# Amicus Curiae Brief — Cutter v. Wilkinson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A20

## Record

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

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0020%3A20. Public record. Not legal advice.