—and no RLUIPA or

RFRA cése to date has presented such a situation—such hypotheticals are

not grounds to sustain a facial challenge to the Act.

See, e.g., Kiryas Joel v. Grumet, 512 U.S. 687, 705 (1994) (“Our cases

leave no doubt that in commanding neutrality the Religion Clauses do not

require the government to be oblivious to impositions that legitimate

exercises of state power may place on religious belief and practice.”);

Walz, 397 U.S. at 676 (“Few concepts are more deeply embedded in the

fabric of our national life ... than for the government to exercise at the

very least this kind of benevolent neutrality toward churches and religious

exercise generally so long as none was favored over others and none

suffered interference.”) (emphasis added); Benning, 2004 WL 2749172,

at *9 (declining to follow Cutter because “[a] sweeping invalidation of all

accommodations of religion is wholly inconsistent with the history,

traditions, and laws of our nation”).

18

previously, accommodations by the political branches are all

the more imperative since Smith narrowed the judiciary’s role

in this area. In other words, if the lower court’s theory were

accepted, then the Smith Court’s invitation to enact religious

accommodations, see Smith, 494 U.S. at 890, would appear

to be an inducement to violate the Establishment Clause.”

For all these reasons, then, this Court should reject

the lower court’s invitation to depart from prior precedent

and hold unconstitutional laws that focus solely on removing

government-imposed burdens on religious exercise.

b. The mandates of the Free Exercise Clause

are not a ceiling on_ permissible

accommodation of religious exercise.

The lower court also suggested that RLUIPA

impermissibly advances religion because its accommodation

of religious exercise exceeds what this Court has required

under the Free Exercise Clause in the prison setting. See

Cutter, 349 F.3d at 266. But this argument proves too much.

On this theory, amy accommodation of prisoner religious

exercise that is not mandated by the Free Exercise Clause

would violate the Establishment Clause.

Once again, this argument ignores the nation’s long

history of specially accommodating religious exercise; would

invalidate wholesale numerous federal and state laws that

accommodate religion beyond what the Free Exercise Clause

requires; and ignores Smith’s specific invitation to the

political branches to provide that additional measure of

8Notably, the Smith Court, in encouraging the political branches to take

responsibility for accommodating religious exercise, did not even suggest

that those accommodations would be permissible only if packaged with

other “secular” rights.

19

accommodation.”” But most importantly, Amos forecloses

this argument. As the Court put it there, “i]t is well

established . . . that the limits of permissible accommodation

of religion are by no means co-extensive with the

noninterference mandated by the Free Exercise Clause.”

Amos, 483 U.S. at 334.

c. RLUIPA does not have any impermissible

effects on the interests of others.

As an alternative argument under Lemon’s effects

prong, the lower court’s opinion asserts that RLUIPA has

impermissible effects on “non-religious persons.” Cutter,

349 F.3d at 266. The only authority cited by the lower court

in support of its position is the plurality opinion in Texas

Monthly v. Bullock, 489 U.S. 1 (1989). But in finding that

the Texas statute’s unqualified exemption of certain religious

publications from a state sales tax was unconstitutional, that

plurality opinion expressly distinguished the case before it

from one involving “remov{al of] a significant state-imposed

deterrent to the free exercise of religion.” Jd. at 15 (plurality

opinion). Here, of course, RLUIPA alleviates just such a

deterrent to religious exercise, by generally relieving

substantial burdens on prisoners’ religious exercise. See also

id. at 18 n.8 (“we in no way suggest that ail benefits

conferred exclusively upon religious groups or upon

individuals on account of their religious beliefs are forbidden

See, e.g., United States v. Marengo Cy. Comm'n, 731 F.2d 1546, 1562

(11th Cir.), cert. denied, 469 U.S. 976 (1984) (“[C]ongressional

disapproval of a Supreme Court decision does not impair the power of

Congress to legislate a different result, as long as Congress had that

power in the first place.”); Mayweathers, 314 F.3d at 1070 (“RLUIPA

does not erroneously review or revise a specific ruling of the Supreme

Court. . . . Rather, RLUIPA provides additional protection for religious

worship, respecting that Smith set only a constitutional floor—not a

ceiling—for the protection of personal liberty”).

20

by the Establishment Clause unless they are mandated by the

Free Exercise Clause.”) (emphasis in original).

Moreover, unlike the absolute exemption for religious

publications in Texas Monthly, RLUIPA does not give

religious prisoners an unfettered right to religious exercise.

To the contrary, in both its text and implementation by the

courts, RLUIPA takes account of the countervailing interests

that non-religious persons might have in response to a

particular religious practice. Thus, for example, if a

prisoner’s desired religious practice were to create a safety or

security risk for other prisoners or prison guards, the Act

does not require those third parties to bear that harm. The

Act’s legislative history specifically notes that the right to

engage in a particular religious practice under RLUIPA may

be overcome where a prison demonstrates that the practice

would adversely affect the ability to “maintain good order,

security and discipline.’ Consistent with this design, a

substantial body of case law under RLUIPA and RFRA

confirms that safety and security risks are exactly the types of

“compelling interest[s]” that justify prison administrators’

denial of accommodation requests.”'

In addition, unlike the statute held invalid in Estate of

Thornton v. Caldor, Inc., 472 U.S. 703, 708 (1985) (striking

down a Connecticut statute imposing an absolute condition

that private employers retain private employees who refused

**Joint Statement, 146 CONG. REC. at S7775.

*'See, e.g., Charles v. Frank, 2004 WL 1303403, at *2 (7" Cir. Jun. 4,

2004) (holding that “suppressing gang activity to promote a secure and

safe prison environment is indisputably a compelling interest”); Ulmann

v. Anderson, No. 02-405, 2004 WL 883221, at *8 (D.N.H. Apr. 26, 2004)

(denying prisoner access to religious item that could be converted into a

weapon advanced prison’s compelling interest of maintaining safety).

See also May v. Baldwin, 109 F.3d 557, 563 (9" Cir. 1997) (holding

under RFRA that maintaining prison security is a compelling government

interest); Lawson v. Singletary, 85 F.3d 502, 512 (11" Cir. 1996) (same);

Hamilton v. Schriro, 74 F.3d 1545, 1552 (8" Cir. 1996) (same).

21

to work on the Sabbath), RLUIPA does not invest religious

prisoners with absolute rights. Instead, it provides a means

to account for the interests of others who might be impacted

by a particular religious practice. | Moreover, unlike

RLUIPA, the Caldor statute did not lift a government-

imposed burden on religious exercise; instead, it lifted

privately-imposed burdens on religious exercise by imposing

“substantial” and “significant” costs on other private parties.

Id. at 708-10. Given RLUIPA’s differences from the

Connecticut statute, it is not surprising that the lower court in

this case did not even attempt to rest its holding on Caldor.

At the very least, there is no basis for holding

RLUIPA to be facially unconstitutional because of any

alleged impermissible effects on others. In many, if not

most, RLUIPA cases, the requested accommodation will not

impose any harm at all on other prisoners, guards, or other

third parties. For example, it is difficult to see how allowing

a Greek Orthodox prisoner to receive communion wine or a

Jewish prisoner to receive a kosher diet has any adverse

impact on the lives of other prisoners or prison guards.

Certainly these examples appear to pose less of a threat to the

safety of prisoners and prison guards than other practices that

Ohio’s prisons do allow, such as allowing prisoners to wield

the instruments necessary to slaughter animals.**

Lacking any precedent, then, for its holding that

RLUIPA has impermissible effects on “non-religious

persons,” the lower court resorted to conjecture, asserting

that RLUIPA will “induce prisoners to adopt or feign

religious belief in order to receive the statute’s benefits.”

Cutter, 349 F.3d at 266. As an initial matter, the lower

court’s claim rests on the dubious assumption that the

religious exercise RLUIPA accommodates is typically

*See “Inmates to Help Slaughter Their Own Beef”

http://www.wkyc.com/news/news fullstory.asp?id=25937.

22

desirable to other prisoners. But this assumption has no basis

in the record before Congress or elsewhere. Acts of religious

faith, though deeply meaningful to an adherent, often appear

irrational or baffling to a non-adherent, thus inviting derision

rather than envy. Similarly, the rigorous attention to detail

and form required by many religious observances (e.g.

keeping a kosher diet) makes feigned devotion improbable.*°

But even if a few prisoners did feign belief to try to

take advantage of RLUIPA, the Act (like RFRA) does not

prevent prison administrators from inquiring, as courts also

may, into the sincerity of the religious beliefs of prisoners.

Indeed, RLUIPA calls for such an inquiry, and puts the

burden of proof on the prisoner-claimant. Just as sincerity of

belief is a “threshold requirement” for a Free Exercise

claimant,” so too have lower courts held that it is a threshold

showing for a RLUIPA or RFRA claimant.*5 Thus, even

assuming that a flood of religion-faking, claim-filing

prisoners were to emerge after RLUIPA—and there is

absolutely no evidence that it has—prison administrators

retain the means to address the issue of feigned belief.

Finally, even where a particular _ religious

accommodation may be desirable for reasons other than faith,

(e.g., consuming wine for communion), that fact alone would

hardly render an accommodation unconstitutional. If that

“In addition, the fact that religious practice typically imposes various

kinds of costs on its practitioners greatly reduces the risk of feigned

religiosity. See, e.g., University of Great Falls v. NLRB, 278 F.3d 1335,

1344 (D.C. Cir. 2002) (costs and burdens borne by overtly religious

colleges significantly reduces the risk that a college will feign religiosity

in order to receive a religious exemption from federal labor laws).

See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972); Levitan v.

Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002).

**See, e.g., Coronel v. Paul, 316 F. Supp. 2d 868, 876 (D. Ariz. 2004)

(RLUIPA requires a showing that the desired conduct is “motivated by

sincere religious belief”); Kikwmura v. Hurley, 242 F.3d 950, 960 (10"

Cir. 2001) (sincere religious belief required to prevail under RFRA).

23

were true, then all sorts of religious accommodations in all

sorts of contexts (even those required by the more deferential

Turner v. Safley test) would be at risk of violating the

Establishment Clause by creating some incentive, no matter

how small, to feign religious belief. For example, such an

inducement to feign religious belief would presumably arise

from an act providing a religious exemption from the general

prohibition against peyote use. Indeed, if peyote is a

desirable (yet dangerous) hallucinogenic substance, as those

who have outlawed it believe, see 21 U.S.C. § 812 (making

peyote a Schedule | controlled substance), the inducement to

fake religious devotion to obtain the benefit of the

accommodation would seem particularly strong. But in |

directing religious peyote users to the legislature to obtain a

religious exemption, this Court did not even suggest that the

exemption might induce false piety in violation of the {

Establishment Clause. See Smith, 494 U.S. at 890.°°

d. RLUIPA _ scrupulously avoids any

impermissible endorsement of religion.

Finally, the argument of the lower court drawn from

endorsement jurisprudence must also fail, as RLUIPA avoids

any impermissible endorsement of religion in general, or of

any particular religion, In the lower courts, some prison

Officials have argued that RLUIPA violates Lemon’s

“effects” prong because it “convey[s] a message that religion

is favored or preferred . . . over disbelief.” See, e.g., Brief of

Defendants-Appel' ints at 49 in Charles v. Verhagen, No. 02-

3572 (7" Cir. 2003) (arguing that RLUIPA impermissibly

“favor[s] religious belief over disbelief”) (quoting County of

Allegheny v. ACLU, 492 U.S. 573, 635 (1989) (O’Connor, J.,

concurring)). But that argument—which would also make

**Congress took this Court at its word in Smith and passed the American

Indian Religious Freedom Act Amendments of 1994, 42 U.S.C. § 1996a,

which allows the Native American Church to use peyote.

24

religious accommodations per se unconstitutional—is flatly

contrary to Amos and to other decisions of this Court and

opinions of its individual Justices. Indeed, this Court has

never invalidated an accommodation on this ground.

The accommodation upheld in Amos, for example,

was limited to religious employers seeking to make

personnel decisions on the basis of religious criteria. The

statute contained no analogous accommodation for

organizations—like gender or race-specific advocacy

groups—that might have had similarly legitimate reasons for

making personnel decisions on the basis of gender or race.

Yet no member of the Court found that this disparity created

an impermissible endorsement of “religion . . . over

disbelief” or, indeed, of the religious over the secular.

Justice O’Connor’s opinion concurring in the

judgment cogently explained why this disparity is not an

endorsement of religion. She noted that, even where an

accommodation is limited to religion and is not required by

the First Amendment, it will not give rise to an impermissible

endorsement as long as there is “an identifiable burden on the

exercise of religion that can be said to be lifted by the

government action.” Amos, 483 U.S. at 348 (O’Connor, J.,

concurring) (emphasis in original). That is because, as

Justice O’Connor had previously explained in Wallace v

Jaffree, the endorsement inquiry must be undertaken from

the standpoint of a well-informed, objective observer,” who

“is acquainted with the Free Exercise Clause and the values it

promotes.” 472 U.S. 38, 83 (1985) (O’Connor, J.,

concurring) (emphasis added). Thus, even where an

accommodation is not constitutionally required, “one can

plausibly assert that government pursues Free Exercise

Clause values when it lifts a government-imposed burden on

the free exercise of religion.” Jd. (emphasis added). In that

circumstance, an “objective observer should perceive the

Government action as an accommodation of the exercise of

25

religion rather than as a Government endorsement of

religion.” Amos, 483 U.S. at 349.

The same analysis applies here, with at least as much

force as in Amos. Here, there can be no question that

incarceration itself creates significant, government-imposed

burdens on religious exercise. See, e.g., Turner, 482 U.S. at

89-90. By providing a means in some cases for those

burdens on religious exercise to be lifted, RLUIPA, like the

Statute in Amos, is properly seen “as an accommodation of

the exercise of religion rather than as a Government

endorsement of religion.” Amos, 483 U.S. at 349.

Furthermore, RLUIPA poses even less of an

endorsement issue than the statute in Amos. Whereas the

Statute in Amos created a blanket religious exemption,

RLUIPA does not seek to lift burdens on religious exercise

across the board. Instead, RLUIPA first requires that a

prisoner demonstrate that a specific state-imposed restriction

imposes a substantial burden on that specific prisoner’s

religious exercise.*’ This requirement guarantees that, in

every case, there is “in fact . . . an identifiable burden on the

exercise of religion that can be said to be lifted by” the

statute. Amos, 483 U.S. at 348 (emphasis in original). But

that is not all. As discussed above, RLUIPA then allows a

state to preserve its restriction—and the corresponding

burden on religious exercise—if it can demonstrate that the

restriction is the least restrictive means of pursuing a

compelling state interest. See 42 U.S.C. § 2000cc-1(a).

Thus, unlike the statute upheld in Amos, RLUIPA’s

burden-lifting function is both burden-specific and contingent

on the absence of countervailing compelling state interests.

"See 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 substantially burdens the

plaintiff's exercise of religion”).

26

If the general burden-lifting statute upheld in Amos does not

create an impermissible endorsement, a fortiori the much

more limited burden-lifting provisions of RLUIPA cannot

create such an endorsement either.

RLUIPA’s generality further minimizes any possible

risk of impermissible endorsement. To be sure, this Court

has never required religious accommodations to be of equal

benefit to all beliefs and believers. See, e.g., Lee, 505 U.S. at

628-29 (Souter, J., concurring) (“[I]n freeing the Native

American Church from federal laws forbidding peyote use,

... the government conveys no endorsement of peyote rituals,

the Church, or religion as such; it simply respects the

centrality of peyote to the lives of certain Americans”). But

where, as here, the accommodation Statute is cast in general

terms and, in principle, is equally available to all believers of

whatever stripe, the risk that an objective observer will see

the exemption as “Government endorsement of religion”

rather than as a legitimate “accommodation of . . . religion,”

Amos, 483 U.S. at 349, is truly minuscule.

In sum, RLUIPA does not “impermissibly advance”

religion within the meaning of this Court’s Establishment

Clause jurisprudence. Lemon, 403 US. at 613. See also

Amos, 483 U.S. at 348 (permissible accommodations are not

“unjustifiable awards of assistance” to religious people or

organizations) (O’Connor, J., concurring). For RLUIPA

does not involve the “government itself” advancing religion,

Amos, 483 U.S. at 337. Instead, the Act “pursues Free

Exercise Clause values [by] .. . liftiing] a government-

imposed burden on the free exercise of religion.” Wallace,

472 U.S. at 83 (O’Connor, J., concurring).

C. RLUIPA Does Not Foster Excessive Entanglement

with Religion.

27

No circuit court, not even the court below,*® has

_found RLUIPA excessively entangling, as RLUIPA entails

no greater entanglement than the ordinary application of Free

Exercise doctrine. For example, even under the deferential

Turner test for Free Exercise claims, the government must

determine whether the practices to be accommodated are

both religious and sincerely held.*” Thus, RLUIPA “does not

require prison officials to develop expertise on religious

worship,” Mayweathers, 314 F.3d at 1069, any more than the

well-established Turner test does.“ Thus, finding excessive

entanglement here would contradict not only common sense,

but also this Court’s emphasis that “[tjhere is ample room

under the Establishment Clause for benevolent neutrality

which will permit religious exercise to exist without

sponsorship and without interference.” Amos, 483 U.S. at

334 (internal quotation omitted).

*®See Cutter, 349 F.3d at 267 (“[W]e question whether RLUIPA requires

any greater interaction between government officials and religion than

exists under present law’’).

See, e.g., Sutton v. Rasheed, 323 F.3d 236, 250-51 (3d Cir. 2003)

(holding that a court deciding an inmate’s Free Exercise claim must first

determine whether the belief at issue is “religious” and “sincere”);

LaFevers v. Saffle, 936 F.2d 1117, 1119 (10™ Cir. 1991) (same); Kent v.

Johnson, 821 F.2d 1220, 1224 (6" Cir. 1987) (same); Dettmer v. Landan,

799 F.2d 929, 931-32 (4" Cir. 1986) (same). See also Mockaitis, 104

F.3d at 1530 (“Of course, application of RFRA, like the application of the

First Amendment itself and any objection made under this amendment,

requires a court to determine what is a religion and to define an exercise

of it. There is no excessive entanglement”).

“in addition, RLUIPA’s definition of “religious exercise,” 42 U.S.C.

§ 2000cc-5(7)(A), like Free Exercise doctrine itself, is designed to

minimize entanglement by precluding inquiry into the rationality of a

belief or its centrality within a system. See, e.g., Hernandez v. Comm'r,

490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the

centrality of particular beliefs or practices to a faith, or the validity of

particular litigants’ interpretations of those creeds.”); Thomas v. Review

Bd. of Ind., 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be

acceptable, logical, consistent, or comprehensible to others in order to

merit First Amendment protection”).

28

In sum, because RLUIPA—like so many other

religious accommodations—-satisfies all three elements of the

Lemon test, it does not violate the Establishment Clause.

II. RLUIPA Section 3 Is a Constitutional Exercise of

Congress’ Spending Power.

Every court to address the issue of whether RLUIPA

Section 3 is a valid exercise of Congress’ Spending Power

has concluded that RLUIPA fits comfortably within the

limits of that power.*’ The Coalition’s members fully agree

with the analysis of the lower courts that have rejected

Spending Clause challenges, as well as with the arguments

submitted by the Petitioners in this case.

IlII.RLUIPA Section 3 Is a Constitutional Exercise of

Congress’ Commerce Power.

In United States v. Lopez, 514 U.S. 549, 561 (1995),

this Court made clear that a statute enacted under the

Commerce Clause is not facially unconstitutional if it

contains a jurisdictional element that “ensure[s], through

case-by-case inquiry, that [the activity in question] affects

interstate commerce.” Unlike the challenged statutes in

Lopez and United States v. Morrison, 529 U.S. 598 (2000),

RLUIPA is supported by an “express jurisdictional element

which might limit its reach to a discrete set of [burdens on

prisoners’ religious exercise] that additionally have an

explicit connection with or effect on interstate commerce.”

Morrison, 529 U.S. at 611-12 (internal quotation omitted).

Accordingly, the presence of a jurisdictional element in

RLUIPA Section 3(b)(2) suffices alone to reject a facial

challenge to the Act as exceeding the limits of the Commerce

*'See, e.g., Benning, 2004 WL 2749172, at *3-6 (rejecting Spending

Clause challenge to RLUIPA Section 3); Charles, 348 F.3d at 608 (7

Cir. 2003) (same); Mayweathers, 314 F.3d at 1067 (9" Cir. 2002) (same).

29

power: by its own terms, RLUIPA applies only to conduct

affecting “commerce with foreign nations, among the several

States, or with Indian tribes.” 42 U.S.C. § 2000cc-1(b)(2).

Compare id. with U.S. CONST. Art. I., § 8, cls. 3.

The jurisdictional element also precludes as-applied

challenges under the Commerce Clause. If the conduct at

issue in a particular case satisfies the jurisdictional

requirement of Section 3(b)(2), then the conduct also falls

within the sweep of the commerce power and may be

regulated constitutionally. But if the facts do not Satisfy the

jurisdictional element, then the Act does not even reach the

conduct under the commerce power. Thus, RLUIPA respects

constitutional limits by not regulating conduct outside the

- scope of the Commerce power. See, e.g., United States v.

Grassie, 237 F.3d 1199, 1211 (10" Cir 2001) (“[B]y making

interstate commerce an element of the [Church Arson

Prevention Act] ... to be decided on a case-by-case basis,

constitutional problems are avoided”). In other words, the

Act applies either constitutionally, or not-at all.

CONCLUSION

For the foregoing reasons, this Court should uphold

Section 3 of RLUIPA as constitutional.

Respectfully submitted,

ANTHONY R. PICARELLO, JR.

Counsel of Record

DEREK L. GAUBATZ

THE BECKET FUND FOR RELIGIOUS LIBERTY

1350 Connecticut Avenue, NW, Suite 605

Washington, DC 20036

Phone: (202) 955-0095

December 20, 2004 Counsel for Amicus Curiae

30

eee ae

APPENDIX A

The Coalition for the Free Exercise of Religion

includes the following organizations:

Agudath Israel of America

Aleph

American Center for Law and Justice

American Ethical Union

Americans for Religious Liberty

American Jewish Committee

Anti-Defamation League

Association of Christian Schools International

Association on American Indian A ffairs

Baptist Joint Committee

Becket Fund for Religious Liberty

B’nai B’rith International

Central Conference of American Rabbis

Christian Legal Society

Clifton Kirkpatrick, Stated Clerk of the Presbyterian Church (USA)

Council on Religious Freedom

Council on Spiritual Practices .

Ethics & Religious Liberty Council of the Southern Baptist

Convention

Friends Committee on National Legislation

General Council on Finance and Administration of

The United Methodist Church

Hadassah, the Women's Zionist Organization of America

Hindu American Foundation

Institute on Religion & Public Policy

International Church of the Foursquare Gospel

International Commission on Freedom of Conscience

Jewish Council for Public Affairs

Jewish Prisoner Services International

31

Jewish Reconstructionist Federation

Liberty Counsel

Liberty Legal Institute

Mennonite Central Committee U.S., Washington Office

Minaret of Freedom Institute

National Council of the Churches of Christ in the USA

National Ministries, American Baptist Churches, USA

North American Religious Liberty Association

Northwest Religious Liberty Association

People For the American Way

Peyote Way Church of God

Philadelphia Ethical Society

Prison Fellowship

Queens Federation of Churches

Rabbinical Council of America

Seventh-day Adventist Church (General Conference

World Headquarters)

Shambhala International

Shaykh Mohamed Hisham Kabbani, Chairman of the

Islamic Supreme Council of America

Sikh American Legal Defense and Education Fund

Soka Gakkai International—USA

The Church of Jesus Christ of Latter-day Saints

The First Church of Christ, Scientist, in Boston, Massachusetts

The Interfaith Alliance Foundation

The United House of Prayer For All People of the Church on the

Rock of the Apostolic Faith

Union for Reform Judaism

Union of Orthodox Jewish Congregations of America

Unitarian Universalist Association

United Sikhs

United States Conference of Catholic Bishops

United Synagogue of Conservative Judaism

32

APPENDIX B

This appendix lists a sample of Ohio laws that

accommodate religious exercise without also accommodating

secular constitutional rights.

Exemption for those with religious objections from

service in Ohio’s militia, see OHIO REV. CODE ANN. §

5923.02(B);

Property tax exemption for real property held by

churches, see OHIO REV. CODE ANN. § 5709.07(3);

Exemption for a “rabbi, priest, Christian Science

practitioner, clergy, or member of a religious order . .

. when the chemical dependency counseling activities

are within the scope of the performance of their

regular or specialized ministerial duties . . .,” from

Ohio’s chemical dependency counselor licensing

requirements, see OHIO REV. CODE ANN. §

4758.03(B);

Exemption for minors consuming certain alcoholic

beverages for religious purposes from underage

drinking laws, see OHIO REV. CODE ANN. §

4301.631(H);

Exemption for religious employers “opposed to

benefits to employers and employees from any public

or private insurance that makes payment in the event

of death, disability, impairment, old age, or retirement

or makes payments toward the cost of, or provides

services in connection with the payment for, medical

services,” from required payment of premiums into

Ohio’s worker compensation system, see OHIO REV.

CODE ANN. § 4123.15(A);

33

e Exemption for employees who have religious

“objections to joining or financially supporting an

employee organization” from required payment of fee

to employee organization who secured collective

bargaining agreement, see OHIO REV. CODE ANN. §

4117.0 (C);

Exemption for children whose parents have religious

objections to the test from required childhood health

tests, see, e.g., OHIO REV. CODE ANN. § 3701.508(2)-

(3) (religious exemption from hearing tests); OHIO

REV. CODE ANN. § 3742.30 (religious exemption

from blood lead screening test); OHIO REV. CODE

ANN. § 3701.501(2) (religious exemption from tests

for genetic disorders); OHIO REV. CODE ANN. §

3313.71 (religious exemption from tuberculosis

tests); OHIO REV. CODE ANN. § 3313.671 (religious

exemption for immunization requirements);

Availability of absentee ballots to any “elector . . .

unable to vote on the day of an election on account of

observance of the elector's religious belief.” OHIO

REV. CODE ANN. § 3509.02(6);

Exemption for employees with religious objections to

administering drugs from requirement that public

school employees administer certain prescription

drugs to students, see OHIO REV. CODE ANN. §

3313.713(F);

Defense for care givers who “rel[y] upon treatment by

spiritual means through prayer alone” to charge of

patient neglect, see OHIO REV. CODE ANN.

§ 2903.34(B)(1) ;

eee =

en

Defense for parents who for religious reasons do not

provide medical or surgical care to a child to charge

of child neglect; see OHIO REV. CODE ANN. §

2151.03(8);

Privilege from arrest for persons “within, going to, or

returning from their place of worship,” see OHIO REV.

CODE ANN. § 2331.1 i(5);

Clergy-penitent privilege for a communicant’s

confessions or other information confidentially

communicated to clergy, see OHIO REV. CODE ANN.

§ 2903.34(C);

Exemption for “cloistered member(s] of a religious

organization” from jury service, see OHIO REV. CODE

ANN. § 2331.16(5);

Exemption for religious objections to autopsy

requirement of removing deceased’s pituitary gland,

see OHIO REV. CODE ANN. § 2108.53(C);

Exemption for those with religious objections to

requirements of testing and treatment of tuberculosis,

see OHIO REV. CODE ANN. § 339.89;

Exemption of church property from participation in

Ohio’s statutorily created “special improvement

districts,” see OHIO REV. CODE ANN. § 1710.02(A);

Exemption for “bible colleges” and “bible institutes”

to requirement that institutions conferring degrees or

diplomas obtain a certificate of authorization from the

Ohio board of regents, see OHIO REV. CODE ANN. §

1713.02(E);

35

Exemption of religious organizations providing

funeral services from state laws governing preneed

funeral contracts, see OHIO REV. CODE ANN. §

1111.19(L);

Exemption to protect the “religious freedom of any

person or group” from animal slaughter laws, see

OHIO REV. CODE ANN. § 945.02;

Exemption for those whose “religion prohibits the

person from obtaining a license” from Ohio’s milk

license requirements, see OHIO REV. CODE ANN. §

917.09(1);

Accommodation of religious exercise in city jails and

workhouses by requiring “provi[sion] of religious

services therein each week” and _ permitting

employment of “a clergyman or religious

Organization to conduct such services,” see OHIO

REV. CODE ANN. § 753.18.

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