Amicus Curiae Brief — Cutter v. Wilkinson

@ tome

No. 03-9877 _OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

Jon B. Cutter, et al.,

Petitioners,

Vv.

Reginald Wilkinson, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE SENATORS

ORRIN G. HATCH AND EDWARD M. KENNEDY

IN SUPPORT OF PETITIONERS

Martin S. Lederman

(Counsel of Record)

6027 Onondaga Road

Bethesda, MD 20816

(301) 229-3936

December 20, 2004

re re aD

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES.

INTEREST OF AMICI CURIAE

INTRODUCTION

SUMMARY OF ARGUMENT

ARGUMENT

Spending Clause Authorizes RLUIPA Sections

3(a) and 3(b)(1).

8

10

10

14

16

17

1. General Welfare

2.

3. Notice

5. Coercion

II. The Commerce Clause

Authorizes RLUIPA

Sections 3(a) and 3(b)(2)

“Affecting

Section 3 Do Not

of

s Anti-Commandeering

B. The Commerce Provisions

Implicate This Court

26

a

:

:

e

ii

TABLE OF AUTHORITIES

CASES Page

Ashcroft v. ACLU, 535 U.S. 564 (2002) ........:0cc00000 7

Ashcroft v. Raich, No. 03-1454 (U.S. argued Nov.

EET ee 23

Bennett v. Kentucky Dep't of Educ., 470 U.S. 656

TT ciecaiicieiliniadeidesnbiniuanetancensemmenunsernucmenesevensenseee 16

Benning v. Georgia, No. 04-10979, 2004 WL

2749172 (11th Cir. Dec. 2, 2004)...........ccceeceeeeee 7, 15, 27

Board of Educ. of Westside Cmty. Schs. v. Mergens

ex rel. Mergens, 496 U.S. 226 (1990) ..........:c00008 8,18

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

A 7, 15,27

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) 20

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

College Savs. Bank vv. Florida Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S.

STI caleridic aici casadiinintbitepeonmasecntpetndnasesvecnenveessoese 6

Davis ex rel. Lashonda D. v. Monroe County Bd. of

EE 16

Employment Div., Dep't of Human Res. v. Smith,

I crniticicntisinreernicenensennnaneseesconemaves 1,15

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

ene 29

FCC v. League of Women Voters, 468 U.S. 364

RE EE 12, 13

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)....... 28

Golden State Transit Corp. v. City of Los Angeles,

I Sa cai anrtocenennmenasesenseenconesuscecee 29

Heffron vv. International Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640 (1981) ............ 17

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

SEED cecscssssssequiemnnaesenssmsncenensemaunesannarreererereeenene 6, 15, 28

iil

TABLE OF AUTHORITIES-continued

Page

Jim C. v. United States, 235 F.3d 1079 (8th Cir.

2000), cert. denied sub. nom. Arkansas Dep't of

Educ. v. Jim C., 533 U.S. 949 (2001)..........ccccc0e0 14

Jones v. United States, 529 U.S. 848 (2000)............. 20, 23

Lau v. Nichols, 414 U.S. 563 (1974)........:cccccceceeeees 4,8, 10

Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1313

EN ae 13

Machinists v. Wisconsin Employment Relations

Comm 'n, 427 U.S. 132 (1976) .........cccccceeseeeeseeeeees 29

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S.

ETERS A 7

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

2002), cert. denied sub nom Alameida vy.

Mayweathers, 124 S. Ct. 66 (2003)....... 7, 10, 15, 16, 27

Morales v. Trans World Airlines, Inc., 504 U.S. 374

EAE eo ana 29

National Org. for Women, Inc. v. Scheidler, 510

ETT TN ee 21

New York v. United States, 505 U.S. 144

EE ce 8, 27

O'Bryan v. Bureau of Prisons, 349 F.3d 399 (7th

al iat iain tintdeasiegaeteneenmnennin 2

Oklahoma v. U.S. Civil Serv. Comm’n, 330 U.S. 127

ich tore ai eictinmenineasnteemnsdbemanienens 4,8, 10

Pennhurst State Sch. & Hosp. v. Halderman, 451

EE ND eran ee 15, 16

Pierce County v. Guillen, 537 U.S. 129 (2003)..... 7, 18, 26

Printz v. United States, 521 U.S. 898 (1997)............ 27

Reno v. Condon, 528 U.S. 141 (2000) .............cceee passim

Rust v. Sullivan, 500 U.S. 173 (1991).........cccccceeeeees 12, 13

Sabri v. United States, 124 S. Ct. 1941 (2004)....... 8,9, 12

Scarborough v. United States, 431 U.S. 563 (1977). 22, 26

iV

TABLE OF AUTHORITIES-continued

Page

Scheidler v. National Org. for Women, Inc., 537

OR, Fa Ge ccersisiventanenisintiintiidaiaiabineaniinn 20

South Carolina v. Baker, 485 U.S. 505 (1988).... 27-28, 30

South Dakota v. Dole, 483 U.S. 203 (1987) ............. passim

Stirone v. United States, 361 U.S. 212 (1960).......... 19, 26

Tennesssee v. Lane, 124 S. Ct. 1978 (2004).............. 27

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)... 17

Thomas v. Review Bd., 450 U.S. 707 (1981) ............ 15

United States v. American Library Ass'n, 539 U.S.

SE cinccnceiisincsiseenbintiuiiicsinaiialiidgiibatainiatabeeaiiiiediie 8, 16

United States v. Bass, 404 U.S. 336 (1971).............. 22

United States v. Capozzi, 347 F.3d 327 (lst Cir.

2003), cert. denied, 124 S. Ct. 1187 (2004)........ 20, 23-24

United States v. Culbert, 435 U.S. 371 (1978) ......... 20

United States v. Green, 350 U.S. 415 (1956)............ 19

United States v. Harrington, 108 F.3d 1460 (D.C.

Ae, IPI ccnsenievcciebscnnnadinieiinipsinsiintiiiniasndiaiinaniamindiaadants 23, 24

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

United States v. Morrison, 529 U.S. 598

ETTE TT cvccsinssisienssimnenanciateimitiicinieiapieiainaditdiiiaidtadigl 5, 19, 22, 23

United States v. Robinson, 119 F.3d 1205 (Sth Cir.

TUITE insccunssunscinmsdiaieliaainiinisiaiidiabamaauiiasgatiiaiiibniiaabiatiits 20

United States v. Thomas, 159 F.3d 296 (7th Cir.

1998), cert. denied, 527 U.S. 1023 (1999)............ 26

United States v. Wilkerson, 361 F.3d 717 (2d Cir.),

cert. denied, 125 S. Ct. 225 (2004) ...........ceeeeeeeee 24-25

United States v. Valenzeno, 123 F.3d 365 (6th Cir.

TIPO ccicsensnnicctiindaitecdaistailiatissitiittaaiesitinsatiiainiaianieaii atid 20

CONSTITUTION AND STATUTES

Sa ER, GIR, Ee TR, © iccetctercecsestentcniscnnntanl passim

fF ge FRE FS eee passim

TABLE OF AUTHORITIES-continued

Page

rcs CIR MITE, Bo srrccisnnnnssonssesscsininsnemienmiasetieds passim

Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb ef seq..,........... 1,2

Religious Land Use and Institutionalized Persons

Act of 2000, Pub. L. No. 106-274, 114 Stat. 803,

42 U.S.C. §§ 2000CC ef S€q ........ccscssesrerssseeeseeeeees passim

Re im 0 Ce ccntcnciceiincnsssitinisniinsninsceisinitnciiinens 20

Be ns Oe Be ecteeiccecescencscncitcanenienineninitsiimisin 20

i slesibcaienatonentanennensaniedssnnseinettiiiniianniiunida 20-21

I cnininevicenscctnntseniassinsanibasaluniddies 21-22

FT eran ers 8

IT ciececteetiiiliennteenisenbeeneiasinninneninialaiie 21

Sa hisinsissiiesnsbasemicnencicnteensiniaduandiadnaseesees 20

TIED siccnitcscnnesieintiietinnseciialienicninhissnebiniaiatil 21

BPE cessenccescissestsinissisenisivieainiaintnndeiiees 20, 22

BP Fa iceccnssccsstnssnnnsevsinsmeninittiniosnicasenibiins 19

i Tie eriiveictenicesesstnsintisinladnnsenbestiotinneaiintntinien 21

Be SI iainscccnscenchintsiniiieminicsiguansinintaitvatios 21

PIII nestnssscisinsiannnininibidnndiiiniaiiandee 20-21

STEEL. © Fe Cicetticsitesnntarsccecsinnicemasnscsinainsainitiin 9

Be Eee cnsecciscsnsncisnsisenestintieniniasenstiiianessioes 9

I TI iiniitcsetsinsssaasniptniiebiadauasabinitini 8,9

BP A. © Fe iiccetisanceniercnsctirssessasnncnniedenniainiticinianniannion 9

Gs © Bee tichccneseiisiiatntnisinitsiiicistiniaiiiiitiliaiaapiinnias 3

I ttt isinsentesccietciepictadaiineniinestibiciiaaabinapgtaiiide 9

I cicinevcnecnnsminsssntsiesnsenniiniitenincaisi 3,9

STD ccccnomnsseseesensnsanustanineseenqeniebienie 2

Be SIE ccientonsicmnsnticipeitaiasiatiapeaimsnnmed 2

Fe Ie eccsnnnnmesanstnnsansnctonseenitguasianaageats passim

I cccccccnnsecnceitanepitihiinnneninincnita 4,24

I cciestscscetnssondanionmmnceniniinibaiues 30

FE cicniinsnssensecnnhineaennesntatainnetinantinen 3

Bei eicesccschsisnannennnescinoninnssépecninianobnet 9

vi

TABLE OF AUTHORITIES-continued

a

49 U.S.C. § 41713 (D)(1) cecccscecsssecsssessssecsssecssseesssvesen

LEGISLATIVE HISTORY

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

(Letter from Assistant Attorney General Robert

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

Joint Statement of Senator Hatch and Senator

Kennedy on the Religious Land Use and

Institutionalized Persons Act of 2000, 146 Cong.

Rec. $7774-76 (daily ed. July 27, 2000)...............

Civil Rights Restorat.on Act of 1987: Hearings

Before the Senate Comm. on Labor & Human

Resources, 100th Cong., Ist Sess. 321-22 (1987).

MISCELLANEOUS

Douglas Laycock, Theology Scholarships, The

Pledge Of Allegiance, And Religious Liberty:

Avoiding The Extremes But Missing The Liberty,

118 Harv. L. Rev. 155 (2004) .0......... eee eeeeeeeeeees

INTEREST OF AMICI CURIAE'

Amicus Orrin G. Hatch, Chairman of the Senate Committee

on the Judiciary, has been a United States Senator for 28 years,

and has served on the Committee for that entire period,

including three times as Chairman. Amicus Edward M.

Kennedy has been a United States Senator for 42 years, during

which time he has continuously served on the Committee on the

Judiciary, including as Chairman from 1979-1981.

Both amici have been ardent defenders of religious liberty

throughout their tenure in the Senate. They were sponsors of the

Religious Freedom Restoration Act of 1993 (“RFRA”), 42

U.S.C. §§ 2000bb ef seqg., and -were the two principal Senate

sponsors of the statute that is challenged in this case, the

Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), Pub. L. No. 106-274, 114 Stat. 803, 42 U.S.C.

§§ 2000cc, et seg. See Joint Statement of Senator Hatch and

Senator Kennedy on the Religious Land Use and

Institutionalized Persons Act of 2000, 146 Cong. Rec. S7774-76

(daily ed. July 27, 2000) (“Joint Statement”).

Although amici have a great interest in the Establishment

Clause question on which this Court granted certiorari, that

question is effectively addressed in the briefs of petitioners, the

United States, and other amici. In this brief, amici will address

the questions of congressional power that the respondents have

announced they will ask this Court to resolve—dquestions

concerning which the amici have long experience and

considerable interest.

INTRODUCTION

Following this Court’s decision in Employment Division v.

Smith, 494 U.S. 872 (1990), Congress overwhelmingly passed

RFRA, which as originally enacted prohibited any government

' Letters of consent have been filed with the Clerk. Pursuant to

Rule 37.6, amici curiae state that no counsel for a party authored any

part of this brief, and no person or entity, other than amici curiae and

their counsel, made a monetary contribution to the preparation or

submission of this brief.

2

within the United States from “substantially burden[ing]” a

person’s exercise of religion, unless the government could

demonstrate that imposing the burden was “in furtherance of a

compelling governmental interest” and was “the least restrictive

means of furthering that compelling governmental interest,” 42

U.S.C. § 2000bb-1.

In City of Boerne v. Flores, 521 U.S. 507 (1997), this Court

held that Congress lacked the power under section 5 of the

Fourteenth Amendment to apply RFRA to state and local

governments. City of Boerne did not affect the application of

RFRA to the federal government. Thus, for more than a decade,

RFRA has modified a// federal law, statutory or otherwise, see

42 U.S.C. §§ 2000bb-3(a), 2000bb-2(1)-(2)—including the

administration of all laws within the federal prison system,

where application of RFRA remains both constitutional and —

manageable (as the federal government concedes).”

Following City of Boerne, Congress and the President gave

long and careful consideration to that decision and to other

recent decisions of this Court respecting congressional power

and religious liberty. Congress held nine hearings, in which

numerous witnesses addressed in great detail both the need for

religious liberty legislation, and the constitutional limits of

Congress’s powers to address the problem at the state and local

level. The congressional sponsors of RLUIPA worked very

closely with the Department of Justice to carefully craft a statute

that comports with this Court’s doctrines respecting the First

Amendment and Congress’s enumerated powers.’

In 2000, Congress without recorded dissent enacted

RLUIPA, which is a much more circumscribed and targeted

statute than RFRA. It does not apply to ai// state and local law.

Instead, RLUIPA’s substantive provisions address two discrete

contexts in which Congress found that state and local

? See, e.g., O'Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir.

2003); 146 Cong. Rec. at $7776 (Letter from Assistant Attorney

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

(“Raben Letter”).

* See Raben Letter, supra.

3

governments often impose unwarranted and substantial burdens

on religious exercise. RLUIPA section 2, which is not at issue

here, protects the exercise of religion against certain substantial

burdens, discriminations and exclusions imposed by zoning and

landmark laws. Section 3, the statutory provision at issue in this

case, protects the rights of institutionalized persons to exercise

their religion free from substantial buraens imposed by -

“frivolous or arbitrary” governmental restrictions. Joint

Statement, 146 Cong. Rec. at $7775.

Specifically, section 3(a) provides that no government shall

impose a substantial burden on the religious exercise of a person

“residing in or confined to an institution,” unless the government

demonstrates that imposition of the burden on that person is the

least restrictive means of furthering a compelling governmental

interest. 42 U.S.C. § 2000cc-1(a).*

RLUIPA section 3(b), id. § 2000cc-1(b) specifies that

section 3(a)’s substantive rule applies only where at least one of

two prerequisites is met:

First, invoking its power under the Spending Clause, U.S.

Const. art. I, § 8, cl. 1, Congress provided in section 3(b)(1) that

the substantive limitation on state action in section 3(a) applies

where the substantial burden on religious exercise “is imposed in

a program or activity that receives Federal financial assistance.”

42 U.S.C. § 2000cc-1(b)(1). Section 8(6) of RLUIPA, 42

U.S.C. § 2000cc-5(6), specifically incorporates by reference the

definition of “program or activity” used in Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d-4(a), pursuant to which

the phrase includes “all of the operations of” certain entities,

including “a department, agency, special purpose district, or

other instrumentality of a State or of a local government.”

* Section 3(a) incorporates by reference the definition of

“institution” found in 42 U.S.C. § 1997, which includes certain state-

owned, operated and managed facilities and institutions, including,

inter alia, prisons and other correctional facilities; facilities for persons

who arc mentally ill, disabled, or retarded, or chronically ill or

handicapped; and institutions providing skilled nursing, intermediate,

long-term, custodial or residential care.

4

Second, invoking its power under the Commerce Clause,

U.S. Const. art. I, § 8, cl. 3, Congress provided in section 3(b)(2)

that the substantive limitation on state action found in section

3(a) applies where a plaintiff demonstrates that the substantial

burden on religious exercise “affects, or removal of that

substantial burden would affect, commerce with foreign nations,

among the several States, or with Indian tribes.” 42 U.S.C.

§ 2000cc-1(b)(2). However, Congress also added a unique

affirmative defense for the benefit of a state or local RLUIPA

defendant. Pursuant to that provision, the Commerce Clause

subsection shall not apply if the government can demonstrate

that alleviating all substantial burdens from “similar” religious

exercise across the nation would not, in the aggregate, lead to a

substantial effect on interstate, foreign or Indian commerce.

RLUIPA section 4(g), 42 U.S.C. § 2000cc-2(g).

SUMMARY OF ARGUMENT

If this Court chooses to consider the alternative arguments

for affirmance that the Ohio respondents have indicated they

will present, it should hold that Congress was authorized to

enact RLUIPA section 3 under both its Spending Clause and

Commerce Clause powers.

I. The Spending Clause provisions of RLUIPA section 3

impose general conditions upon recipients of federal funds—

conditions that apply across a wide array of federal

expenditures. This Court has upheld similar “cross-cutting”

funding conditions in cases such as Oklahoma v. U.S. Civil

Service Comm'n, 330 U.S. 127 (1947), and Lau v. Nichols, 414

U.S. 563 (1974). The particular agency-wide scope of RLUIPA

section 3’s coverage derives from a series of important civil

rights laws (including Title VI of the Civil Rights Act of 1964,

Title IX of the Education Amendments of 1972, and section 504

of the Rehabilitation Act of 1973) that impose restrictions on all

of the operations of a particular state agency that receives federal

aid. Like those statutes, however, section 3 does not apply to a

state agency operating prisons merely because the State as a

whole, or some other state agency, receives federal aid.

5

____» Section 3 satisfies all possible requirements for permissible

exercise of the conditional spending power. The condition it

imposes on public agencies serves the general welfare by

facilitating religious exercise in an environment where such

fundamental freedom is commonly constrained. It is well-

tailored to the government’s interest in not permitting its

subsidies to be used in any way to facilitate or subsidize

unnecessary burdens on religious freedom. Section 3 moreover

provides States with clear notice of the standards of conduct by

which an agency must abide if it receives federal funds. Section

3 does not induce state recipients of aid to violate the

constitutional rights of others. And the financial inducement

offered by Congress to States (and to the Ohio Department of

Rehabilitation and Corrections (“ODRC”), in particular) is not

so “coercive” as to pass the point at which “pressure turns into

compulsion.”

II. The Commerce Clause provisions of section 3 are also a

permissible exercise of Congress’s article I powers.

A. RLUIPA _ subsection 3(b)(2) incorporates a

“jurisdictional element” that requires proof of an effect upon

interstate, foreign or Indian commerce in every case. Such an

element is common to many important federal statutes, including

the Hobbs Act, the constitutionality of which this Court has

upheld. This Court has repeatedly acknowledged that such an

“affects commerce” element is a means by which Congress may

invoke its full authority under the Commerce Clause. Such an

element ensures facial compliance with the Commerce Clause

by limiting the statute’s reach to a discrete set of cases that have

an explicit and concrete connection with or effect upon interstate

commerce—in contrast to the provisions this Court declared

invalid in United States v. Lopez, 514 U.S. 549 (1995), and

United States v. Morrison, 529 U.S. 598 (2000), both of which

lacked such a jurisdictional element. Indeed, RLUIPA goes one

significant step beyond what is necessary to ensure its

constitutionality: It contains a unique affirmative defense for the

benefit of state or local RLUIPA defendants, which forecloses

application under section 3’s Commerce Clause subsection if the

government demonstrates that alleviating ai! substantial burdens

6

from “similar” religious exercise would not, in the agg. cgate,

substantially affect interstate, foreign or Indian commerce.

In all events, RLUIPA is plainly constitutional as applied to

a discrete class of claims at issue in these cases, involving

requests for religious items that plaintiffs allege can only be

obtained through interstate commercial transactions: prohibiting

prisoners from obtaining these items quite literally prevents

specific transactions in interstate commerce.

B. The prohibitory commands of the commerce provisions

of section 3 do not violate this Court’s “anti-commandeering”

doctrine. Those provisions do not require States to enact any

laws or regulations or to assist in the enforcement of federal

statutes regulating private individuals; and they do not “require

the States in their sovereign capacity to regulate their own

citizens.” Reno v. Condon, 528 U.S. 141, 151 (2000) (emphasis

added). A contrary holding would implicate numerous federal

laws specifically limiting state regulation, including many

deregulatory preemption statutes and doctrines.

ARGUMENT

Amici agree with petitioners and with the United States that

section 3 of RLUIPA does not violate the Establishment Clause,

because it alleviates substantial, government-imposed burdens

on religious exercise without imposing significant burdens on

other private parties. See Corporation of Presiding Bishop of

Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.

327 (1987).° Respondents have indicated (Br. in Resp. 14-20)

* Respondents contend that some RLUIPA accommodations will

endanger the safety of prison guards and fellow prisoners. Br. in Resp.

12. Even if that assumption were correct, the mere possibility of such

as-applied problems cannot possibly be grounds for invalidating

section 3 on its face. In any event, the assumption is mistaken, for two

reasons: First, RLUIPA does not appear to impose upon Ohio prison

officials any requirements of religicus accommodation greater than

those the Ohio Constitution already imposes of its ovn force. See

Humphrey v. Lane, 728 N.E.2d 1039, 1043, 1045 (Ohio 2000).

Accordingly, it is unlikely that RLUIPA would be the source of any of

the risks that respondents identify. Second, even assuming arguendo

7

that they will ask this Court to consider whether the Spending

and Commerce Clauses authorized Congress to enact section 3,

in the event this Court holds that section 3 does not facially

violate the Establishment Clause. The Court should decline that

invitation.

The court of appeals based its decision solely upon the

Establishment Clause and did not consider the questions of

congressional power (Pet. App. A at 8). This Court “generally

do[es] not address arguments that were not the basis for the

decision below.” Matsushita Elec. Indus. Co. v. Epstein, 516

U.S. 367, 379 n.5 (1996)—a practice the Court has followed in

cases where it has reversed a lower court’s judgment declaring a

federal statute invalid, where alternative grounds for invalidation

had not been addressed below. See, e.g., Pierce County v.

Guillen, 537 U.S. 129, 148 n.10 (2003); Ashcroft v. ACLU, 535

U.S. 564, 585-86 (2002).

Nor are the questions of congressional power independently

worthy of this Court’s review at this time. The three courts of

appeals to have opined on the matter have held that RLUIPA

section 3 is permissible Spending Clause legislation,° and

therefore neither they, nor any other court of appeals, has had

that a RLUIPA accommodation would result in an additional, serious

safety risk, state defendants in such a case would be able to prevail

quite easily as a statutory matter, because in determining whether a

state institution has a narrowly tailored, compelling justification for

denying the requested exemption, courts should “‘continue the

tradition of giving due deference to the experience and expertise of

prison and jail administrators in establishing necessary regulations and

procedures to maintain good order, security and discipline, consistent

with consideration of costs and limited resources.”” Joint Statement, |

146 Cong. Rec. at $7775 (quoting RFRA Senate Report, S. Rep. No.

103-111, at 10 (1993)).

° Mayweathers v. Newland, 314 F.3d 1062, 1066-68 (9th Cir.

2002), cert. denied sub nom. Alameida v. Mayweathers, 124 S. Ct. 66

(2003); Charles v. Verhagen, 348 F.3d 601, 606-10 (7th Cir. 2003);

Benning v. Georgia, No. 04-10979, 2004 WL 2749172, at *3-*7 (11th

Cir. Dec. 2, 2004).

8

reason to address Congress’s authority to impose section 3

directly under the Commerce Clause.

However, if the Court does address questions of Congress’s

authority to enact section 3, it should hold that section 3 is a

proper exercise of Congress’s enumerated article I powers.

I. The Spending Clause Authorizes RLUIPA Sections 3(a)

and 3(b)(1).

Pursuant to its power to “provide for the common Defence

and general Welfare of the United States,” U.S. Const. art. I, § 8,

cl. 1, Congress has “wide latitude” to impose conditions on

States’ receipt of federal funds, United States v. American

Library Ass'n, 539 U.S. 194, 203 (2003) (plurality opinion),

even where such conditions influence a State to act in a way that

Congress could not directly compel absent the funding

condition. See South Dakota v. Dole, 483 U.S. 203, 207 (1987);

New York v. United States, 505 U.S. 144, 167, 171-73 (1992).

RLUIPA itself does not authorize any federal funding.

Instead, RLUIPA section 3(a), as applied by section 3(b)(1),

establishes a cross-cutting, or background, condition that applies

to the receipt of al/ federal funds by a particular state agency, a

condition intended to ensure that federal monies are not used to

subsidize; or facilitate, certain disfavored conduct—in this case,

unnecessary governmental imposition of substantial burdens on

religious exercise. This Court has long upheld Congress’s

power to enact laws imposing such cross-cutting funding

conditions. E.g., Oklahoma v. U.S. Civil Serv. Comm'n, 330

U.S. 127 (1947); Lau v. Nichols, 414 U.S. 563 (1974).’

” See also Board of Educ. of Westside Community Schools v.

Mergens ex rel. Mergens, 496 U.S. 226, 241 (1990) (requirement of

Equal Access Act, 20 U.S.C. § 4071(a), that public secondary schools

that receive any federal financial assistance cannot engage in certain

forms of discrimination with respect to “noncurriculum-related”

student groups, “is the price a federally funded school must pay if it

opens its facilities to noncurriculum-related student groups”). Last

Term, in Sabri v. United States, 124 S. Ct. 1941 (2004), this Court

broadly upheld the constitutionality of 18 U.S.C. § 666—not directly

on Spending Clause grounds, but on the basis of Congress’s

9

In this regard, RLUIPA is specifically patterned upon four

other important civil rights statutes: Title VI of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000d, 2000d-4(a) (prohibiting

discrimination on the basis of “race, color, or national origin” in

“any program or activity receiving Federal financial

assistance”); Title IX of the Education Amendments of 1972, 20

U.S.C. §§ 1681(a), 1687(1)(a) (barring discrimination on the

basis of sex in any “education program or activity receiving

Federal financial assistance”); section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a)-(b) (prohibiting discrimination

on the basis of disability in “any program or activity receiving

Federal financial assistance”); and the Age Discrimination Act

of 1975, 42 U.S.C. §§ 6102, 6107(4) (proscribing age

discrimination under “any program or activity receiving Federal

financial assistance”).*

The upshot of each of these statutes is that if a state chooses

to permit one of its agencies or departments to receive federal

aid, the state thereby knowingly consents to the requirement

that, in all of the operations of that particular agency, state

conduct is constrained by (at least) the restrictions on conduct

contained in these five statutes.’

“corresponding authority under the Necessary and Proper Clause, Art.

I, § 8, cl. 18, to see to it that taxpayer dollars appropriated under [the

Spending] power are in fact spent for the general welfare, and not

frittered away in graft or on projects undermined when funds are

siphoned off or corrupt public officers are derelict about demanding

value for dollars.” Jd. at 1946. The decision in Sabri suggests that

cross-cutting spending-condition statutes such as section 3 of RLUIPA

might also be fruitfully viewed through the lens of the Necessary and

Proper Clause, which empowers Congress to employ “rational means”

to safeguard congressionally preferred uses of federal dollars. /d.

® Similarly, the Equal Access Act, 20 U.S.C. § 4071(a), applies

its condition to “secondary schools” receiving any federal assistance.

See note 7, supra.

* In the case of RLUIPA, the funding condition does not apply to

all state agencies that receive federal aid, because by its terms it

applies only to those agencies or departments that house or confine

persons in a statutorily specified institution. See supra at 3 & note 4.

10

RLUIPA- -like the civil-rights statutes on which it is

modeled—-satisfies this Court’s requirements for the permissible

exercise of Congress’s conditional spending power.

1. General Welfare. Even if the express “general Welfare”

requirement of the Spending Clause is judicially enforceable, but

see Dole, 483 U.S. at 207 n.2, it is plainly satisfied here:

RLUIPA section 3 furthers the general welfare by alleviating

substantial, unwarranted government-imposed burdens on

individuals’ religious exercise in settings where the exercise of

the fundamental human freedom to worship or exercise faith is

often severely constrained—namely, in state-run institutions,

including prisons.

2. Relatedness. This Court’s cases “have suggested (without

significart elaboration) that conditions on federal grants might

be illegitimate if they are unrelated ‘to the federal interest in

particular national projects or programs.’” Dole, 483 U.S. at

207 (citation omitted). RLUIPA exemplifies Congress’s power

to specify the conditions under which recipients can spend

federal money. Just as Congress has an important interest in

assuring that none of its funds are “‘spent in any fashion which

encourages, entrenches, subsidizes, or results’ in’”

discrimination, Lau, 414 U.S. at 569 (quoting Sen. Humphrey),

or on partisan political activity, see Oklahoma v. CSC, 330 U.S.

at 143, so, too, “Congress has a strong interest in making certain

that federal funds do not subsidize conduct that infringes

individual liberties, such as the free practice of one’s religion.”

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

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

(2003).

Respondents have argued that the condition RLUIPA

imposes is “unrelated ‘to the federal interest in particular

national projects or programs,’ ” Dole, 483 U.S. at 207, because

RLUIPA does not require any direct connection between its

restrictions and any specific funding streams that ODRC

receives—for example, none of ODRC’s federal funds “have

any relation to religion” or to prisoners’ religious rights.

Defendants’-Appellants’ Final Opening Br. (6th Cir.) (“Def.

CTA6 Br.”) 37-41. This argument misapprehends the nature of

1]

the federal interests at stake when Congress imposes cross-

cutting funding conditions—and prohibitory conditions on

receipt of federal funds in general. When Congress insists upon

such conditions in a statute such as RLUIPA (or Title VI, Title

IX, the Equal Access Act, etc.), it announces a federal interest

that follows with each federal dollar spent. Such conditions

generally are designed, not so much to advance or complement

the objectives of a particular federal spending program, but

instead, as a permissible means of broadly controlling how

federal moneys are to be expended. Whatever federal interer*s

a particular funding program might otherwise serve, t..

condition imposed by RLUIPA (or a similar statute) a/so serves

the federal interest in avoiding the use of federal funds to

subsidize the imposition of substantial, unjustified burdens on

religious exercise.'°

To require a nexus between the “subject-matter” of a

funding statute and every cross-cutting funding condition, as a

matter of constitutional law, would make little sense. Where

Congress does not wish to subsidize disfavored state conduct—

be it burdens on religious exercise, discrimination on the basis of

race, sex, or disability, or whatever else—there is no reason to

read the Constitution to require Congress to do so. This is true

whatever the “principal” purpose of any particular federal

funding stream might be.

Respondents have also argued that the breadth of

RLUIPA’s “program or activity” definition—which, like the

cognate provisions in Title VI, the Rehabilitation Act, etc.,

extends to all of the operations of a recipient state agency—is

too broad to pass constitutional muster. Def. CTA6 Br. 41-45.

As explained above, however, the condition at issue here is

limited to those agencies in which the State has decided to

receive federal funds. This line of demarcation is a reasonable

'0 In other words, such a cross-cutting condition achieves

precisely the same result as if Congress attached the “prohibitory”

condition (e.g., “do not discriminate on the basis of disability”) to each

and every disparate funding statute. Nothing in the Constitution

requires Congress to act in such a piecemeal fashion.

12

one for Congress to draw, because as this Court recognized last

term in addressing a similar broad nexus test in Sabri v. United

States, 124 S. Ct. 1941, 1946 (2004), money is fungible: Thus,

financial aid to a particular state agency generally will be

functionally indistinguishable from—and will “free up”—other

funds within that agency’s budget,'' and will make it difficult

for the federal government to track exactly where federal money

ends up, and what it subsidizes, within an institution or agency.

These problems are especially acute in the case of general aid

and “block grants,” such as the State Criminal Alien Assistance

Program grants that the ODRC receives, J.A. 320-21, in which

federal aid is authorized for a wide range of activities within a

broadly defined functional area, with recipients having

substantial discretion where to allocate resources. Such

assistance inevitably has economic “ripple effects” throughout

the agency and the use of it cannot be effectively traced. Thus,

it makes perfect sense for Congress to impose spending

conditions on all of the funds delivered to the state agency or

department.

Citing this Court’s decisions in FCC v. League of Women

Voters (“LWV”), 468 U.S. 364, 399-401 (1984), and Rust v.

Sullivan, 500 U.S. 173, 196-199 (1991), respondents argued in

the court of appeals that the coverage of RLUIPA section 3(a)

creates a sort of “unconstitutional condition,” barring a funding

recipient from using even wholly nonfederal funds to finance

activities prohibited by the funding condition. Def. CTA6 Br.

41-45. But Rust and LWV each involved the First Amendment

rights of private parties, and little, if any, application to the

'' See, e.g., Civil Rights Restoration Act of 1987: Hearings

Before the Senate Comm. on Labor & Human Resources, 100th Cong.,

Ist Sess. 321-22 (1987) (David S. Tatel, former Director of Health,

Education and Welfare Department’s Office for Civil Rights) (“[t]here

is absolutely no reason why a person who is discriminated against

in... the program which has more local funds because of the receipt

of federal financial assistance elsewhere in the institution . . . should

receive any less protection than the person discriminated against in the

program or activity directly receiving the feder» financial assistance’’).

13

question whether Congress has properly imposed a condition on

a state entity’s receipt of federal funds.'*

In any event, even if the inapposite unconstitutional

conditions doctrine of LWV and Rust applied with full force in

this context, RLUIPA would be fully consistent with those

decisions. In those cases, the Court explained that although

Congress may not flatly prohibit a private funding recipient from

using nonfederal funds to engage in unauthorized expression—

even as a prophylactic rule in the service of protecting the use of

the federal funds, see LWV, 468 U.S. at 400—Congress may

require the funding recipient to guarantee a strict degree of

separation between funded and unfunded activities in order to

ensure that the federal funds do not subsidize the disfavored

speech. Congress may, for example, require the recipient to

form an affiliate organization—which must be kept “physically

and financially separate” from the organization that receives

federal funds, Rust, 500 U.S. at 180, 187-190—to receive and

spend money from nonfederal sources to engage in the

expressive activities that Congress disfavors.'°

'? This Court has repeatedly noted that “Congress may, in the

exercise of its spending power, condition its grant of funds to the

States upon their taking certain actions nat Congress could not require

them to take,” College Savings Bank v. Florida Prepaid Postsecondary

Educ. Expense Board, 527 U.S. 666, 686 (1999)—an unqualified

proposition that would be strikingly out of place in the context of the

First Amendment. Indeed, in LWV itself, the Court carefully

distinguished the First Amendment unconstitutional conditions

doctrine from the more deferential scrutiny that the Court applies in

cases involving conditions placed on public recipients of federal funds.

468 U.S. at 401 n.27 (distinguishing Oklahoma v. CSC).

'> In Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307 (2004), the

Court went so far as to approve an analogous segregation requirement

as applied to an individual’s choice of undergraduate studies. The

Court held that the State of Washington not only could decline to

permit its scholarships to be used for the study of devotional theology,

but also that if students wished to pay for such devotional studies with

non-scholarship funds, the State could require them to “use their

scholarship to pursue a secular degree at a different institution from

where they are studying devotional theology.” /d. at 1313 n.4.

14

RLUIPA (and the conditional-spending statutes on which it

is patterned) is cut from the same conceptual cloth: By —

imposing funding conditions on all of the operations of a state

agency that receives any federal funds, Congress has elected to

draw the line of coverage according to each State’s own chosen

governmental structure. States may thus engage in any

operations they wish free of the conditions imposed by, e.g.,

RLUIPA and section 504 of the Rehabilitation Act, by

segregating those functions—or even, in the context of

RLUIPA, by segregating particular prisons and _ other

institutions—in agencies or departments for which the State

declines to accept federal funding. “The State is accordingly not

required to renounce all federal funding to shield chosen state

agencies from compliance with [the condition].” Jim C. v.

United States, 235 F.3d 1079, 1081 (8th Cir.) (en banc), cert.

denied sub nom. Arkansas Dept. of Educ. v. Jim C., 533 U.S.

949 (2001). To be sure, such segregation might well be costly

and inconvenient. But that option is certainly no more

untenable—and, more importantly, is far less constitutionally

worrisome—than the option of a private health-care organization

to establish a separate and independent affiliate in which it can

discuss abortion (Rust), or the opportunity of an undergraduate

student to attend two colleges simultaneously in order to retain

scholarship eligibility and still continue to work toward dual

majors (Locke).'*

'* It has been suggested that the Court’s recent “tolerance for such

prophylactic rules’—such as permitting a_ stringent Rust-like

segregation requirement in Locke—in the context of individuals’

exercise of constitutional rights, threatens to undermine the

unconstitutional conditions doctrine by “swallowing the rule against

penalizing a constitutionally protected activity by withholding other

related benefits.” Douglas Laycock, Theology Scholarships, The

Pledge Of Allegiance, And Religious Liberty: Avoiding The Extremes

But Missing The Likerty, 118 Harv. L. Rev. 155, 181 (2004). Whether

or not that is so, there should be no need for similar concern in the

context of segregation requirements imposed on state recipients of

federal funding. /d. at 182-183.

15

3. Notice. Congress must provide the States

“*unambiguous[]’” notice of funding conditions, so as to

““enabl[e] the States to exercise their choice [to receive such

funding] knowingly, cognizant of the consequences of their

participation.’” Dole, 483 U.S. at 407 (quoting Pennhurst State

Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). RLUIPA is

crystal clear in informing States that section 3(a)’s substantive

restriction applies to all of the operations of a state agency such

as ODRC if that agency receives any federal financial

assistance. See supra at 3. Accordingly, courts of appeals have

uniformly and correctly concluded that RLUIPA satisfies the

Pennhurst plain-notice requirement."

In the lower courts, some states (but not Ohio), have argued

that RLUIPA’s substantive requirement—in particular, its “least

restrictive means” test—is too amorphous to give States

sufficient notice of what federal law requires when they accept

federal funds. These states have relied on this Court’s statement

in Pennhurst, 451 U.S. at 24, that a “least restrictive setting”

standard in a different statute was “largely indeterminate.” That

argument misses the mark for at least two reasons. For one,

RLUIPA’s “least restrictive means” standard is a familiar one in

the area of religious exercise,'° and Ohio, in particular, can

hardly be heard to complain about it, because it is by terms the

same standard that the Ohio Constitution prescribes to govern

the conduct of the prison officials who are defendants here. See

Humphrey v. Lane, 728 N.E.2d 1039, 1043, 1045 (Ohio 2000).

Moreover, the argument misreads Pennhurst. That case

raised the question whether Congress intended the “ieast

restrictive setting” provision of the Developmentally Disabled

Assistance and Bill of Rights Act to be a funding condition that

'S See Mayweathers, 314 F.3d at 1067; Charles, 348 F.3d at 607-

608; Benning, 2004 WL 2749172, at *4-*S5.

1© See Employment Div. v. Smith, 494 U.S. at 899 (O’Connor, J.,

concurring in the judgment) (quoting Thomas v. Review Bd., 450 U.S.

707, 718 (1981)); see also Benning, 2004 WL 2749172, at *4

(“RLUIPA gives states wide latitude in applying its provisions, but

this flexibility does not make the conditions of RLUIPA opaque.”).

16

was binding on the States at all. Given the open-endedness of

that standard, the Court concluded that States would be surprised

to learn that it was binding upon them; the canon that Congress

must “express clearly its intent” to impose such a condition on

the grant of federal funds therefore applied “with greatest force.”

451 U.S. at 24. The Court explained that if Congress had

“spoke[n] so clearly that we can fairly say that the State could

make an informed choice,” then “by accepting funds under the

Act, [States] would indeed be obligated to comply with” the

standard, notwithstanding its apparent indeterminacy. /d. at 25.

More recently, this Court has held that Title IX provides

school districts that receive federal funds sufficient notice of

their obligations regarding student-on-student sexual

harassment, even though those obligations are framed in open-

ended and highly context-dependent terms: A funding recipient

must avoid being “deliberately indifferent to [student-on-

student] sexual harassment, of which they have actual

knowledge,” that is “so severe, pervasive, and objectively

offensive, and that so undermines and detracts from the victims’

educational experience, that the victim-siudents are effectively

denied equal access to an _ institution’s resources and

opportunities.” Davis ex rel. LaShonda D. v. Monroe County

Bd. of Educ., 526 U.S. 629, 650-651 (1999). As Davis

demonstrates, and as one court of appeals reviewing RLUIPA

section 3 has explained, “Congress is not required to list every

factual instance in which a state will fail to comply with a

condition. Such specificity would prove too onerous, and

perhaps, impossible.” Mayweathers, 314 F.3d at 1067; see also

Bennett v. Kentucky Dep't of Educ., 470 U.S. 656, 665-666

(1985). All the Constitution requires is that the law “make the

existence of the condition itself—in exchange for the receipt of

federal funds—explicitly obvious.” Mayweathers, 314 F.3d at

1067. Congress has done so in RLUIPA.

4. Inducing Unconstitutional State Conduct. Federal

funding conditions must not induce recipient States to violate the

Constitution. Dole, 483 U.S. at 207-210; see also American

Library Ass’n, 539 U.S. at 203 (plurality opinion). RLUIPA

section 3 does not do so. Indeed, if in a particular case a prison

17

official would violate someone else’s constitutional rights by

granting a requested religious accommodation—such as, for

example, by granting content-based preferences for prisoners’

religious expression in a manner that the Free Speech, Press or

Assembly Clauses of the First Amendment would forbid'’—then

the avoidance of that constitutional violation would itself be a

“compelling interest” that would, under RLUIPA’s own

statutory standard, justify denial of the accommodation (at least

in the form it was requested). By its terms, then, RLUIPA

cannot fairly be construed to induce state officials to violate

constitutional rights of others.

5. Coercion. The Court noted in Dole that one of its prior

decisions had “recognized that in some circumstances the

financial inducement offered by Congress might be so coercive

as to pass the point at which ‘pressure turns into compulsion.””

483 U.S. at 211 (quoting Steward Machine Co. v. Davis, 301

U.S. 548, 590 (1937)). The Court reiterated, however, the

skeptical caution of that earlier case that if there is such a

metaphysical point at which “pressure turns into compulsion,” it

is unlikely that the judiciary is capable of discerning it: “‘[T]o

hold that motive or temptation is equivalent to coercion is to

plunge the law in endless difficulties. The outcome of such a

doctrine is the acceptance of a philosophical determinism by

which choice becomes impossible.”” /d. (quoting Steward

Machine, 301 U.S. at 589-590).

Understandably, then, this Court has never held that a

funding condition applied to state recipients of aid was unduly

coercive. But be that as it may—and even if it were

theoretically possible for courts to discern a constitutional

distinction between pressure and compulsion in the context of

governmental budgetary choices—this case does not raise any

serious question of undue coercion. In the district court, Ohio

represented that federal funds comprise less than one percent of

'7 See, e.g. Heffron v. International Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640, 652-653 (1981); Texas Monthly,

Inc. v. Bullock, 489 U.S. 1, 25 (1989) (White, J., concurring in the

judgment).

18

the ODRC’s total budget. Reply Memorandum [on Motion to

Dismiss] 17. Amici do not mean to suggest that a condition

attached to federal aid comprising a more substantia! portion of

a state agency budget would be constitutionally suspect—to the

contrary, this Court has indicated that such a condition can be

constitutional even where it would be an “unrealistic option” for

the state entity to forego the federal funding. Board of Educ. of

Westside Community Schools v. Mergens ex rel. Mergens, 496

U.S. 226, 241 (1990). But if that is so, then surely Congress has

not impermissibly “coerced” Ohio to accept the terms of

RLUIPA within the operations of the ODRC merely because the

cost of avoiding such restrictions would be the loss of a

minuscule percentage of the agency’s funding.

Il. The Commerce Clause Authorizes RLUIPA Sections

3(a) and 3(b)(2).

In virtually every case litigated under RLUIPA section 3,

the Commerce Clause provisions will be superfluous. An

institution that houses or confines a section 3 plaintiff will

almost certainly be operated by a department, agency, special

purpose district, or other instrumentality of a State or of a local

government that receives federal financial assistance, and proof

of such federal assistance will be uncontested or easily

obtainable. The Spending Clause subsection of RLUIPA

therefore will be operative, and there will be no need for a

plaintiff to rely upon the “affecting commerce” subsection.

Accordingly, unless this Court were both to reverse the court of

appeals on the Establishment Clause question, and to determine

that Congress lacked the authority to enact the Spending

provision (3(b)(1)), there almost certainly will never be an

occasion for this Court to assess the constitutionality of

subsection 3(b)(2). See, e.g., Guillen, 537 U.S. at 147 n.9. In

any event, the Court would not need to reach that question in

this case, where the parties have stipulated that the spending

provision of RLUIPA applies to ODRC—as do, e.g., Title VI,

the Rehabilitation Act, etc.—because ODRC regularly receives

federal financial assistance from dozens of different sources.

19

J.A. 319-22; Defs.” Consol. Memo in Support of Motion to

Dismiss (D. Ct.) at 24 n.40.

If this Court does address the Commerce Clause question,

however, it should confirm that Congress had the authority to

enact subsection 3(b)(2), which incorporates a jurisdictional

element that is common to many important federal statutes and

that this Court has long approved.

A. The “Affecting Commerce” Jurisdictional Element

Guarantees That the Commerce Provisions of RLUIPA

Section 3 Are Constitutional.

1. Section 3(b)(2) provides that the substantive limitation

on burdening religious exercise in RLUIPA section 3(a) applies

where the government’s substantial burden on religious exercise

affects, or where removal of that substantial burden would

affect, interstate, foreign or Indian commerce. See supra at 4.

Such an “affects commerce” element is a familiar feature of the

United States Code. Most famously, the Hobbs Act, 18 U.S.C.

§ 1951(a), prohibits actual and attempted robbery or extortion

that “in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in

commerce.” This Court held almost half a century ago that the

standard set by this “affects commerce” element of the offense is

constitutional, because “racketeering affecting interstate

commerce [i]s within federal legislative control.” United States

v. Green, 350 U.S. 415, 420-21 (1956). The Court thereafter

confirmed that the “broad language” of this element “manifest(s]

a purpose to use all the constitutional power Congress has to

punish interference with interstate commerce by extortion,

robbery or physical violence.” Stirone v. United States, 361

U.S. 212, 215 (1960).

Nothing in the Court’s subsequent decisions has called into

question the facial constitutionality of the Hobbs Act.'* To the

'S Thus, even after this Court’s decisions in United States v.

Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S.

598 (2000), federal courts of appeals have regularly confirmed that the

Hobbs Act is facially constitutional, and distinguishable from the

statutes at issue in Lopez and Morrison, because of the “affects

20

contrary, since Stirone the Court has repeatedly noted that such

an “affects commerce” element signals Congress’s intent to

invoke its full authority under the Commerce Clause. See, e.g.,

Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 408

(2003); Jones v. United States, 529 U.S. 848, 854 (2000); United

States v. Culbert, 435 U.S. 371, 373 (1978); see also Citizens

Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003) (per curiam).

Heeding that signal, Congress has commonly employed an

“affecting [interstate] commerce” element in its enactments in

order to ensure their constitutionality—in more than 100

instances, by Justice Breyer’s count. See United States v. Lopez,

514 U.S. 549, 630 (1995) (Breyer, J., dissenting).

Importantly, many of these “affecting commerce” statutes

regulate conduct that almost certainly would not be deemed

“commercial” or “economic” for Commerce Clause purposes

but for the effect on commerce that the law itself requires to be

proved in each case. For example, Congress has: prohibited the

possession “in or affecting interstate or foreign commerce” of

certain biological weapons (18 U.S.C. § 175b(a)(1)) and ballistic

knives (15 U.S.C. § 1245(a)); made it unlawful for certain

persons, such as felons and drug users, to possess any firearm or

ammunition “in or affecting commerce” (18 U.S.C. § 922(g);

see also id. § 842(i) (similar prohibition with respect to

explosives)); made it unlawful to intentionally deface, damage,

or destroy any religious real property because of the religious

character of that property, or to intentionally obstruct, by force

or threat of force, any person in the enjoyment of that person’s

free exercise of religious beliefs, where the conduct “is in or

affects interstate or foreign commerce” (18 U.S.C. § 247(a)-(b));

and prohibited the use (or threatened use), without lawful

authority, of a weapon of mass destruction—including a

biological agent, toxin, or vector—against any person in the

commerce” element. See, e.g., United States v. Capozzi, 347 F.3d 327,

335-336 (Ist Cir. 2003), cert. denied, 124 S. Ct. 1187 (2004), and

cases cited therein; United States v. Valenzeno, 123 F.3d 365, 367-368

(6th Cir. 1997); United States v. Robinson, 119 F.3d 1205, 1212-1214

(Sth Cir. 1997), cert. denied, 522 U.S. 1139 (1998).

21

United States, where the results of such use affect (or, in the

case of a threatened use, would have affected) interstate or

foreign commerce (18 U.S.C. § 2332a(a)(2))."°

In many other statutes, Congress has gone further still,

prohibiting certain conduct upon proof, not that the regulated

conduct itself affects commerce, but merely that the conduct has

some specified relation to a group or enterprise that itself affects

interstate commerce. So, for example, the Racketeer Influenced

and Corrupt Organizations Act (“RICO”) makes it unlawful,

inter alia, for a person to participate in the conduct of an

enterprise’s affairs through a “pattern of racketeering activity”—

which can consist exclusively of violent acts such as murder and

kidnapping, National Org. for Women, Inc. v. Scheidler, 510

U.S. 249, 256-257 & n.4 (1994)—if the enterprise’s activities

(not necessarily the wrongdoer’s) affect interstate or foreign

commerce. 18 U.S.C. § 1962(c). This Court has addressed

§ 1962(c) of RICO numerous times (and has even held that the

enterprise need not have an economic motive—only an effect on

interstate commerce—National Org. for Women, 510 U.S. at

256-262); but the Court has never so much as hinted that there

might be something constitutionally dubious about the fact that

culpability turns on an attenuated, mediated nexus between the

defendant’s noneconomic, violent conduct and the interstate

commerce affected by the conduit enterprise.”

'9 See also, e.g., 18 U.S.C. § 844(e) (prohibiting the making of a

willful threat of, or maliciously conveying knowingly false

information concerning, violent acts, where the threat or transmission

of information is “in or affecting interstate or foreign commerce”).

?° For other statutes requiring proof of a similar sort of attenuated

nexus between the regulated conduct and the effect on interstate

commerce, see, e.g., 18 U.S.C. § 1959 (prohibiting the use of violent

conduct for the purpose of maintaining or increasing position in an

enterprise that is engaged in racketeering and the activities of which

affect interstate or foreign commerce); id. § 521(d)(2) (increasing

penalties for specified federal offenses where the defendant had the

intent to promote or further the felonious activities of a criminal street

gang or to maintair »r increase his or her position in the gang, where

“criminal street gang” is defined to mean, inter alia, an ongoing group

22

Courts have not seriously questioned the facial validity of

any of these statutes containing an “affects commerce”

jurisdictional element. Nor is enactment of such statutes

inconsistent with this Court’s recent Commerce Clause decisions

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

both of these cases, the Court specifically emphasized that the

statutes at issue required no proof of any nexus between the

proscribed conduct and interstate commerce in each case. /d. at

613; Lopez, 514 U.S. at 561-562. The Lopez Court indicated

that the presence of such a jurisdictional nexus would help meet

its constitutional concerns, because such an “express

jurisdictional element” “might limit [the statute’s] reach to a

discrete set of firearm possessions that additionally have an

explicit connection with or effect on interstate commerce.” /d.

at 562; accord Morrison, 529 U.S. at 611-612; see also id. at

613 (“Although Lopez makes clear that such a jurisdictional

element would lend support to the argument that [the provision

at issue in Morrison] is sufficiently tied to interstate commerce,

Congress elected to cast [the provision’s] remedy over a wider,

and more purely intrastate, body of violent crime.”).”!

In sharp contrast to the statutes at issue in Lopez and

Morrison, RLUIPA does contain a “jurisdictional element”—

indeed, the very element that is, when unqualified, the way in

or club the activities of which affect interstate or foreign commerce);

id. § 668 (prohibiting theft of objects of cultural heritage from a

“museum,” defined as an organized and permanent institution

established for an essentially educational or aesthetic purpose and the

activities of which affect interstate or foreign commerce).

“ Notably, the Court in Lopez specifically referred to the

“affecting commerce” element of the “felon-in-possession” statute (the

current version of which is found at 18 U.S.C. § 922(g)), which the

Court had previously considered at length in United States v. Bass, 404

U.S. 336 (1971), and Scarborough v. United States, 431 U.S. 563

(1977). As the Court explained in Lopez, 514 U.S. at 561-562, Bass

construed the possession component of that statute “to require an

additional nexus to interstate commerce,” precisely in order to

guarantee that Congress “‘will not be deemed to have significantly

changed the federal-state balance’” (quoting Bass, 404 U.S. at 349).

23

which Congress ordinarily invokes its “full authority under the

Commerce Clause.” Jones, 529 U.S. at 854.

To be sure, the Court in Morrison “reject[ed] the argument

that Congress may regulate noneconomic, violent criminal

conduct based solely on that conduct’s aggregate effect on

interstate commerce.” 529 U.S. at 617. But that holding does

not affect the constitutionality of RLUIPA, for at least two

reasons. First, even if Congress’s authority to enact RLUIPA

section 3 were “based solely” on the “aggregate effect” of the

regulated conduct on interstate commerce, that regulated

conduct—the activities of state prisoners and prison officials—

does not constitute “violent criminal conduct,” and the Court in

Morrison expressly declined to “adopt a categorical rule against

aggregating the effects of any noneconomic activity.” /d. at 613.

More importantly, however, RLUIPA does not present the

Court with the need to resolve any difficult questions about

when Congress may act to address the aggregated effects of any

noneconomic activity—nor any subsidiary, vexing questions

about the permissible scope of “economic activity” for purposes

of evaluating such aggregation—see Ashcroft v. Raich, No. 03-

1454 (argued Nov. 29, 2004)—because the regulation of state-

imposed substantial burdens on religious exercise in RLUIPA

section 3 is not based “solely on that conduct’s aggregate effect

on interstate commerce.” Instead, the “affect[ing] interstate

commerce” element limits the statute’s coverage to a “‘discrete

set of [acts] that . . . have an explicit connection with or effect on

interstate commerce.’” Morrison, 529 U.S. at 611-612 (quoting

Lopez, 514 U.S. at 562). Absent the jurisdictional element, there

would be a risk that “a few random instances of interstate effects

could be used to justify regulation of a multitude of intrastate

transactions with no interstate effects.” United States v.

Harringion, i108 F.3d 1460, 1467 (D.C. Cir. 1997). But with the

requirement of proof of an effect on interstate commerce in

every case, there is no such concern: “each case stands alone on

its evidence that a concrete and specific effect does exist,” id.,

and the inclusion of the element “addresses the Lopez Court’s

constitutional concern that congressional authority under the

Commerce Clause not become a ‘general police power of the

24

sort retained by the States,’” United States v. Capozzi, 347 F.3d

327, 336 (ist Cir. 2003) (quoting Lopez, 514 U.S. at 567), cert.

denied, 124 S. Ct. 1187 (2004).

Therefore, the Commerce Clause provision of section 3,

standing alone, would be permissible Commerce Clause

legislation. But that provision does not stand alone. In contrast

to other federal laws incorporating an “affects commerce”

element, Congress added an affirmative defense for the benefit

of state or local RLUIPA defendants, pursuant to which the

Commerce Clause subsection shall not apply if the government

can demonstrate that alleviating all substantial burdens from

“similar” religious exercise would not, in the aggregate, lead to a

substantial effect on interstate, foreign or Indian commerce. 42

U.S.C. § 2000cc-2(g). See supra at 4. For the reasons explained

above, such an affirmative defense is not constitutionally

required, because under a statute in which an “explicit” and

“concrete” effect on interstate commerce must be proved in

every case, there is no need to rely upon a “substantial effects”

test to ensure that Congress is not regulating a multitude of

“purely” intrastate transactions with no interstate connections or

effects. But surely, if statutes such as the Hobbs Act are facially

constitutional without such an affirmative defense, it follows that

RLUIPA—in which Congress has bent over backward to include

such a defense so as to accommodate local prerogatives and to

ensure that each application has indisputably national effects—

falls comfortably within the parameters of Congress’s commerce

power.

Of course, the fact that an “affects commerce” element

implements Congress’s full constitutional power does not mean

that a statute including such an element is unlimited in effect. In

some cases there may be a real question whether a particular

type or quantum of proof is adequate to show the “explicit” and

“concrete” effect on interstate or foreign commerce that the

element requires. See Harrington, 108 F.3d at 1464, 1467

(citing Lopez, 514 U.S. at 562, 567).” The connections between

22 See, e.g., United States v. Wilkerson, 361 F.3d 717, 726-732

(2d Cir.) (describing how the courts of appeals have engaged in

25

the activities regulated and interstate commerce cannot be

“impermissibly attenuated.” /d. at 1467. But such “as applied”

issues do not change the fact that a statute requiring proof of

such a jurisdictional element is facially constitutional.

2. Because this case reaches the Court on a motion to

dismiss, it would be premature to consider whether the evidence

as to each of the plaintiffs’ various claims in the case would be

sufficient to demonstrate the sort of concrete effect on interstate

commerce that the RLUIPA jurisdictional element, and the

Constitution, requires—not to mention whether Ohio would be

able to satisfy RLUIPA’s affirmative defense as to any or all

such claims. There may be some claims where plaintiffs would

be hard-pressed to demonstrate the requisite effect (e.g., requests

to be able to assemble for worship within a prison). But there is

one category of claims that should satisfy the statutory standard,

and pass “as applied” constitutional muster, in virtually every

case. Some of the plaintiffs here have requested, among other

things, that ODRC officials permit them to obtain religious

books, ritual foods and other ritual items (e.g., medallions,

bowls, crystals, teas), and have alleged that some such items can

be obtained only by commercial transactions with sources

outside Ohio. E.g., J.A. 265-66, 274, 277-78. If plaintiffs’

allegations are true, then prohibiting prisoners from obtaining

these items quite literally prevents specific transactions in

interstate commerce, and alleviating the burden on religious

exercise would result in an increase in such interstate

transactions.

Proof that application of RLUIPA will result in some such

interstate economic transactions obviously would satisfy the

jurisdictional element, and would implicate the very core of the

activity that Congress may constitutionally regulate—the sale or

transfer of “things in interstate commerce,” Lopez, 514 U.S. at

558, which is inarguably “a proper subject of congressional

regulation.” Reno v. Condon, 528 U.S. 141, 148 (2000); see

careful, fact-specific review to determine under what circumstances

the robbery of an individual affects interstate commerce for purposes

of the Hobbs Act), cert. denied, 125 S. Ct. 225 (2004).

26

also id. (sale or release of article of commerce “into the

interstate stream of business is sufficient to support

congressional regulation”); United States v. Thomas, 159 F.3d

296, 297-298 (7th Cir. 1998), cert. denied, 527 U.S. 1023

(1999).2> Accordingly, whatever else might be said about the

constitutionality of sections 3(a) and 3(b)(2) with respect to

claims alleging other sorts of effects on commerce, those

provisions are per se constitutional as applied to the class of

RLUIPA claims that would, if successful, necessarily result in

23 Indeed, this Court has held that such an element can be

satisfied—comfortably within constitutional limits—where the effect

on interstate commerce is much more attenuated and speculative than

would be the case with respect to the necessary interstate commercial

transactions alleged here. In Stirone, for example, this Court affirmed

a Hobbs Act conviction because the jury could have found that if the

defendant’s extortion there had been resisted (i.e., had it been

unsuccessful), it may have hindered or destroyed the business, and

thus interstate movements of sand to the victim “would have slackened

or stopped.” 361 U.S. at 215. The Court also has held that, under the

federal statute prohibiting felons from possessing firearms in a manner

“affecting commerce,” the government may prove that the possession

had the requisite effect on interstate commerce by showing that the

firearm traveled in interstate commerce before the defendant obtained

it (indeed, before the defendant committed the felony that triggered the

restriction on possession). Scarborough, 431 U.S. at 571-572; see also

Lopez, 514 U.S. at 561-562 (reaffirming the Court’s decision in Bass

that the jurisdictional element in the felon-in-possession statute

ensures that it falls within Congress’s commerce power). Cf Guillen,

537 U.S. at 147 (federal statute requiring states to make certain

hazardous-road reports inadmissible as evidence in_ state-court

proceedings fell within Congress’s Commerce Clause power to protect

channels of commerce in light of the following possible causal chain:

Requiring such an evidentiary rule would make it more difficult for

would-be plaintiffs to obtain evidence to support negligence actions

against state and local governments, which would in turn “result in

more diligent [government] efforts to collect the relevant information,

more candid discussions of hazardous locations, better informed

decisionmaking, and, ultimately, greater safety on our Nation’s

roads”).

27

actual interstate commercial transactions. Cf Tennesssee v.

Lane, 124 S. Ct. 1978, 1992-1993 (2004).

B. The Commerce Provisions of Section 3 Do Not

Implicate This Court’s Anti-Commandeering

Doctrine.

In the Court of Appeals, respondents argued that the

Commerce Clause provisions of RLUIPA section 3 violate

principles of federalism reflected in the Tenth Amendment by

impermissibly “commandeering” state governments. Def.

CTA6 Br. 53-60. This argument fundamentally misconceives

this Court’s anti-commandeering decisions in New York v.

United States, 505 U.S. 144 (1992), and Printz v. United States,

521 U.S. 898 (1997); it also ignores the numerous common, and

constitutionally uncontroversial, contexts in which Congress

limits the ability of states to regulate in a specific manner.”

In New York and Printz, this Court held that Congress had

circumvented principles of federalism by requiring states to

participate in the enforcement of federal law against private

parties. The statutes at issue in those cases “conscript[ed] state

governments” as “agents” of federal government, New York, 505

U.S. at 178; see also Printz, 521 U.S. at 935, in the

implementation of federal regulatory schemes that addressed

problems that the States had neither created nor exacerbated—in

New York, by requiring states to impose restrictions on private

parties or to bear the cost of remedying such parties’ conduct,

and in Printz, by requiring state officials to perform background

checks necessary to the federal government’s own enforcement

of firearms laws against private actors.

RLUIPA section 3, in contrast with the statutes in Printz

and New York—but in common with the statutes this Court

upheld in Reno v. Condon and South Carolina v. Baker, 485

4 The anti-commandeering argument is inapposite to RLUIPA

section 3’s spending provisions, as respondents conceded in the district

court proceedings, Reply Mem. [in Support of Motion to Dismiss in

Dist. Ct.] 24. See New York, 505 U.S. at 167, 171-73; Printz, 521 U.S.

at 936 (O’Connor, J., concurring); see also Mayweathers, 314 F.3d at

1069; Charles, 348 F.3d at 609; Benning, 2004 WL 2749172, at *7.

28

U.S. 505 (1988)—“does not require the [State] Legislature to

enact any laws or regulations.” Condon, 528 U.S. at 151. It

“does not require state officials to assist in the enforcement of

federal statutes regulating private individuals.” /d. And it “does

not require the States in their sovereign capacity to regulate their

own citizens.” /d. (emphasis added). Rather, RLUIPA imposes

substantive prohibitions on certain state activities that restrict

personal liberties. When a federal statute simply prevents state

actors from taking action that will (in Congress’s view) harm its

own citizens, it is difficult to see how they have been

“commandeered” into federal service. Indeed, Condon squarely

rejects such a claim.”

In the court of appeals, respondents argued that Condon is

‘napposite, and that RLUIPA is unconstitutional, because the

law “exclusively target[s] States.” Defendant-Appellants’ Final

Reply Br. 30 (6th Cir.). But nothing in the Constitution imposes

a rule that Congress can restrict state activities in or affecting

commerce only if it also imposes identical or closely similar

regulation on analogous private activities. Indeed, such a

requirement would be difficult, if not impossible, to square with

the familiar practice of federal preemption—a tradition that

extends back at least as far as Gibbons v. Ogden, in which the

Court construed a federal statute to prohibit New York from

granting a navigational monopoly. 22 U.S. (9 Wheat) 1, 11-21

(1824). Statutory preemption provisions, of course, generally

apply only to restrict state regulation affecting commerce.

In some such cases, a federal restriction on state law is

effected, not by federal-law “occupation” of the field, but by a

specific congressional command of deregulation. For example,

the Airline Deregulation Act of 1978 commands that States not

regulate with respect to any price, route, or service of an air

*° Respondents’ accusation of federal “commandeering” is

especially odd, because the substantive standard RLUIPA imposes on

the ODRC is precisely the same standard of conduct that Ohio’s own

Constitution imposes on that department. See Humphrey, 728 N.E.2d

at 1043, 1045. RLUIPA, in other words, does not appear to prohibit

Ohio prison officials fror ‘oing anything that state law permits.

29

carrier. See Morales v. Trans World Airlines, Inc., 504 U.S. 374

(1992) (considering 49 U.S.C. § 41713(b)(1)). To similar effect

is the “Machinists preemption” of the National Labor Relations

Act, see Machinists v. Wisconsin Employment Relations

Comm'n, 427 U.S. 132 (1976), which prevents state and local

authorities from regulating labor-management relations, not

because Congress replaced such regulation with a detailed

federal scheme, but because the federal policy is one of

government nonintervention: “Congress intended to give parties

to a collective-bargaining agreement the right to make use of

‘economic weapons,’ . . . free of governmental interference. . . .

The Machinists rule creates a free zone from which all

regulation, ‘whether federal or State,’ is excluded.” Golden

State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 111

(1989) (quoting Machinsts, 427 U.S. at 150, 153) (internal

citation omitted).

These forms of deregulatory federal preemption by

definition apply to restrict only governmental regulation, since

there is no analogous private regulation. See, e.g., id. at 110

(Machinists preemption “‘protect[s] a range of [private] conduct

against state but not private interference”) (quoting Wisconsin

Dep't of Industry v. Gould, Inc., 475 U.S. 282, 290 (1986)).

RLUIPA likewise restricts a particular manner in which states

may treat private parties, when such treatment affects interstate

commerce.

Indeed, the commerce provisions of RLUIPA section 3

limit state prerogatives in a most deferential manner. They

forbid certain state institutions from imposing unnecessary

6 it is worth noting, in this respect, that RLUIPA does not single

out the states for treatment that the federal government is not itself

willing to live by—RFRA applies the same liberty-enhancing test on

all of federal law. See supra at 2 & note 2. Moreover, there is good

reason that Congress has not attempted to impose section 3’s

restrictions upon analogous private institutions—namely, that if

Congress attempted to require private institutions to bear significant

burdens in order to accommodate other private parties’ religious

exercise, it could raise Establishment Clause concerns. See, e.g.,

Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-710 (1985).

30

restraints on personal religious liberty, but leave it largely to

state discretion how the state’s accommodations of religion

should be effected: “A government may avoid the preemptive

force of [RLUIPA] by changing the policy or practice that

results in a substantial burden on religious exercise, by retaining

the policy or practice and exempting the substantially burdened

religious exercise, by providing exemptions from the policy or

practice for applications that substantially burden religious

exercise, or by any other means that eliminates the substantial

burden.” 42 U.S.C. § 2000cc-3(e).

Of course, despite this broad discretion that RLUIPA

affords the States, on occasion a State may have to take some

affirmative action, or incur some minor costs, in order to comply

with RLUIPA. That, however, is “‘an inevitable consequence of

regulating a state activity. Any federal regulation demands

compliance. That a State wishing to engage in certain activity

must take administrative and sometimes legislative action to

comply with federal standards regulating that activity is a

commonplace that presents no constitutional defect.’” Condon,

528 U.S. at 150-151 (quoting Baker, 485 U.S. at 514-515).

CONCLUSION

For the foregoing reasons, the Court should reverse the

judgment of the court of appeals on the Establishment Clause

question, and decline to entertain the alternative grounds for

affirmance. If the Court addresses those alternative grounds, it

should hold that enactment of RLUIPA section 3 was a proper

exercise of Congress’s article I powers.

Respectfully submitted,

December 20, 2004 Martin S. Lederman

(Counsel of Record)

6027 Onondaga Road

Bethesda, MD 20816

(301) 229-3936