Amicus Curiae Brief — Cutter v. Wilkinson

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No. 03-9877 rtteo

TEC 7.6 2004

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

JON B. CUTTER, et al.,

Petitioners,

Vv

REGINALD WILKINSON, et ai.,

Respondents.

On Wait oF CERTIORARI TO THE

UnNitTep STATES CourRT OF APPEALS

FOR THE SixtTH CIRCUIT

BRIEF OF THE STATES OF NEW YORK AND

WASHINGTON AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

CurisTINE O. GREGOIRE ELic . UP ITZER

Attorney General of Washington Attorney General of the

1125 Washington Street SE State of New York

P.O. Box 40100 Carrun J. HALLIGAN*

Olympia, WA 98504-0100 Solicitor General

(360) 753-6200 DANIEL SMIRLOCK

Deputy Solicitor General

JEAN LIN

BENJAMIN N. GUTMAN

Assistant Solicitors General

120 Broadway, 25th Floor

New York, NY 10271

(212) 416-8020

Attorneys for Amici Curiae

* Counsel of Record

191637 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Table of Cited Authorities .....................

Interest of Amici Curiae .............ceceeeeee

Point I

Section 3 Of RLUIPA Does Not Have The

Primary Effect Of Advancing Religion ....

A. Section 3 Requires Only Religious

Accommodation, Not Promotion of

Religious Practices Unburdened by the

SED. sc uadudengnceuaeeneesusecal

B. Section 3, Propérly Applied, Will Not

Induce Non-Adherents To Adopt

Religious Belief. ............0006.

Point II

Section 3 Is Intended To Be Applied With

Deference To The Considered Judgment Of

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Page

il

TABLE OF CITED AUTHORITIES

Cases:

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

eA eerecueen dedeesinecdess ws

Bell v. Wolfish, 441 U.S. 520 (1979) ............

Corp. of the Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327

EEE era a ee

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

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

Hill-Murray Fed'n of Teachers v. Hill-Murray High

Sch., 487 N.W.2d 857 (Minn. 1992) ..........

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

Johnson v. Pa. Bureau of Corr., 661 F. Supp. 425

SE DO DUE bp wedkebivnceavrineekssavens

Larson v. Cooper, 90 P.3d 125 (Alaska 2004) .....

Larson v. Valente, 456 U.S. 228 (1982) ..........

Lawscn v. Singletary, 85 F.3d 502 (11th Cir. 1996)

Page

ul

Cited Authorities

Page

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

Lemon v. Kurtzman, 403 U.S. 602 (1971) ........ 5

Locke v. Davey, 540 U.S. 712, 1248. Ct. 1307 (2004)

Pr Pry ey mer nr iy) Sari ere steht re 3

Marria v. Broaddus, No. 97 civ 8297, 2004 U.S. Dist.

LEXIS 14829 (S.D.N.Y. July 30, 2004), appeal

docketed, No. 04-5538-pr (2d Cir. Oct. 19, 2004)

<oeuekenke 6xeutecedeedleasiaseioeeeee 14, 15

McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004)

cecbiudesdunadnnbesdekeesanietasesceeu )

Munns v. Martin, 930 P.2d 318 (Wash. 1997) ..... 2

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ... 11

Porter v. Nussle, 534 U.S. 516 (2002) ........... 13

Procunier v. Martinez, 416 U.S. 396 (1974) ...... 13

Sourbeer v. Robinson, 791 F.2d 1094 (3d Cir. 1986)

oeeveeudduseeenkse bees eee 7

State v. Balzer, 954 P.2d 931 (Wash. App. 1998) .. 9

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

iv

Cited Authorities

Page

Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003) ... 9

Swanner v. Anchorage Equal Rights Comm’n, 874

ee SEE oc ch ceescevsencesneans 2

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ... 6,7

Theriault v. Carlson, 495 F.2d 390 (Sth Cir. 1974) .. 7

Turner v. Safley, 482 U.S. 78 (1987) ............ 11

TWA v. Hardison, 432 U.S. 63 (1977) ........... 8

United States v. Lee, 455 U.S. 252 (1982) ........ 8

Zorach v. Clauson, 343 U.S. 306 (1952) ......... 1,6

United States Constitution:

PEED 5 n.eswecetncucdnenceseenauas passim

State Constitutions:

SG Se ED 590d. o bees ccKecncvsnes 2

Statutes:

ee ae EE 64934 Lane sdeaensesecewennees 16

dL a eee eater eae ND wE 16

Vv

Cited Authorities

Page

SP PE nb bai dounncukeasediaeneas 16

SS s cavinkencaceveuneusdeauene 13, 16

Religious Land Use and Institutionalized

Persons Act

Ses PS. “ovcessaccedsevedéeckeuss passim

Ge ie ID. Sob veseccccecucovevesses 13, 16

Ss EP vc nsvnncecsvessceceesses 13

Se IE, SoG he ee kecedhwadavaebas 7

Prison Litigation Reform Act,

Pub. L. No. 104-134, tit. VIII, 110 Stat.1321... 16

Ariz. Rev. Stat. § 41-1493.01 .................. 2

Conn. Gen. Stat. § 52-571b ........... ‘eaaekes 2

Pe es CE PUD nav cs sncvtndccsccunees 2

PEE POPE 9 0 kd 6ddo deen cavieseuseens 2

775 Ill. Comp. Stat. Ann. 35/15 ................ 2

J 8 FF UN Rr 2

N.Y. Election Law § 11-300 ........cccccsctees 2

vi

Cited Authorities

Page

8 rr rer rrr re 2

N.Y. Jadsctary Law $ S1D-@ 2... cc ccc ccccccecs 2

eee FA. GR. BE, Be occ ccsiccisvsres 2

Pe SUED ks WA edo cXceduene gues 2

ay Gs GD Or INNO once sc ncccceccesetess 2

ie GOED, BAUME cs occcasdewecvecsceess 2

Tex. Civ. Prac. & Rem. Code Ann. § 110.003 ..—. 2

Other Authorities:

139 Cong. Rec. $14364 (daily ed. Oct. 26, 1993) ... 11,12

139 Cong. Rec. $14466 (daily ed. Oct. 27,1993) ... 12

146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) .. 11

146 Cong. Rec. $7774 (daily ed. July 27, 2000) ... ll

S. Rep. No. 103-111 (1993), reprinted in 1993

Rees CUE 4 4-0.0:0545sceecneesceceen 11,12

Michael W. McConnell, Accommodation of Religion,

60 Geo. Wash. L. Rev. 685 (1992) ...x7....... 9

|

INTEREST OF AMICI CURIAE

Amici Curiae States of New York and Washington urge

reversal of the decision of the United States Court of Appeals

for the Sixth Circuit in Cutter v. Wilkinson, 349 F.3d 257

(6th Cir. 2003). That decision struck down section 3 of the

Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C. § 2000cc-1, which prohibits states from

imposing a substantial burden on the religious exercise of a

prisoner or other institutionalized person unless the

imposition is the least restrictive means of furthering a

compelling government interest. The court held that this

provision has the primary effect of advancing religion in

violation of the Establishment Clause of the First Amendment

because it gives religious prisoners superior rights in the

prison community and encourages prisoners to become

religious. 349 F.3d at 264-67.

Amici States have a strong interest in ensuring that state

prisons are operated safely and effectively. They also believe

that federal courts should defer to state prison administrators’

expertise in the day-to-day operation of prison systems.

At the same time, Amici States value the religious liberty of

all of their citizens, including those who are incarcerated.

Religious tolerance is among the foundations of our society,

and religious accommodation “follows the best of our

traditions” by promoting respect for individuals’ freedom of

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

Amici States believe that they should be free to remove

unnecessary state-imposed burdens on their citizens’ religious

practice, even if not required to do so by the Constitution.

New York, for example, allows a religious organization

to give preference to members of its religion, notwithstanding

2

the general law against discrimination. N.Y. Executive Law

§ 296(11). Similarly, it provides sequestered jurors with food

that meets their religious dietary requirements. N.Y. Judiciary

Law § 519-a. And it allows voters who have religious

_ objections to polling places located in churches to vote

elsewhere. N.Y. Election Law § 11-300. Indeed, at least a

dozen states have adopted measures, including some similar

to RLUIPA, to ensure that state action burdening a religious

practice is the least restrictive means of achieving a

compelling state interest.' If the government could not review

its own actions to eliminate substantial burdens on religious

practices, the constitutionality of these state laws would be

called into question.

Amici States believe that when properly construed,

section 3 of RLUIPA strikes a workable balance between the

interests in safe and effective prisons on the one hand and

religious freedom on the other. While promoting

accommodation of prison inmates’ religious practices, section

1. These states include Alabama, Arizona, Connecticut, Florida,

Idaho, Illinois, New Mexico, Oklahoma, Pennsylvania, Rhode Island,

South Carolina, and Texas. See Ala. Const. Amend. 622; Ariz. Rev.

Stat. § 41-1493.01; Conn. Gen. Stat. § 52-571b; Fla. Stat. Ann.

§ 761.03; Idaho Code § 73-402; 775 Ill. Comp. Stat. Ann. 35/15;

N.M. Stat. Ann. § 28-22-3; Okla. Stat. Ann. tit. 51, § 253; Pa. Stat.

tit. 71, § 2404; R.I. Gen. Laws § 42-80.1-3; S.C. Code Ann. § 1-32-

40; Tex. Civ. Prac. & Rem. Code Ann. § 110.003. A number of other

states, including Alaska, Massachusetts, Washington, and Wisconsin,

have adopted a similar rule judicially. E.g., Swanner v. Anchorage

Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994); Attorney Gen.

v. Desilets, 636 N.E.2d 233 (Mass. 1994); Hill-Murray Fed'n of

Teachers v. Hill-Murray High Sch., 487 N.W.2d 857 (Minn. 1992);

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

930 P.2d 318 (Wash. 1997); State v. Miller, 549 N.W.2d 235 (Wis.

1996).

3

3 properly requires courts to defer to the considered judgment

of prison administrators in assessing the feasibility of any

requested accommodation. As Amici States interpret the

provision, prison administrators do not need to provide

accommodations that would compromise the prison’s

interests in order, security, discipline, or a host of other vital

institutional concerns.

Undeniably, as the State of Ohio’s submission below

suggests, section 3 of RLUIPA has generated frivolous suits

by prisoners, a burden all states bear. This litigation burden

is exacerbated when some lower courts disregard Congress’s

intent that they defer to the experience and expertise of prison

administrators. The solution, however, is not to hold that

section 3 violates the Establishment Clause on its face, which

would have far-reaching consequences for religious

accommodation generally. Legislation such as the Prison

Litigation Reform Act of 1995, when applied consistently,

will deter frivolous suits. Guidance from this Court on the

scope of section 3, and the proper way to balance the

competing interests addressed by the provision, will also

minimize the states’ burden in RLUIPA litigation without

compromising prison administrators’ ability to accommodate

genuine religious practices.

SUMMARY OF ARGUMENT

This Court has long approved of voluntary efforts by

states to accommodate the religious practices of their citizens.

Accommodation falls within the “play in the joints,” Locke

v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 1311 (2004),

between what the Free Exercise Clause commands and what

the Establishment Clause forbids. When the state goes beyond

the minimum required by the Free Exercise Clause and lifts

4

government-imposed burdens on religious exercise, the

Establishment Clause does not require that it simultaneously

provide benefits to non-religious activities.

Properly construed, section 3 does not endorse religion.

It does not promote religious practices that are unburdened

by government rules, discriminate among religious sects,

demand accommodations that unduly burden other prisoners

or the prison system, or require accommodations that would

induce prisoners to adopt religious beliefs. The Sixth Circuit

vastly overstated the scope of section 3’s duty to

accommodate when it speculated that the provision would

encourage prisoners to become religious to enjoy greater

rights.

The scope of section 3 is also limited in another

important way. Congress intended the courts to defer to the

experience and judgment of state prison administrators in

determining what accommodations are feasible in the prison

setting. There is a long tradition of deference on prison

matters that, when applied faithfully, minimizes the burden

of section 3 litigation on the states. The legitimate concerns

about security and resources that Ohio raises are fully

addressed by application of section 3’s flexible balancing

test in a manner that reflects an appropriate level of deference.

5

ARGUMENT

POINT I

SECTION 3 OF RLUIPA DOES NOT HAVE THE

PRIMARY EFFECT OF ADVANCING RELIGION

A religious accommodation is constitutional under the

Establishment Clause if it serves a secular legislative purpose,

has a primary effect that neither advances nor inhibits

religion, and does not entangle church and state excessively.

Corp. of the Presiding Bishop of the Church of Jesus Christ

of Latter-Day Saints v. Amos, 483 U.S. 327, 335-39 (1987)

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

The Sixth Circuit found that section 3 failed this test because

it has the primary effect of advancing religion. 349 F:3d at

264-67. This is so, according to the court, because the

provision “giv[es] religious prisoners rights superior to those

of nonreligious prisoners” by making it easier for prisoners

to prevail on claims for religious accommodation than on

other claims regarding fundamental rights. /d. at 266. The

court also speculated that the prospect of these superior rights

would “encourag[e] prisoners to become religious in order

to enjoy greater rights.” Jd. As discussed below, the Sixth

Circuit is wrong.

A. Section 3 Requires Only Religious Accommodation,

Not Promotion of Religious Practices Unburdened by

the State.

Contrary to the Sixth Circuit’s suggestion, a law does

not run afoul of the Establishment Clause simply because it

lifts a government-imposed burden on religious exercise

without simultaneously providing benefits to non-religious

6

activities. Amos, 483 U.S. at 338 (“Where, as here, government

acts with the purpose of lifting a regulation that burdens the

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

exemption come packaged with benefits to secular entities.”’).

Religious accommodation — that is, “relieving people from

generally applicable rules that interfere with their religious

callings,” Lee v. Weisman, 505 U.S. 577, 627 (1992) (Souter, J.,

joined by Stevens and O’Connor, JJ., concurring) — is quite

different from government efforts to promote a religious practice

that is unburdened by government rules. /d. at 627-29. Although

section 3 grants exemptions to religious adherents that are not

available to non-practitioners, this is a facet of any religious-

accommodation scheme, including those that this Court has held

to be constitutional. See, e.g., Amos, 483 U.S. at 338 (holding

constitutional the exemption of religious organizations from the

federal ban on religious discrimination in employment); Gillette

v. United States, 401 U.S. 437, 454 (1971) (holding

constitutional the conscientious-objector exemption from

military service); Zorach, 343 U.S. at 312 (holding constitutional

a public school’s practice of releasing students for off-site

religious education).

Section 3 constitutes permissible religious accommodation

because it requires accommodation only when the government

has imposed a substantial burden on the inmate’s religious

exercise. It does not require special consideration for religious

practices that are unburdened by the state. Rather, it simply

allows practitioners to carry out their faith. See Amos, 483 U.S.

at 337 (‘A law is not unconstitutional simply because it allows

churches to advance religion, which is their very purpose.’’).

Thus, section 3 is unlike the law at issue in Jexas Monthly,

Inc. v. Bullock, 489 U.S. 1 (1989), which exempted religious

publications promulgating teachings of the faith from the state

Se “ee -

7

sales tax. As the plurality noted, the law provided a subsidy

to religion that could not “reasonably be seen as removing a

significant state-imposed deterrent to the free exercise of

religion.” Jd. at 15. There was no evidence in that case that

payment of the sales tax violated the religious beliefs of

adherents or inhibited their religious activities. /d. at 18.

Moreover, section 3 applies equally to all religious

practices, broadly covering “any exercise of religion.”

42 U.S.C. § 2000cc-5(7)(A). No religious sect is privileged

over another, nor is any specific religious practices singled

out for special treatment. It is thus unlike the law in Larson

v. Valente, 456 U.S. 228, 246 (1982), which created an

impermissible interdenominational preference by imposing

greater requirements on religious groups that solicited most

of their funds from nonmembers than on other religious

groups.

B. Section 3, Properly Applied, Will Not Induce Non-

Adherents To Adopt Religious Beliefs.

The Sixth Circuit’s fear that section 3 will induce inmates

to become “religious” is unfounded. To begin with, section

3 does not reward prisoners who profess sham religious

beliefs in order to gain rights not available to non-adherents.

The law (consistent with standards arising from First

Amendment jurisprudence) requires a prisoner to establish,

as a threshold matter, that he or she sincerely holds the alleged

religious belief. See, e.g., Sourbeer v. Robinson, 791 F.2d

1094, 1102 (3d Cir. 1986) (affirming district court’s finding

that plaintiff did not sincerely believe in congregational

prayer); Theriault v. Carlson, 495 F.2d 390, 394-95 (Sth Cir.

1974) (remanding for district court to determine whether

plaintiff’s alleged religious beliefs were sincerely held);

8

Johnson v. Pa. Bureau of Corr., 661 F. Supp. 425, 437 (W.D.

Pa. 1987) (holding that plaintiff did not sincerely believe in

Muslim faith). Prisoners who purport to hold religious beliefs

simply to gain additional rights will not be entitled to

accommodation, because these sham beliefs are, by

definition, not sincerely held.

Moreover, section 3 simply does not require

accommodations giving religious prisoners such “superior

rights” that their prospect would induce non-practitioners to

adopt religious beliefs. Even under the strict-scrutiny

standard, it is unlikely that prison officials would be required

to provide accommodations only to religious prisoners where

those accommodations would be highly desirable to non-

religious prisoners as well, or where the accommodations

would unduly burden non-adherents.

Applying a strict-scrutiny standard, this Court has refused

to require accommodations that are likely to be in wide

demand. For example, in United States v. Lee, 455 U.S. 252,

257-60 (1982), this Court refused to create religious-based

exemptions to paying social security taxes, because virtually

everyone would want such an exemption. Similarly, this

Court refused to create an exemption to mandatory military

service for religious-based objections to a particular war,

noting that such an exemption might “weaken the resolve of

those who otherwise would feel themselves bound to serve.”

Gillette, 401 U.S. at 459; cf’ TWA v. Hardison, 432 U.S. 63,

80 (1977) (under religious-accommodation requirement of

employment-discrimination law, private employer is not

required to bump more senior employee from employee’s

preferred shift to accommodate religious practices of another

employee). Other courts have reached similar results under

state or federal religious-freedom laws requiring strici

9

scrutiny. See, e.g., Larson v. Cooper, 90 P.3d 125, 132-33

(Alaska 2004) (refusing to create a religious exemption to

prison’s policy on contact visits under the state constitution

in part because other prisoners would inevitably demand

similar exemptions); State v. Balzer, 954 P.2d 931, 941 (Wash.

App. 1998) (refusing to create a religious exemption to

marijuana laws under the state constitution because doing

so would “encourage enlistment in those religions [that

mandate marijuana use] for the wrong reasons”); Hamilton

v. Schriro, 74 F.3d 1545, 1555 (8th Cir. 1996) (holding that

prisoner was not entitled to construction of a sweat lodge

under the federal Religious Freedom Restoration Act in part

because of the potential effect on other inmates).

Instead, the accommodations that section 3 requires are

by their nature likely to be of little value to anyone other

than sincerely religious adherents. For example, courts have

held that in the absence of other compelling interests such

as excessive cost, Jewish prisoners are entitled to kosher

meals. See McEachin v. McGuinnis, 357 F.3d 197, 203 &

n.7 (2d Cir. 2004) (citing cases on religious dietary rules in

prisons). As one commentator has noted, “[a]llowing Jewish

prisoners a special diet will not encourage kosher eating

(as long as the alternative meals are no better than the

standard fare).” Michael W. McConnell, Accommodation of

Religion, 60 Geo. Wash. L. Rev. 685, 701 (1992). Similarly,

in the absence of security concerns or other compelling

interests, section 3 might require a prison to allow access to

religious texts and objects because such access would be of

little value to nonbelievers. See, e.g., Sutton v. Rasheed, 323

F.3d 236, 253-58 (3d Cir. 2003) (holding that prisoners were

entitled to religious literature under the First Amendment).

10

The risk that inmates will adopt (or purport to adopt)

religious beliefs simply to obtain religious accommoda‘ions

that other inmates are receiving is therefore low. Properly

construed, section 3 merely allows those who hold sincere

religious beliefs to exercise those beliefs without interference

by the state. If section 3 has any effect at all of advarcing

religion, that effect is quite plainly secondary and due solely

to the autonomous choices of prisoners.

POINT II

SECTION 3 IS INTENDED TO BE APPLIED WITH

DEFERENCE TO THE CONSIDERED JUDGMENT

OF STATE PRISON OFFICIALS

In its response to the petition for a writ of certiorari,

Respondent State of Ohio stated that it had submitted in the

court below a “comprehensive record of the real-world effects

of RLUIPA in prisons.” Br. in Response to Petition for a

Writ of Cert. at 12. According to Ohio, RLUIPA imposes

burdens upon prison officials and inmates, “who must face

the security problems that result from RLUIPA’s imposition.”

Br. in Response to Petition for a Writ of Cert. at 12. To be

sure, the “real-world effects” of RLUIPA, and particularly

lower courts’ failure to defer to the considered judgment

of prison officials, are a concern for all states. Section

3, however, does not require prison officials to offer

accommodations that would compromise security, undermine

discipline, demand excessive use of scarce resources, OF

prejudice the rights of other inmates. Rather, it calls for

deference to the judgment of prison officials about these

matters.

11

The legislative history leaves no doubt that Congress

intended to limit section 3 in this manner. Section 3 is

patterned after the Religious Freedom Restoration Act

(RFRA). See 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000)

(statement of Rep. Canady); 146 Cong. Rec. $7774 (joint

statement of Sens: Hatch and Kennedy) (daily ed. July 27,

2000). RFRA, in turn, was intended to restore the standard

that this Court applied in prison litigation before O’Lone v.

Estate of Shabazz, 482 U.S. 342 (1987). See S. Rep. No.

103-111, at 10 (1993) (“The intent of the act is to restore

traditional protection afforded to prisoners’ claims prior to

O’Lone, not to impose a more rigorous standard than the

one that was applied.”), reprinted in 1993 U.S.C.C.A.N.

1892, 1899; see also 139 Cong. Rec. $14362-65 (daily ed.

Oct. 26, 1993) (statement of Sen. Hatch). The pre-O Lone

standard was a form of strict scrutiny that gave strong

deference to the judgment of state prison officials. See Turner

v. Safley, 482 U.S. 78, 86-89 (1987) (surveying the Court’s

pre-1987 jurisprudence).

.

Congress explicitly endorsed this standard in enacting

RLUIPA:

The committee expects that courts will continue

the tradition of giving due deference to the

experience and expertise of prison and jail

administrators in establishing necessary

regulations and procedures to maintain good

order, security and discipline, consistent with

consideration of costs and limited resources.

146 Cong. Rec. at $7775 (joint statement of Sens. Hatch and

Kennedy). The legislative history of RFRA similarly

emphasizes the need for deference in the unique context of

12

prison management. Congress expressly disclaimed any

standard that “would exacerbate the difficult and complex

challenges of operating the Nation’s prisons and jails in a

safe and secure manner.” S. Rep. No. 103-111, at 10, 1993

U.S.C.C.A.N. at 1899-1900. It intended that the courts apply

the statutory standard in a “flexible” manner that is “sensitive

to the demands of prison management.” /d. at 11, 1993

U.S.C.C.A.N. at 1900-01. See generally Lawson v. Singletary,

85 F.3d 502, 508-11 (11th Cir. 1996) (examining legislative

history of RFRA and concluding that deferential pre-O ‘Lone

standard governs).

Deference is required at both stages of the analysis.

First, the courts must defer to prison officials’ judgment about

what state interests are “compelling” in the prison setting.

Thus, for example, security and discipline are both well-

established compelling interests. See, e.g., Bell v. Wolfish,

441 U.S. 520, 546 (1979) (holding that “maintaining

institutional security and preserving internal order and

discipline are essential goals” in the prison setting); see also

139 Cong. Rec. $14364 (daily ed. Oct. 26, 1993) (statement

of Sen. Hatch) (noting that “order, safety, and discipline”

are compelling government interests in prison context); 139

Cong. Rec. $14466 (daily ed. Oct. 27, 1993) (statement of

Sen. Hatfield) (“[a]ctivities that are dangerous or jeopardize

discipline would still be subject to restriction under the

compelling interest standard”).

Second, courts must defer to the prison officials’

judgment about the least restrictive means to serve these

interests. See Bell, 441 U.S. at 547 (“Prison administrators

. Should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline

13

and to maintain institutional security.”). Thus, prison officials

are not required to show with “certainty” that the policy is

necessary to avoid some adverse outcome. Procunier v.

Martinez, 416 U.S. 396, 414 (1974). Indeed, a prison’s policy

may pass the test of strict scrutiny even if there are, at least in

theory, other “reasonable” ways of dealing with a situation.

Bell, 441 U.S. at 554. Unless there is “substantial evidence in

the record” that the officials have “exaggerated their response,”

the courts should defer to the prison administrators’ decision.

Id. at 548.

Importantly, the judgment about whether to provide a

particular accommodation is made in the first instance by state

prison officials. A prisoner may not sue under RLUIPA without

first exhausting all available administrative remedies. 42 U.S.C.

§ 1997e(a), 2000cc-2(e); see Porter v. Nussle, 534 U.S. 516,

520 (2002). Thus, courts considering a suit demanding a

religious accommodation will always have the benefit of the

state prison officials’ judgment, and can defer accordingly.

Consistent with the principle of deference, RLUIPA also allows

the state to exercise its discretion in choosing the method of

accommodating a religious practice. 42 U.S.C. § 2000cc-3(e).’

2. Section 2000cc-3(e) provides:

(e) Governmental discretion in alleviating burdens on

religious exercise.

A government may avoid the preemptive force of any

provision of this Act 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.

14

As Congress intended, the cases in which prisoners

should prevail under section 3 are those challenging

“inadequately formulated prison regulations and policies

grounded on mere speculation, exaggerated fears, or post-

hoc rationalizations.” 146 Cong. Rec. at $7775 (joint

statement of Sens. Hatch and Kennedy). To the extent that

RLUIPA increases the state’s obligation to accommodate

religious practices, it does so with an eye towards preserving

the traditional deference to the judgment of state prison

officials.

A recent example from New York illustrates the role of

deference in RLUIPA litigation. See Marria v. Broaddus,

No. 97 civ 8297, 2004 U.S. Dist. LEXIS 14829 (S.D.N.Y.

July 30, 2004), appeal docketed, No. 04-5538-pr (2d Cir.

Oct. 19, 2004). Marria concerned an adherent of the Nation

of Gods and Earths, a group commonly referred to as

“Five Percenters.” /d. at *1. After determining in the face of

conflicting evidence that the Nation of Gods and Earths

constituted a genuine religion, the court remanded the matter

to the New York State Department of Correctional Services

and deferred granting the relief requested by the inmate.

Id. at *1-2. The court did so because it recognized that the

Nation of Gods and Earths might be both a religion and a

gang, in which case accommodation would implicate prison

security. /d. at *5. In keeping with the tradition of deference

and comity, the court asked the prison to determine, in the

first instance, whether and how to accommodate the group’s

religious practices. Jd. at *2-3 & n.2.

When the state prison officials submitted proposed

protocols allowing adherents of the Nation of Gods and

Earths access to certain literature and one-on-one meetings

between inmates and outside volunteers affiliated with the

15

group but not allowing any group meetings or services, the

court approved the protocols in their entirety. Jd. at *3-4.

In deferring to the prison administrators’ judgment, the court

noted that they had demonstrated that the requested group

meetings would pose serious security and discipline

problems, as well as financial hardship. /d. at *5-7. The court

thus appropriately deferred to the officials’ judgment about

which practices could be accommodated and which could

not, consistently with the prison’s security interests and

limited resources.

To be sure, some courts may fail to give the appropriate

level of deference intended by Congress, making it more

difficult for state prison administrators to run safe and

efficient facilities. But that by itself does not make the statute

constitutionally infirm. In any event, Ohio’s primary concern

seems not to be that the courts are requiring it to provide

accommodations that compromise security. Rather, the

“comprehensive record of the real-world effects of RLUIPA

in prisons” that Ohio has compiled principally discusses the

administrative resources expended in responding to prisoners’

requests for accommodation and especially the ensuing

litigation. E.g., Aff. of David Schwartz, Religious Services

Administrator for the South Region of the Ohio Department

of Rehabilitation and Correction (Oct. 19, 2000) 44 3-4

(noting the increase in time spent responding to litigation

and consulting staff on legal matters); Mem. from Kim

Tucker, Deputy General Counsel, to Robert A. Butterworth,

Attorney General of the State of Florida (July 19, 1996)

(summarizing the preliminary results of a national survey

and noting the increased cost in evaluating and litigating

claims).

16

While frivolous prisoner litigation certainly burdens the

state’s administration of its prison system, it is not a basis

for striking down section 3 on its face. Notably, suits under

RLUIPA are subject to the Prisoner Litigation Reform Act

of 1995 (PLRA), Pub. L. No. 104-134, tit. VIII, 110 Stat.

1321. See 42 U.S.C. § 2000cc-2(e) (stating that nothing in

RLUIPA shall be construed as amending or repealing the

PLRA). Among other things, the PLRA requires mandatory

exhaustion of administrative remedies, 42 U.S.C. § 1997e(a);

requires a prisoner to pay the full filing fee for a lawsuit or

appeal, 28 U.S.C. § 1915(b); limits the availability of money

damages, 42 U.S.C. § 1997e(e); requires that prospective

relief be “narrowly drawn, extend[] no further than necessary

to correct the violation of the Federal right, and [be] the least

intrusive means necessary,” giving “substantial weight to

any adverse impact on public safety or the operation of a

criminal justice system caused by the relief,” 18 U.S.C.

§ 3626(a)(1)(A); and allows a court to revoke a prisoner’s

good-time credit for presenting false information to the court,

28 U.S.C. § 1932. No one contends that these provisions have

eliminated the problem of frivolous prisoner lawsuits. But

this problem is best addressed through legislation like the

PLRA, not by reading the Establishment Clause so broadly

as to prevent governments from accommodating genuine

religious practices.

17

CONCLUSION

For the foregoing reasons, Amici States respectfully

request that this Court reverse the decision of the United

States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

CurisTINE O. GREGOIRE Eviot Spmrzer

Attorney General of Washington Attorney General of the

1125 Washington Street SE State of New York

P.O. Box 40100 CarrTun J. HALLIGAN*

Olympia, WA 98504-0100 Solicitor General

(360) 753-6200 DanieL SMIRLOCK

Deputy Solicitor General

JEAN LIN

BENJAMIN N. GUTMAN

Assistant Solicitors General

120 Broadway, 25th Floor

New York, NY 10271

(212) 416-8020

Attorneys for Amici Curiae

* Counsel of Record