Amicus Curiae Brief — Cutter v. Wilkinson

~~

No. 03-9877

Jn The Se

Supreme Court of the United 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

Y

BRIEF OF THE COMMONWEALTH OF

VIRGINIA AND SEVEN OTHER STATES,

AND ONE TERRITORY AS AMICI CURIAE

IN SUPPORT OF THE RESPONDENTS

°

JUDITH WILLIAMS JAGDMANN OFFICE OF THE ATTORNEY

Attorney General of Virginia GENERAL

. 900 East Main Street

W pry E. THRO Richmond, Virginia 23219

State Solicitor General

Counsel of Record (804) 786-2436

(804) 371-0200 (facsimile)

MAUREEN RILEY MATSEN

Counsel for the

Deputy Attorney General Commonwealth of Virginia

MATTHEW M. Coss

CARLA R. COLLINS

Eric A. GREGORY

JOEL C. HOPPE

COURTNEY M. MALVEAUX

VALERIE L. MYERS

A. CAMERON O’BRION

RONALD N. REGNERY

D. MATHIAS ROUSSY, JR.

WILLIAM R. SIEVERS

Associate State Solicitors General

February 11, 2005

[Additional Counsel Listed On Inside Of Cover]

COCKLE LAW BRIEF PRINTIN «© O (800) 225-6904

OR CALL COLLECT (402) 342-2831

1) RENKES

Attorney General

STATE OF ALASKA

PO) Box 110300

Diamond Courthouse

Juneau, Alaska 99811

WNT) 405-4600

'sREGG

LawRENCE G WASDEN

ldaho Attorney General

Po) Box S34720

Boise, [Idaho 83720

YON) 334-4525

THOMAS J. MILLER

Attorney General

STATE OF LOWA

Hoover State Office Bldg..

1305 E. Walnut

Des Moines. Iowa 50319

515) 281-5165

JON BRUNING

Attorney General of the

State of Nebraska

NEBRASKA DEPARTMENT OF

JUSTICE

P ©) Box 98920

Lincoln. Nebraska 68509

102 471-2644

WAYNE STENEHJEM

Attorney General of

North Dakota

6500 FE. Boulevard Ave.

Bismarck, North Dakota

5R5O05

W_A. DREW EDMONDSON

Attorney General of

Oklahoma

2300 N. Lincoln Boulevard,

Suite 112

Oklahoma City, Oklahoma

73105

(405) 521-3921

ALVA A. SWAN

Acting Attorney General of

the Virgin Islands

GGERS Building, 2d Floor

St. Thomas, Virgin Islands

OORO2

(340) 774-5666

DARRELL V. MCGRAW, JR.

Attorney General of

West Virginia

OFFICE OF THE ATTORNEY

GENERAL

State Capitol, Room 26-E

Charleston, West Virginia

25305

304) 558-2021

QUESTION PRESENTED

Are the provisions of the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc through

§ 2000cc-5, that require the States, as a condition of

receiving federal funds, to implement a particular reli-

gious accommodation in state prisons, constitutional?

TABLE OF CONTENTS

Page

i, ee i

TABLES OF AUTHORS EM cnccccccescccscsescsccscsesssccsceeseoeses iv

ee er I eicietincniedaciainsnsndcantadenisedenesnntaniane 1

SUMMARY OF ARGUMENT ..................::ccceeseeeeseeeeees 4

I scicntteeciensnsiieceeiinindanial iaiahaasasdiiaiitiiaiaiinnies 6

I. RLUIPA VIOLATES THE FEDERALISM PUR-

POSE OF THE ESTABLISHMENT CLAUSE....... 6

A. The Federalism Purpose of the Establish-

ment Clause Prohibits the National Gov-

ernment from Interfering with the States’

Sovereign Authority to Make Religious

SPT cs snieniistieecsctinaaniaisuiniuaisindaiaeieaaiipaananebeiiiaiamiamiis 6

B. By Enacting RLUIPA, Congress Has Inter-

fered with the States’ Sovereign Authority

to Make Religious Policy........................0000 13

II. BY ENACTING RLUIPA, CONGRESS HAS

EXCEEDED ITS CONSTITUTIONAL AU-

IEEE Ts ceccinsssssctieviesieneneietiabdiasinashbannadleatadnimitinieaainiae 15

A. Congress May Not Use Its Article I Powers

to Circumvent a Constitutional Holding of

Ey ree iiccsinntenitinnineeineneneniitendedininadataes 15

B. By Enacting RLUIPA, Congress Has Ex-

ceeded Its Authority Under the Commerce

eR ccacnsesnntsnccnnniuitenncsntadsnmsiuiniiaiuniiigaiatitieas 17

1. Congress May Not Use the Commerce

Power to Regulate Activities That Have

Little or No Impact on Interstate Com-

RID ccacitvivictensesaessmeniinniemeniinniantin 18

TABLE OF CONTENTS -— Continued

Page

2. Congress May Not Regulate the States

When States Act as Sovereigns.............

C. By Enacting RLUIPA, Congress Has Ex-

ceeded Its Authority Under the Spending

1. The Spending Clause May Not Be Used

To Undermine the States’ Sovereignty....

2. The Conditions Imposed by RLUIPA

Are Unrelated to Any Purpose for

Which Federal Funds Are Provided to

State Correctional Systems...................

3. RLUIPA Is Unconstitutionally Coercive ..

III. THE SIXTH CIRCUITS INTERPRETATION

OF THE ESTABLISHMENT CLAUSE SHOULD

SE CREEP cceccensccsesessesssessorninisenesveseiinniinneiee

IIIT vevctnecessrsnccsensssesenscenteenesinenmenensoenserennsienen

19

20

21

iv

TABLE OF AUTHORITIES

Page

CASES

Abington Sch. Dist. v. Schempp,

Sy ID icnnnnnsndintoniansiintacninetensmnasninianemmcantia 10

Alden v. Maine,

Se ee eI cxiinnsesarensieonmiiceniniiciiansnnveinnmnnsanninastanenitia 9

Barron v. Mayor of Baltimore,

BR ee 9

Beauharnais v. Illinois,

Be En ea crssioneensopionieenndtencnninindinndanatinbenannidaneianianient 6

Brown v. Gilmore,

258 F.3d 265 (4th Cir.),

cert. denied, 534 U.S. 996 (2001)...........ceesesssseseeeeeeeees 28

California v. United States,

104 F.3d 1086 (Sth Cir. 1997) ................ccccccscsssssssees 25, 26

Cantwell v. Connecticut,

Se SY SE I ccnccncninennsieninnsiindiantncetenidaniepmneieidinl 9

Church of the Lukumi Babalu Aye, Inc. v.

' City of Hialeah,

Ss Ge IIIT irccccecssncicucmenssstedeheneseneenpneiadennniients 16

City of Boerne v. Flores,

EE passim

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd.,

Be ee ID ctnsericmsnnnnsnnntincetinsennieninsiinns 17, 25

Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos,

SE Cs Ce CID crntetincecnedensinpinsemeneniniinniesnennncapeti 3, 28

TABLE OF AUTHORITIES — Continued

Page

Cutter v. Wilkinson,

349 F.3d 257 (6th Cir. 2003),

cert. granted, 125 S. Ct. 308 (2004)................. 3, 4, 27, 28

Elk Grove Unified Sch. Dist. v. Newdow,

is ea Se TIE iccuivinsinicsccsinsietiiasiiciceitiasidtamninsinatiiniitianpinniininia 7

Employment Div. v. Smith, .

Se ey IE ciitiinsntiniticnsesinentnsesserenuaiumiesiandl passim

Everson v. Bd. of Educ.,

Oe EE vinidecncseniccnsetneinennissiateintatditdnianiiiaiinntninnasibaibian 9

Federal Maritime Comm’n v. South Carolina

State Ports Auth.,

Ns SEE TIE sicrsicciiisssaniiiinninsdiiusnsadedianapeaiainiienitiiiiiat 8

Frost & Frost Trucking Co. v. Railroad Comm’n,

Se ee CTI ctidscihicccicsiseteeiinitiniipilsphaitlettaipeanbeneciaminndiiea 22

Gerhardt v. Lazaroff,

221 F. Supp. 2d 827 (S.D. Ohio 2002) .0.... eee 14

Gratz v. Bollinger,

IIE, SITTIN nncenpctiseelaittisnhaslanisiininitioninssieasladedaaaaaliind 24

Gregory v. Ashcroft,

Se a CPI sn nciisnisticiiipsecdennhinsiunnnidaisagiliiiasiiaisdiaianihinaiiiadl 9

Grutter v. Bollinger,

ee ee SETI sischacciteichinceieniacibciéteicnniadshdibiiiapachieieiiiiadiipalibieidel 24

Hines v. South Carolina Dep't of Corr.,

148 F.3d 353 (4th Cir. 1998)...............sssscssssssssssseeseess 14

Johnson v. Martin,

223 F. Supp. 2d 820 (W.D. Mich. 2002) ................cceeeeeee 14

Kansas v. United States,

214 F.3d 1196 (10th Cir, 2000) ........cccccccccccccccccccccccscocees 25

TABLE OF AUTHORITIES — Continued

Page

Lee v. Weisman,

I a ii a clad 10

Litman v. George Mason Univ.,

ee ee te EE BD cnnccncecstcctncnittncsesentnsccnineniante 22

Locke v. Davey,

I, I italia 9,10, 12

Madison v. Riter,

240 F. Supp. 2d 566 (W.D. Va. 2003) (Madison J)..... 4, 27

Madison v. Riter,

355 F.3d 310 (4th Cir. 2003) (Madison ID),

petition for cert. filed sub. nom. Bass v. Madison

(April 6, 2004) (No. 03-1404) 0.0... eeeesseeeeeeees passim

Marbury v. Madison,

is ee I TI I ccccinsitcccctipotincctetncdecnssenmuasietiaeds 2

Marria v. Broaddus,

200 F. Supp. 2d 280 (S.D.N.Y. 2002) .............. eee eeeeeeees 14

Massachusetts v. United States,

I 24

McCulloch v. Maryland,

Be ee Oe ed GD titeniccctctennttadenccnnsncnnnnsicannade 2

Nevada v. Skinner,

I I Cs cnicrecsincescintecdiliiiedehcitiiiaenl 26

New York v. United States,

I: i i 8, 20, 23, 24

Ochs v. Thalacker,

90 F.3d 293 (8th Cir. 1996) inicincaitnlaid ata taaiaalaliaitiiails 15

Oklahoma v. Schweiker,

ee ee ils TI HID cecittciescincscncininctenecasdimenisibainiais 26

Vii

TABLE OF AUTHORITIES -— Continued

Page

O’Lone v. Estate of Shabazz,

I i ta iaaticaeiaciaealaiiliiamaels 14, 16, 24

Preiser v. Rodriguez,

I lalla accel 21

Printz v. United States,

I i rte cial alarm aailiaees 9,19

Reno v. Condon,

I lalla lnnels 19

Roth v. United States,

| EN Ee ane EEE aT nt 7

Seminole Tribe v. Florida,

I I Aa a sas casinos arrelenaecnicainnsineanididdmamniaannenel 17

Sherbert v. Verner, :

I aaa terial 16

South Dakota v. Dole,

I I i iisicatieciicietiinenedi 23, 24, 25, 26, 27

Stefanow v. McFadden,

108 F.3d 2466 (Gtin Cir. 1906) ......ccccccccccscccccccesescccsscessees 15

Steward Machine Co. v. Davis,

I a a el 25

Texas Monthly, Inc. v. Bullock,

GI Be I nsinnscceicceiiesetsinsiecstaddiiinaamiiiaimdeipbnaianeiaiai 3

Tennessee v. Lane,

a se RF OD ccctcnccccerctitevinnintscsoniitnns a islamaiiiuiesididas 13

Turner v. Safley,

I, STD siicinninindiieneniinesiiintaiicmenenietiidsidndaiiiin 14, 15

U.S. Term Limits v. Thornton,

Be Ss PIII ccccnentensccctccacnstesceniniegpnebinnnidinte’ raw 8

TABLE OF AUTHORITIES — Continued

Page

United States v. Lee,

455 U.S. 252 (1962) ...............0000 silnineidaiabalieaiasbeniabiadiiaiaaiiadeiae 16

United States v. Lopez,

I iia aaa ciaciiainli 18, 19, 22, 23

United States v. Morrison,

I a 19, 22

Virginia Dep't of Educ. v. Riley,

106 F.3d 559 (4th Cir. 1997) (en banc)...................0000e 27

Walz v. Tax Comm'n,

ny SITE ccciintencsicnennnneiasinantetaness eee aes 28

West Virginia v. Dep’t of Health & Human Servs.,

ge ee 25

Wisconsin v. Yoder,

I eal 9

Witters v. Washington Dep't of Servs. for the Blind,

A i adidiiaiateiaeal 12

Zelman v. Simmons-Harris,

I lees 6, 12

Zobrest v. Catalina Foothills Sch. Dist.,

TESTER ea ene Naeem ea ome 12

Zorach v. Clauson,

I a alana 28

CONSTITUTIONAL PROVISIONS

ae passim

eee Ch: IL, Ti, Sh ts OE Bi eeccceseccnsiicsennennnncenenssicintainantetibintl passim

| ET ITT passim

ix

TABLE OF AUTHORITIES — Continued

Page

UB, Commh. emma, TET, © B acececccscocssscsscesessssscssscosenng passim

8 eee 2,13

STATUTES

42 U.S.C. §§ 2000bb-1 through bb-4 ..0........ceeeceeeseeeeeenees 16

42 U.S.C. §§ 2000cc through 2000cc-5..............:00000++2 passim

GD TETAS. 6 BE ceccscscssccnsencsenscesescnsnensapesenmavinnesnssnveies 26

Go TEA. 6 ID cccncceccccsnccnnscensneninencescnnssennreennesetin 13

4B UBC. § BBR BID) nccccccccscevcscecccccesoscosssvescoseseses 21, 26

4B UB.G. § BBB ae ID) oncccccccccveccscescesccesesccovcccesssscssoses 17

Gp AAG, © Be iccncesccccesosesccscssccsessnnsencssinnssssscasesneis 26

Gp a Bi crcrenetccnsnerianictesennesnntnnnannmnnnnsin 24

By Be Oe rcetencsnsnctcnscteseetnnmmensnsnmnnnuuias 26

4B UBD. 6 BRRBR- SIRI) cccccscccesssccesccnsscsesseccsssvsencenssnoseanes 26

4B UB. SRBSCE-AENA) .2crccccccsesscesssesscssccccccccsccccsssssceseees 26

THE FEDERALIST

The Federalist No. 28 (Alexander Hamilton)..................++++ 8

The Federalist No. 39 (James Madison) ...............::s0:+e+00+0 8

The Federalist No. 51 (James Madison) ..............:::0s:ee0+++ 8

The Federalist No. 81 (Alexander Hamilton)..................0++ 8

x

TABLE OF AUTHORITIES - Continued

OTHER AUTHORITIES

Akhil Reed Amar,

The Bill of Rights: Creation and Reconstruction

CIID cxeensnsnsesoussssnessonensgunseoeeneveeevennvessnesseonsnesunecepuooves

Lynn A. Baker,

Conditional Federal Spending and States’ Rights,

FRR Ree eee eran

Lynn A. Baker,

The Revival of States’ Rights: A Progress Report

and a Proposal, 22 Harv. J.L. & Pub. Pol’y 95

UEPEIED wesnevscenseneseneneesessnonetaseenincessorenenentecscetsesntensoosecs

Phillip Hamburger,

Separation of Church and State (2003) ..................

James Iredell,

Debate in North Carolina Ratifying Convention

(June 30, 1788) in 5 The Founders’ Constitution

90 (Phillip B. Kurland & Ralph Lerner, eds. 1987)...

1 Alfred H. Kelly, Winfred A. Harbison, & Herman Belz,

The American Constitution: Its Origins and

Development (7th ed. 1991)....................cssesssssssesseees

Leonard W. Levy,

The Establishment Clause (1986) .............ccccceccceeeees

James Madison,

General Defense of the Constitution (June 12, 1788),

reprinted in 11 Papers of James Madison 129

(Robert A. Ruland, et al., eds. 1977) ...........ccscceceeeees

Jed Rubenfeld,

Antidisestablishmentarianism: Why RFRA Really

Was Unconstitutional, 95 Mich. L. Rev. 2347 (1997) ..

Page

.7,15

xi

TABLE OF AUTHORITIES - Continued

Richard C. Schrager,

The Role of the Local in the Doctrine and

Discourse of Religious Liberty, 117 Harv. L. Rev.

TTT UI ciiicsictesinniedisianininmaiibhtassaesitanasteagseinmniiaenentibeazuitiint 12

Joseph Story,

Commentaries on the Constitution of the United

States

CRIED ccccccscencescvsreccesvsrsnsuvescesscsnsesnessuscososssnssnnnais 10

J. Harvie Wilkinson III,

Federalism for the Future, 74 S. Cal. L. Rev. 523

(2001)

1

INTEREST OF AMICI

The Commonwealth of Virginia and the States of Alaska,

Idaho, Iowa, Nebraska, North Dakota, Oklahoma, and West

Virginia as well as the Territory of the Virgin Islands

(“States”) operate state correctional systems which are subject

to the Religious Lanc Use and Instituiionalized Persons Act

(“RLUIPA”), 42 U.S.C. §§ 2000cce through 2000cc-5. Like the

Respondents, the States believe that RLUIPA is unconstitu-

tional in the context of state prisons.’ Unlike the Respondents,

the States also believe that the United States Court of Appeals

for the Sixth Circuit’s Establishment Clause analysis is

fundamentally flawed. Thus, the States urge this Court to

invalidate RLUIPA in the state prison context, but to utilize

different grounds than those employed by the Sixth C.rcuit

and to repudiate explicitly the Sixth Circuit’s Establishment

Clause analysis. In taking these positions, the States seek to

vindicate three distinct interests.

1. First, the States have an interest in making religious

policy, subject only to the limitations imposed by the

Constitution, without interference from the National

Government. As originally envisioned by the Framers, the

Establishment Clause had both a Libertarian Purpose and

a Federalism Purpose. The Libertarian Purpose protected

the People from the National Government. The Federalism

Purpose ensured that the States would be able to exercise

their sovereign authority to make religious policy subject

only to the restriction imposed by their own State Consti-

tutions. Although the adoption of the Fourteenth Amend-

ment and resulting incorporation of the Religion Clauses

severely limited the sovereig:. authority of the States to

* RLUPA has two parts. The first part, which is not at issue in this

case, requircs that religious organizations be given preferential treatment

with respect to local planning and zoning laws. See 42 U.S.C. § 2000cc. The

States take no position on the constitutionality of this portion of RLUIPA.

2

make religious policy, these developments did not wholly

abolish the States’ authority. Nor did they alter the Feder-

alism Purpose of the Establishment Clause. As a result,

the Establishment Clause continues to limit the power of

the National Government. By enacting RLUIPA, which

requires the States to accommodate religion in their state

prisons in a manner not required by the Constitution,

Congress has violated the Federalism Purpose of the

Establishment Clause.

2. Second, the States have an interest in insuring that

the National Government remains one of enumerated,

hence limited, powers. See McCulloch v. Maryland, 17 US.

(4 Wheat.) 316, 405 (1819). Indeed, “that those limits may

not be mistaken, or forgotten, the constitution is written.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). In

enacting RLUIPA, Congress has sought to use the Article I

Spending Clause, U.S. Const. art. I, § 8, cl. 1, and Com-

merce Clause, U.S. Const. art. I, §8, cl. 3, powers to

circumvent this Court’s holding in Employment Division v.

Smith, 494 U.S. 872, 890 (1990). Because Congress cannot

use the Fourteenth Amendment enforcement power, U.S.

Const. amend XIV, § 5, to circumvent Smith, see City of

Boerne v. Flores, 521 U.S. 507, 532-36 (1997), it ought not

be able to use the Article I powers to circumvent Smith.

Moreover, even if Congress were not attempting to cir-

cumvent a constitutional decision of this Court, Congress’

Article I Commerce and Spending Clause powers do not

allow interference with the States’ sovereign authority to

define the terms and conditions of punishment for their

criminals, subject only to the dictates of the Constitution.

3. Third, the States have an interest in being able to lift

burdens imposed by the States on the free exercise of

religion without also being required to lift similar burdens

3

on the exercise of other non-religious rights.’ Indeed, this

Court has recognized that the States may do so without

violating the Establishment Clause. See Texas Monthly,

Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) (“[Wle in no way

suggest that all benefits conferred exclusively upon

religious groups or upon individuals on account of their

religious beliefs are forbidden by the Establishment

Clause unless they are mandated by the Free Exercise

Clause.”) (emphasis in original); Corporation of the Presid-

ing Bishop of the Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327, 334 (1987) (“This Court has

long recognized that the government may (and sometimes

must) accommodate religious practices and that it may do

so without violating the Establishment Clause. It is well

established, too, that the limits of permissible state

accommodation to religion are by no means co-extensive

with the noninterference mandated by the Free Exercise

Clause.”) (citations omitted). Yet, the Sixth Circuit invali-

dated RLUIPA “because it favors religious rights over

other fundamental rights without any showing that

religious rights are at any greater risk of deprivation.”

Cutter v. Wilkinson, 349 F.3d 257, 262 (6th Cir. 2003), cert.

granted, 125 S. Ct. 308 (2004). Accepting the Sixth Cir-

cuit’s rationale would “work a profeund change in [this]

Court’s Establishment Clause jurisprudence and in the

ability of Congress [and the States] to facilitate the free

exercise of religion in this country.” Madison v. Riter, 355

* In this respect, the interest of the States is remarkably similar to

the interests articulated by New York and Washington. See Brief of New

York & Washington as Amici Curiae. However, while the States agree

with New York and Washington about the importance of government

beirg able to lift burdens on the exercise of religious rights, the States

disagree with New York and Washington on the issue of the constitu-

tionality of RLUIPA. New York and Washington urge this Court to

uphold RLUIPA. The States ask this Court to find that RLUIPA is

unconstitutional as it applies to state prisons.

4

F.3d 310, 320 (4th Cir. 2003) (Madison IID), petition for cert.

filed sub. nom. Bass v. Madison (April 6, 2004) (No. 03-

1404).* Thus, the States urge this Court to reject the Sixth

Circuit’s rationale.

SUMMARY OF ARGUMENT

The States contend that RLUIPA is unconstitutional

as it applies to state prisons, but that the reasoning of the

Sixth Circvit is fundamentally flawed. The argument in

support of this contention is relatively straightforward.

1. RLUIPA violates the Federalism Purpose of the

Establishment Clause. The Federalism Purpose of the

Establishment Clause precludes the National Government

from interfering with the States’ sovereign authority to

make religious policy subject only to the limitations

imposed by the Constitution. Within the “play in the

joints” between what the Establishment Clause prohibits

and the Free Exercise requires, the States have broad

discretion to make religious policy as they see fit. RLUIPA

interferes with this discretion by imposing a particular

prison religious accommodation policy. Thus, RLUIPA, as

applied to state prisons, violates the Federalism Purpose

of the Establishment Clause.

2. By enacting RLUIPA, Congress exceeded its constitu-

tional authority. This is so for three reasons.

a. First, Congress may not use its Article I powers to

circumvent a constitutional holding of this Court. RLUIPA

represents Congress’ latest attempt to circumvent this

* In Madison II, the Fourth Circuit explicitly rejected the reason-

ing utilized by the Sixth Circuit in Cutter and by the district court in

Madison v. Riter, 240 F. Supp. 2d 566, 577 (W.D. Va. 2003) (Madison I).

In concluding that RLUIPA was unconstitutional, the Sixth Circuit

relied heavily on Madison I. See Cutter, 349 F.3d at 262.

5

Court’s constitutional holding in Smith. If Congress cannot

circumvent Smith using the Fourteenth Amendment

enforcement power, Boerne, 521 U.S. at 532-36, then

Congress cannot circumvent Smith using its ordinary

Article I powers.

b. Second, by enacting RLUIPA, Congress has exceeded

its authority under the Commerce Clause. Quite simply,

Congress may not use the commerce power to regulate

activities that have little or no impact on interstate com-

merce. Moreover, Congress may not regulate the States

when the States act as sovereigns.

c. Third, by enacting RLUIPA, Congress has exceeded its

authority under the Spending Clause. Congress may not

use the Spending Clause to undermine the States’ sover-

eign authority. Moreover, even if Congress generally may

use the Spending Clause to undermine the States’ sover-

eign authority, RLUIPA is unconstitutional because the

requirement to adopt a prison religious accommodation

policy is unrelated to any purpose for which federal funds

are appropriated. Furthermore, even if the prison religious

accommodation policy is related to the purpose for which

federal funds are appropriated, RLUIPA is unconstitution-

ally coercive. Congress may not force the States to choose

between forfeiting all federal funds and adopting a par-

ticular prison religious accommodation policy.

3. The Sixth Circuit’s interpretation of the Establish-

ment Clause must be rejected. The Sixth Circuit held that

government may not lift the burdens on religious rights

unless it also lifts the burdens on non-religious rights.

This rationale is flawed for three reasons. First, it ignores

this Court’s precedents. Second, it ignores the Constitu-

tion’s text. Third, it casts serious doubts on the validity of

many laws and policies.

6

ARGUMENT

I. RLUIPA VIOLATES THE FEDERALISM PUR-

POSE OF THE ESTABLISHMENT CLAUSE.

A. The Federalism Purpose of the Establishment

Clause Prohibits the National Government

from Interfering with the States’ Sovereign

Authority to Make Religious Policy.

The Establishment Clause has two distinct purposes.

First, it has a Libertarian Purpose, which limits the power

of the National Government and the States with regard to

the People. The Libertarian Purpose of the Establishment

Clause mandates “a freedom from laws instituting, sup-

porting, or otherwise establishing religion.” Phillip Ham-

burger, Separation of Church and State 2 (2003). Second,

and more significant for the present case, the Establish-

ment Clause has a Federalism Purpose that limits the

power of the National Government with regard to the

States.‘ The Federalism Purpose of the Establishment

‘ Of course, this means that the Establishment Clause applies

against the National Government in ways for which there is no

comparable application against the States. However, such a difference

in application is mandated by the historical purposes of the Establish-

ment Clause. See Zelman v. Simmons-Harris, 536 U.S. 639, 678-79

(2002) (Thomas, J., concurring) (“[I]n the context of the Establishment

Clause, it may well be that state action should be evaluated on different

terms than similar action by the Federal Government. ‘States, while

bound to observe strict neutrality, should be freer to experiment with

involvement [in religion] - on a neutral basis — than the Federal

Government.’ Thus, while the Federal Government may ‘make no law

respecting an establishment of religion,’ the States may pass laws that

include or touch on religious matters so long as these laws do not

impede free exercise rights or any other individual religious liberty

interest. By considering the particular religious liberty right alleged to

be invaded by a State, federal courts can strike a proper balance

between the demands of the Fourteenth Amendment on the one hand

and the federalism prerogatives of States on the other .. . . ”); Beauhar-

nais v. Illinois, 343 U.S. 250, 294 (1952) (Jackson, J., dissenting) (“[T]he

inappropriateness of a single standard for restricting State and Nation

(Continued on following page)

7

Clause mandates that the National Government may not

interfere with the States’ ability to make religious policy

subject only to the limitations imposed by the Constitu-

tion. See Elk Grove Unified Sch. Dist. v. Newdow, 124

S. Ct. 2301, 2330 (2004) (Thomas, J., concurring) (“The

text and history of the Establishment Clause strongly

suggest that it is a federalism provision intended to

prevent Congress from interfering with [the States’ reli-

gious policy choices].”). See also Jed Rubenfeld, Antidisest-

ablishmentarianism: Why RFRA Really Was Unconstitu-

tional, 95 Mich. L. Rev. 2347, 2357 (1997) (“Congress has

no power to dictate a position on religion ... for states. It

has no power to dictate church-state relations at all —

where “state” refers to the governments of the several

states. This is the core meaning of the Establishment

Clause.”).

Of course, the Federalism Purpose of the Establish-

ment Clause assumes that the States have the sovereign

authority to make religious policy and that the National

Government may not interfere with the States’ exercise of

that authority. Both of these assumptions require some

elaboration.

First, the States have the same sovereign authority to

make religious policy. The Constitution “split the atom of

sovereignty” by “establishing two orders of government,

each with its own direct relationship, its own privity, its

is indicated by the disparity between their functions and duties in

relation to those freedoms.”); Roth v. United States, 354 U.S. 476, 503-

04 (1957) (Harlan, J., dissenting) (“The Constitution differentiates

between those areas of human conduct subject to the regulation of the

States and those subject to the powers of the Federal Government. The

substantive powers of the two governments, in many instances, are

distinct. And in every case where we are called upon to balance the

interest in free expression against other interests, it seems to me

important that we should keep in the forefront the question of whether

those other interests are state or federal.”).

8

own set of mutual rights and obligations to the people who

sustain it and are governed by it.” U.S. Term Limits v.

Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concur-

ring). By dividing sovereignty between the National

Government and the States, the Constitution insured that

“a double security arises to the rights of the people. The

different governments will control each other, at the same

time that each will be controlled by itself.” The Federalist

No. 51, at 291 (James Madison) (Clinton Rossiter, ed.,

1961, 1999 prtg.).° This division of sovereignty between the

States and the National Government “is a defining feature

of our Nation’s constitutional blueprint,” Federal Maritime

Comm’n v. South Carolina State Ports Auth., 535 U.S. 748,

751 (2002), and “protects us from our own best intentions” by

preventing the concentration of “power in one location as an

expedient solution to the crisis of the day.” New York uv.

United States, 505 U.S. 144, 187 (1992). Thus, although the

States surrendered many of their sovereign powers to the

new Federal Government, “the States retain substantial

* Justice Kennedy’s idea of dividing power between dual sovereigns

is not new. As early as 1768, John Dickinson suggested that sovereignty

should be divided between the British Parliament and the Colonial

Legislatures. See 1 Alfred H. Kelly, Winfred A. Harbison, & Herman

Belz, The American Constitution: Its Origins and Development 46-49

(7th ed. 1991).

* See also The Federalist No. 28, at 149 (Alexander Hamilton)

(Clinton Rossiter, ed., 1961, 1999 prtg.) (“Power being almost always

the rival of power, the general government will at all times stand ready

to check the usurpations of the state governments, and these will have

the same disposition towards the general government.”); The Federalist

No. 39, at 213 (James Madison) (Clinton Rossiter, ed., 1961, 1999 prtg.)

(“[T]he proposed government cannot be deemed a national one; since its

jurisdiction extends to certain enumerated objects only, and leaves to

the several States a residuary and inviolable sovereignty over all other

objects.”) (emphasis original); The Federalist No. 81 at 455 (Alexander

Hamilton) (Clinton Rossiter, ed., 1961, 1999 prtg.) (“It is inherent in the

nature of sovereignty not to be amenable to the suit of an individual

without its consent.”) (emphasis original).

9

sovereign powers under our constitutional scheme, powers

with which Congress does not readily interfere.” Gregory v.

Ashcroft, 501 U.S. 452, 461 (1991).’

Among the sovereign powers retained by the States is

the authority to make religious policy. Originally, this

authority was quite broad. Pricr to the adoption of the

Fourteenth Amendment, U.S. Const. amend. XIV, § 1, the

Establishment Clause, like other provisions of the Bill of

Rights, limited only the National Government. See Barron

v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833).

Thus, the States were free to do whatever they wished

with respect to religion, subject only to the commands of

their own State Constitutions. See Locke v. Davey, 540

U.S. 712, 723 (2004) (describing the history of state consti-

tutional restrictions on the establishment of religion). Now

that the Fourteenth Amendment has made both the

Establishment and Free Exercise Clauses applicable to the

States, see Everson v. Bd. of Educ., 330 U.S. 1, 17-18

(1947) (incorporating the Establishment Clause); Cantwell

v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the

Free Exercise Clause), the States are restricted substan-

tially in their authority to make religious policy. See, e.g.,

Wisconsin v. Yoder, 406 U.S. 205, 214-15 (1972) (Free

’ The principle that the Constitution divides power between dual

sovereigns, the States and the Federal Government, is reflected

throughout the Constitution’s text, particularly in the Constitution’s

conferral upon Congress of not all governmental powers, but only

discrete, enumerated ones. See Printz v. United States, 521 U.S. 898,

919 (1997). Indeed, this division of sovereignty between the States and

the Federal Government is preserved and reinforced by the Constitu-

tion’s structure. See Alden v. Maine, 527 U.S. 706, 714-15 (1999). These

structural limitations, which are above and beyond the limitations

imposed by the text of the Bill of Rights or other constitutional provi-

sions, restrict the power of the Federal Government so as to preserve

the sovereignty of the States, and vice versa. See generally J. Harvie

Wilkinson III, Federalism for the Future, 74 S. Cal. L. Rev. 523 (2001).

10

Exercise Clause allows parents to refuse to send children

to school beyond the age of thirteen); Abington Sch. Dist. v.

Schempp, 374 U.S. 203, 225 (1963) (Establishment Clause

prohibits practice of daily reading from the Bible in the

public schools, even where students are allowed to absent

themsrives upon parental request). However, because

there is “play in the joints” between what the Establish-

ment Clause prohibits and the Free Exercise Clause

requires, Locke, 540 U.S. at 718-19, the States retain

substantial sovereign authority to make religious policy.”

Second, when the States exercise their sovereign

authority to make religious policy, the National Govern-

ment may not interfere.* See Lee v. Weisman, 505 U.S. 577,

641 (1992) (Scalia, J., joined by Rehnquist, C.J., White &

Thomas, JJ., dissenting) (noting that the Establishment

Clause was adopted, in part, “to protect state establish-

ments of religion from federal interference”). See also

Joseph Story, Commentaries on the Constitution of the

United States, § 1873 (1833) (The Establishment Clause

was intended “to exclude from the national government all

power to act upon the subject [of religion].”) (emphasis

added); Jd. (“[T]he whole power over the subject of religion

* Several examples demonstrate the point. A state university

professor may excuse a Jewish student from class for Yom Kippur while

refusing to excuse the student who wishes to attend a political protest. A

police department may allow a female officer, who is Jehovah’s Witness,

to wear a skirt while forcing other female officers to wear pants. A public

school cafeteria may offer Muslim students an alternative to pork while

refusing to offer alternative meals to those students who simply dislike

pork. In each instance, the government is not constitutionally required to

accommodate the religious exercise, see Smith, 494 U.S. at 879, but is not

constitutionally prohibited from doing so.

* Although the Federalism Purpose of the Establishment Clause

confirms this proposition, it would be equally true even if the Estab-

lishment Clause did not exist. Quite simply, the National Government

may not interfere with the States’ exercise of their sovereign authority.

11

is left exclusively to the state governments, to be acted

upon according to their own sense of justice, and the state

constitutions.”) (emphasis added). Moreover, this limita-

tion on the powers_of the National Government was

recognized widely at the time of the Framing. See James

Madison, General Defense of the Constitution (June 12,

1788), reprinted in 11 Papers of James Madison 129, 130

(Robert A. Ruland, et al., eds., 1977) (“There is not a

shadow of right in the general government to intermeddle

with religion. Its least interference with [religious policy of

the States] would be a most flagrant usurpation.”); James

Iredell, Debate in North Carolina Ratifying Convention

(June 30, 1788) in 5 The Founders’ Constitution 90 (Phillip

B. Kurland & Ralph Lerner, eds., 1987) (The National

Government “certainly [has] no authority to interfere in

the establishment of religion whatsoever... . ”). Indeed, as

one of America’s leading constitutional historians ob-

served:

[A] widespread understanding existed in the

states during the ratification controversy that

the new central government would have no

power whatever to legislate on the subject of re-

ligion. This by itself does not mean that any per-

son or state understood an establishment of

religion to mean government aid to any or all re-

ligions or churches. It meant rather that religion

as a subject of legislation was reserved exclu-

sively to the states.

Leonard W. Levy, The Establishment Clause 74 (1986).

Similarly, Professor Schrager has explained:

[T]he Religion Clause emerged from the Found-

ing Congress as local-protecting; the clauses were

specifically meant to prevent the national Con-

gress from legislating religious affairs while

leaving local regulations of religion not only un-

touched by, but also protected from, national en-

croachment.

12

Richard C. Schrager, The Role of the Local in the Doctrine

and Discourse of Religious Liberty, 117 Harv. L. Rev. 1810,

1823 (2004). See also Akhil Reed Amar, The Bill of Rights:

Creation and Reconstruction 32-42 (1998).

The principle that the National Government may not

interfere with the States’ sovereign authority to make

religious policy is demonstrated easily. Most obviously,

prior to the adoption of the Fourteenth Amendment, the

States had the sovereign authority, subject only to their

respective State Constitutions, to establish or disestablish

a church. Had Congress, in the exercise of its Article I

powers, attempted to force the States to establish or

disestablish a church, Congress would have acted uncon-

stitutionally. In other words, Congress could not have

passed a statute requiring the States to choose between

receiving federal funds and establishing or disestablishing

a church. Similarly, after the adoption of the Fourteenth

Amendment, the States have the sovereign authority to

choose to fund indirectly religious activity. Although the

Establishment Clause does not prohibit the indirect

funding of religion, see Zelman, 536 U.S. at 652 (2002)

(holding that school choice vouchers may be used at

private religious schools); Zobrest v. Catalina Foothills

Sch. Dist., 509 U.S. 1, 13-14 (1993) (holding that a dis-

abled student at private religious school could receive

special education services); Witters v. Washington Dep't of

Servs. for the Blind, 474 U.S. 481, 487 (1986) (holding that

State could provide funds for the education of blind stu-

dent studying for the ministry), the Free Exercise Clause

does not require that the States indirectly fund religious

education or activity. See Locke, 540 U.S. at 720-25. If

Congress, in the exercise of its Article I powers, attempts

to force the States to fund or not to fund indirectly reli-

gious activity, then Congress acts unconstitutionally. In

other words, Congress could not pass a statute requiring

the States to choose between receiving federal funds and

13

allowing religious schools to participate in a school choice

program.”

B. By Enacting RLUIPA, Congress Has Inter-

fered with the States’ Sovereign Authority

~ to Make Religious Policy.

RLUIPA interferes with the States’ sovereign author-

ity to enact religious policy within the zone between what

the Establishment Clause prohibits and what the Free

Exercise Clause requires. Specifically, RLUIPA mandates

that whenever the States’ policies of general applicability

impose a “substantial burden” on religion, the State must

accommodate the religious exercise unless it can demon-

strate that its interests are compelling and that its inter-

ests cannot be achieved through less intrusive means. 42

U.S.C. § 2000cc-1(a). To illustrate, suppose that a prison

has a policy that inmates may not wear hats or other head

coverings because prisoners might use them to hide

weapons or other contraband. Although the policy is one of

general applicability, a Sikh prisoner says that the policy

violates his Free Exercise rights because his religious

* In some extraordinary circumstances, Congress may be able to

dictate how the States exercise their discretion with respect to religion.

Section 5 of the Fourteenth Amendment empowers Congress to enforce

the Establishment Clause and the Free Exercise Clause when it can be

demonstrated that the States have engaged in unconstitutional conduct

and when the resulting legislation is proportionate to the constitutional

violations. Boerne, 521 U.S. at 532-36. In determining whether legisla-

tion is proportionate in contexts other than the Religion Clauses, the

Supreme Court has upheld prophylactic measures that require or

prohibit more than mere adherence to parameters imposed directly by

the Constitution. See, e.g., Tennessee v. Lane, 124 S. Ct. 1978, 1985

(2004). Assuming that Section 5 allows Congress to act in a similar

fashion in the area of religion, and assuming that the other prerequi-

sites of Section 5 are met, then a Congressional mandate for States to

exercise their discretion in a particular manner would not violate the

Establishment Clause.

14

beliefs require him to wear a hat or a turban. Under Smith

and O’Lone v. Estate of Shabazz, 482 U.S. 342, 349

(1987), because the policy is one of general applicability,

the federal Free Exercise Clause does not compel the State

to provide accommodation.” See Hines v. South Carolina

Dep't of Corr., 148 F.3d 353, 357-58 (4th Cir. 1998). Yet,

RLUIPA supplants the constitutional standard of Smith

and O’Lone and requires that the State accommodate the

request.

Although this requirement may seem relatively

benign, RLUIPA has the effect of undermining the States’

efforts to combat prison gangs. Indeed, white supremacists

and other gangs have routinely invoked RLUIPA to thwart

the States’ anti-gang practices. See, e.g., Johnson v. Mar-

tin, 223 F.Supp. 2d 820, 822-23 (W.D. Mich. 2002);

Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 833, 834 (S.D.

Ohio 2002); Marria v. Broaddus, 260 F. Supp. 2d 280, 284

(S.D.N.Y. 2001). Moreover, RLUIPA’s “least restrictive

means” test provides uncertain standards, greatly compli-

cating prison management. Before O’Lone, courts scruti-

nized prison regulations under tests varying from rational

basis to strict scrutiny and, not surprisingly, reached

conflicting results as to the propriety of indistinguishable

actions. This Court ultimately rejected the “least restric-

tive means” test because, “every administrative judgment

[was] subject to the possibility that some court somewhere

would conclude that it had a less restrictive way of solving

the problem at hand.” Turner v. Safley, 482 U.S. 78, 89

" Under O’Lone, “[wJhen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” O’Lone, 482 U.S. at 349.

“ There is some question as to whether the constitutional Free

Exercise claims of prisoners are governed by the Smith standard or by

the O’Lone standard See Hines, 148 F.3d at 357. This Court need not

resolve that issue in this case. RLUPIA requires far more than either

Smith or O’Lone.

Neen ee ee

15

(1987). That uncertainty greatly interfered with the

States’ ability to “anticipate security problems and to

adopt innovative solutions to the intractable problems of

prison administration.” Jd.”

By enacting RLUIPA, Congress has exceeded its

authority because those provisions interfere with the

States’ discretion to fill “the play in the joints” as they

deem appropriate. While RLUIPA favors the accommoda-

tion of religion, it interferes with States’ sovereignty just

as much as if Congress had prohibited such accommoda-

tion. If the Congress that enacted RLUIPA may constitu-

tionally exercise the power asserted, it is difficult to see

how the Constitution would protect the States against

some future Congress’ action based upon using federal

power for the opposite result. See Rubenfeld, supra at 2357

(“Congress may not try to dictate church-state relations

even to vindicate religious toleration or free exercise... .

To the extent that state can constitutionally enact laws

[concerning religious policy], Congress can make no law

instructing them not to do so. That would be a quintessen-

tial violation of the [Establishment Clause]... . ”).

II. BY ENACTING RLUIPA, CONGRESS HAS EX-

CEEDED ITS CONSTITUTIONAL AUTHORITY

A. Congress May Not Use Its Article I Powers

to Circumvent a Constitutional Holding of

This Court.

Congress enacted RLUIPA as a means of circumvent-

ing this Court’s decision in Smith. See Madison, 355 F.3d

” Of course, before this Court invalidated the Religious Freedom

Restoration Act, see Boerne, 521 U.S. at 532-36, inmates routinely

manipulated the “strict scrutiny” standard. See, e.g., Stefanow v.

McFedden, 103 F.3d 1466 (9th Cir. 1996); Ochs v. Thalacker, 90 F.3d

293 (8th Cir. 1996).

16

at 314-15." In Smith, this Court effectively overruled

Sherbert v. Verner, 374 U.S. 398, 402-03 (1963), and held

that “the right of free exercise does not relieve an individ-

ual of the obligation to comply with a ‘valid and neutral

law of general applicability on the ground that the law

proscribes (or prescribes) conduct that his religion pre-

scribes (or proscribes).’” Smith, 494 U.S. at 879. See also

United States v. Lee, 455 U.S. 252, 263, n.3 (1982) (Ste-

vens, J., concurring). In other words, “a law that is neutral

and of general applicability need not be justified by a

compelling governmental interest even if the law has the

incidental effect of burdening a particular religious prac-

tice.” Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993).

In response to Smith, Congress enacted the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-1

through 2000bb-4, which effectively sought to overrule the

holding in Smith and restore the Sherbert standard.

Congress sought to justify this attempt to circumvent a

constitutional holding of this Court by relying on its

powers to enforce the Fourteenth Amendment. However,

in Boerne, this Court rejected that argument and invali-

dated RFRA as it applies to the States and local govern-

ments. See Boerne, 521 U.S. at 532-36. In doing so, this

Court emphasized that the meaning of the Constitution is

determined by this Court, not by Congress or the Execu-

tive Branch or the States. See Id. at 524.

In response to Boerne, Congress passed RLUIPA,

which effectively sought to overrule Smith and restore the

Sherbert standard in the limited contexts of local land use

decisions and institutionalized persons. “Congress sought

to avoid Boerne’s constitutional barrier by relying on its

* Moreover, to the extent that the free exercise claims of prisoners

are governed by O’Lone rather than Smith, RLUIPA represents an

attempt to circumvent this Court’s constitutional holding in O’Lone.

Sse epee

17

Spending and Commerce Clause powers, rather than on

its remedial powers under section 5 of the Fourteenth

Amendment as it had in RFRA.” Madison, 355 F.3d at 315.

In other words, Congress believed that it could use its

Article I powers to circumvent a constitutional holding of

this Court.

Congress’ belief is mistaken. If a constitutional hold-

ing cannot be circumvented by the use of the extraordi-

nary Fourteenth Amendment enforcement power, Boerne,

521 U.S. at 532-36, then it certainly cannot be circum-

vented by the general Article I powers. See College Sav.

Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 683-84 (1999) (“Recognizing a congressional

power to exact constructive waivers of sovereign immunity

through the exercise of Article I powers would also, as a

practical matter, permit Congress to circumvent the

antiabrogation holding of Seminole Tribe [v. Florida, 517

U.S. 44 (1996)].”). This Court should invalidate RLUIPA

for the simple reason that it is an attempt by Congress to

use its Article I powers to circumvent a constitutional

holding of this Court.

B. By Enacting RLUIPA, Congress Has Ex-

ceeded Its Authority Under the Commerce

Clause.

In enacting RLUIPA, Congress relied upon the Com-

merce Clause. Indeed, the statute explicitly states that

RLUIPA is applicable whenever the burden on religion or

its removal affects “commerce with foreign nations, among

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

§ 2000cc-1(b)(2).

However, RLUIPA is not a valid exercise of the Article

I Commerce Clause Power. This is so for two reasons. First, a

State’s operation of its prisons has little or no impact on

interstate commerce. Second, even if a State’s operation of its

prisons has a substantial impact on interstate commerce,

18

Congress may not regulate the States when the States act

as sovereigns.

1. Congress May Not Use the Commerce

Power to Regulate Activities That Have

Little or No Impact on Interstate Com-

merce.

This Court has identified three broad categories of

activity that Congress may regulate under the Commerce

Clause. See United States v. Lopez, 514 U.S. 549, 558-59

(1995). First, Congress may “regulate the use of the

channels of interstate commerce.” Jd. at 558. Second,

“Congress is empowered to regulate and protect the

instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat

may come only from intrastate activities.” Id. Third,

Congress may regulate “intrastate activities having a

substantial relation to interstate commerce.” Jd. at 558-59.

This Court has stated that this last category includes only

those activities that are economic in nature. Jd. Thus, if

RLUIPA is a valid exercise of the Commerce Clause,

RLUIPA must fit into one of these three categories.

RLUIPA does not fit into either of the first two catego-

ries. A State prison’s policies regarding religious accommo-

dation within the prison do not involve the use of a

channel of interstate commerce. Nor do a state prison’s

policies concerning religious accommodation involve an

instrumentality of interstate commerce. Goods and ser-

vices do not legally flow between the States using the

prisons. Rather, a state prison’s policies concerning reli-

gious accommodation are simply an intrastate activity.

Thus, for RLUIPA to be a valid exercise of the Commerce

Clause power, RLUIPA must fit into the third category —

the regulation of intrastate activities that substantially

affect interstate commerce.

19

The test for determining whether an intrastate

activity substantially affects interstate commerce varies

depending on whether the regulated activity is economic

in nature. If the intrastate activity is economic in nature,

the impact of all similar activity nationwide is considered.

Conversely, if the intrastate activity is not economic in

nature, its impact on interstate commerce must be evalu-

ated on an individualized, case-by-case basis. See United

States v. Morrison, 529 U.S. 598, 617-19 (2000). Thus, the

question becomes whether a state prison’s religious ac-

commodation policies are economic in nature.

A state prison’s religious accommodation policies are

clearly non-economic in nature. Such policies are a reflec-

tion of security and safety concerns. Commercial consid-

erations are not involved. Rather, the focus is on

preventing disruption and maintaining a stable prison

environment. It “has nothing to do with ‘commerce’ or any

sort of economic enterprise.” Lopez, 514 U.S. at 561. It is

not “an essential,” or indeed any, “part of a larger regula-

tion of economic activity.” Id. A state prison’s religious

accommodation policy is not “in any sense of the phrase,

economic activity.” Morrison, 529 U.S. at 613 (citation

omitted).

2. Congress May Not Regulate the States

When States Act as Sovereigns.

Moreover, even if the regulation of the States’ prison

religious accommodation policies did substantially affect

interstate commerce, RLUIPA still would not be a valid

exercise of the Commerce Clause. Congress may not

regulate the States when the States act as sovereigns.

To explain, while Congress may regulate the States

when the States engage in general commercial activities,

Reno v. Condon, 528 U.S. 141, 150-51 (2000), Congress

may not regulate the States when the States act in their

sovereign capacities. See Printz, 521 U.S. at 924 (“Even

20

where Congress has the authority under the Constitution

to pass laws requiring or prohibiting certain acts, it lacks

the power directly to coinpel the States to require or

prohibit those acts.... The Commerce Clause, for exam-

ple, authorizes Congress to regulate interstate commerce

directly; it does not authorize Congress to regulate state

governments’ regulation of interstate commerce.”); New

York, 505 U.S. at 166 (“The allocation of power contained

in the Commerce Clause, for example, authorizes Congress

to regulate interstate commerce directly; it does not

authorize Congress to regulate state governments’ regula-

tion of interstate commerce.”).

To illustrate, Congress may require those States that

sell oranges to comply with the same U.S. Department of

Agriculture regulations applicable to private orange

sellers. However, Congress may not require the State to

enact certain policies toward sellers of oranges. The former

is a regulation of interstate commerce; the latter is a

regulation of the States as sovereigns. In enacting

RLUIPA, Congress clearly is regulating the States in their

sovereign capacity. This is not a statute generally regulat-

ing commerce that is applicable to private parties and

States alike if the States choose to engage in a particular

economic activity. Rather, this is a statute that regulates

religious accommodation in prisons and, by its very terms,

is applicable only to the States and the States’ agents.

Accordingly, RLUIPA is not a valid exercise of the Com-

merce Clause power.

C. By Enacting RLUIPA, Congress Has Ex-

ceeded Its Authority Under the Spending

Clause.

In enacting RLUIPA, Congress also relied on the

Spending Clause. Indeed, the statute explicitly states that

A NNN La So

21

it is applicable to any “program or activity that receives

Federal financial assistance,” 42 U.S.C. § 2000cc-1(b)(1).

However, RLUIPA is not a valid exercise of the Article

I Spending Clause Power. This is true for three independ-

ent reasons. First, Congress may not use the Spending

Clause to undermine the States’ sovereign authority.

Second, even if Congress generally may use the Spending

Clause to undermine the States’ sovereign authority,

RLUIPA is unconstitutional because the requirement to

adopt a prison religious accommodation policy is unrelated

to any purpose for which federal funds are appropriated.

Third, even if the prison religious accommodation policy is

related to the purpose for which federal funds are appro-

priated, RLUIPA is unconstitutionally coercive. Congress

cannot force the States to choose between forfeiting all

federal funds and adopting a particular prison semgous

accommodation policy.

1. The Spending Clause May Not Be Used

To Undermine The States’ Sovereignty.

One component of the States’ sovereignty is the

authority to define the terms and conditions of punish-

ment for its criminals, subject only to the dictates of the

Constitution. See Preiser v. Rodriguez, 411 U.S. 475, 491-

92 (1973) (“It is difficult to imagine an activity in which a

State has a stronger interest, or one that is more intri-

cately bound up with the state laws, regulations, and

procedures, than the administration of its prisons.”).

Undoubtedly, the States will vary in how they exercise

their sovereign authority. Some States may operate their

prisons as rehabilitative centers for self-improvement

while other States may view their prisons as a means of

inflicting the harshest punishment permitted by the

Constitution. Congress, foreign nationals, citizens of other

States, and even a State’s own citizens may disagree with

the policy choices of various States. However, as long as

22

the State complies with the restrictions of the Constitu-

tion, the State has the sovereign authority to pursue the

policies and practices it deems necessary and appropriate

with respect to the operation of its prisons.

RLUIPA eliminates the States’ sovereign authority

over their prisons by requiring that, as a condition of

receiving any federal funds for corrections, a State must

adopt a particular prison religious accommodation policy.

Essentially, the States must choose between maintaining

their sovereign authority to operate their prisons as they

wish, subject only to the Constitution, and receiving

federal funds for correctional purposes.

Forcing the States to make such a choice is unconsti-

tutional. The National government cannot purchase the

States’ sovereignty. If government “may compel the sur-

render of one constitutional right as a condition of its

favor, it may, in like manner, compel a surrender of all. It

is inconceivable that guaranties embedded in the Consti-

tution of the United States may be thus manipulated out

of existence.” Frost & Frost Trucking Co. v. Railroad

Comm’n, 271 U.S. 583, 594 (1926). Quite simply, if Con-

gress can use the Spending Clause power to eliminate the

States’ sovereign authority over prisons, then it can use

the Spending Clause power to replace the States’ sovereign

authority over education, criminal law, domestic relations,

transportation, taxation, and a myriad of other subjects.

In order to protect the States’ sovereignty, the

“mechanism for exercising power under the Spending

Clause, however, must have limits.”” Litman v. George

* In its efforts to preserve the States’ sovereignty, this Court has

limited Congress’ Commerce Clause power, Morrison, 529 U.S. at 615-

16; Lopez, 514 U.S. at 563-64, as well as its power to enforce the

Fourteenth Amendment, Morrison, 529 U.S. at 619-27; Boerne, 521 U.S.

at 519-24. However, this Court has not articulated similar limits on the

Spending Clause power. Consequently, Congress now has “a seemingly

easy end run around any restrictions the Constitution might be found

(Continued on following page)

23

Mason Univ., 186 F.3d 544, 552 (4th Cir. 1999). “If the

spending power is to be limited only by Congress’ notion of

the general welfare, the reality, given the vast financial

_ resources of the Federal Government, is that the Spending

Clause gives ‘power to the Congress to tear down the

barriers, to invade the states’ jurisdiction, and to become a

parliament of the whole people, subject to no restrictions

save such as are self-imposed.’” South Dakota v. Dole, 483

U.S. 203, 217 (1987) (O’Connor, J., joined by Brennan, J.,

dissenting). Because “the federal balance is too essential a

part of our constitutional structure and plays too vital a

role in securing freedor ” Lopez, 514 U.S. at 578 (Ken-

nedy, J., joined by O’Connor, J., concurring), the Spending

Clause cannot be used to “render academic the Constitu-

tion’s . . . limits of federal authority.” New York, 505 U.S. at

167.

2. The Conditions Imposed by RLUIPA

Are Unrelated to Any Purpose for

Which Federal Funds Are Provided to

State Correctional Systems.

Even if Congress generally may use its Spending

Clause power to undermine the States’ sovereign author-

ity, RLUIPA is still unconstitutional. The requirement that

the States adopt a particular prison religious accommoda-

tion policy is unrelated to any purpose for which federal

funds are offered to the States.

to impose on its ability to regulate the states. Congress need merely

attach its otherwise . constitutional regulations to any one of the large

sums of federal money that it regularly offers the states.” Lynn A.

Baker, The Revival of States’ Rights: A Progress Report and a Proposal,

22 Harv. J.L. & Pub. Pol’y 95, 101 (1998). Indeed, “the states will be at

the mercy of Congress so long as Congress is free to make conditional

offers of funds to the states that, if accepted, regulate the states in ways

that Congress could not directly mandate.” Lynn A. Baker, Conditional

Federal Spending and States’ Rights, 574 Annals 104, 105 (2001).

24

In Dole, this Court declared, “conditions on federal

grants might be illegitimate if they are unrelated ‘to the

federal interest in particular national projects or pro-

grams.” Dole, 483 U.S. at 207. See also Massachusetts v.

United States, 435 U.S. 444, 461 (1978) (plurality opinion).

The reason for this requirement is clear — conditions on

the receipt of federal funds always must “bear some

relationship to the purpose of the federal spending; other-

wise, of course, the spending power could render academic

the Constitution’s other grants and limits of federal

authority.” New York, 505 U.S. at 167 (citations omitted).

RLUIPA fails the relatedness test. Quite simply, there

is no apparent federal interest at stake in the operations of

state prisons. First, unlike many federal programs, Con-

gress is not directing how a specific appropriation is spent.

In other words, RLUIPA is unlike Congress appropriating

money for prison construction and then dictating the size

of each individual cell. Rather, in enacting RLUIPA,

Congress is simply adding these conditions as an after- -

thought to other appropriations for other purposes. Sec-

ond, unlike the highways at issue in Dole, state prisons

are not instrumentalities of commerce. It is one thing for

Congress to attach conditions to the receipt of federal

funds in order to make an instrumentality of commerce

safer. It is quite another for Congress to attach conditions

to the receipt of federal funds as a m ans of substituting

its judgment for that of state officials. Third, unlike Title

VI, 42 U.S.C. § 2000d, Congress is not requiring the States

to merely comply with the Constitution. See Grutter v.

Bollinger, 539 U.S. 306, 343 (2003); Gratz v. Bollinger, 539

U.S. 244, 276 n.23 (2003) (noting that Title VI is coexten-

sive with the Equal Protection Clause). Rather, RLUIPA

requires accommodation of religious belief that is simply

not required by either Smith or O’Lone.

25

3. RLUIPAIs Unconstitutionally Coercive.

Even if Congress generally may use the Spending

Clause to undermine the States’ sovereignty and even if

RLUIPA is related to the purpose for which federal funds

are provided, RLUIPA is still unconstitutional. The choice

imposed by RLUIPA is unconstitutionally coercive.

Although this Court has recognized that “Congress

may, in the exercise of its spending power, condition its

grant of funds to the States upon their taking certain

actions that Congress could not require them to take,”

College Sav. Bank, 527 U.S. at 686, this Court has also

recognized that “the financial inducement offered by

Congress might be so coercive as to pass the point at

which ‘pressure turns intu compulsion.’” Dole, 483 U.S. at

211. See also Steward Mach. Co. v. Davis, 301 U.S. 548,

590 (1937). “If the Congressional action amounts to coer-

cion rather than encouragement, then that action is not a

proper exercise of the spending powers but is instead a

violation of the Tenth Amendment.” West Virginia v. Dep't

of Health & Human Servs., 289 F.3d 281, 286-87 (4th Cir.

2002). See also College Sav. Bank, 527 U.S. at 687 (“In any

event, we think where the constitutionally guaranteed

protection of the States’ sovereign immunity is involved,

the point of coercion is automatically passed — and the

voluntariness of waiver destroyed — when what is attached

to the refusal to waive is the exclusion of the State from

otherwise lawful activity.”). Thus, “federal statutes that

threaten the loss of an entire block of federal funds upon a

relatively minor failing by a state are constitutionally

suspect.” West Virginia, 289 F.3d at 291.”

* Of course, several Circuits have suggested that the coercion

principle is substantively meaningless. See Kansas v. United States, 214

F.3d 1196, 1202 (10th Cir. 2000) (“[T]he coercion theory is unclear,

suspect, and has little precedent to support its application.”); California

-- (Continued on following page)

26

RLUIPA requires the States to either adopt a particu-

lar prison religious accommodation policy or lose all

federal funds for all correctional operations. To explain,

RLUIPA applies to any “program or activity” that receives

federal funds. 42 U.S.C. § 2000cc-1(b)(1). The term “pro-

gram or activity” is defined as “all of the operations of any

entity” described in 42 U.S.C. § 2000d-4(a)(1) or (2). 42

U.S.C. § 2000cc-5(6). That provision covers a variety of

entities including “a department, agency, special purpose

district, or other instrumentality of a State or a local

government.” 42 U.S.C. § 2000d-4(a)(1). In other words, if

“any part” of a State’s correctional system receives “federal

financial assistance” for any purpose, then all operations

of the correctional system are covered. See 42 U.S.C.

§ 2000cc-1; 42 U.S.C. § 2000d-4. That federal funds do not

affect the Department of Corrections’ religious accommo-

dation programs is of no consequence.

In Dole, this Court’s coercion analysis focused not on

the amount of money at issue or the percentage of the

State’s budget at issue, but on the percentage of federal

money at issue. This Court held that a statute that re-

quired forfeiture of five percent of federal funds was not

coercive. Dole, 483 U.S. at 211. In doing so, this Court

necessarily implied that some number greater than five

percent of federal funds would be coercive. While one can

v. United States, 104 F.3d 1086, 1092 (9th Cir. 1997) (“[T]o the extent

that there is any viability left in the coercion theory, it is not reflected

in the facts of this record.”); Nevada v. Skinner, 884 F.2d 445, 448 (9th

Cir. 1989) (“The difficulty if not the impropriety of making judicial

judgments regarding a state’s financial capabilities renders the coercion

theory highly suspect as a method for resolving disputes between

federal and state governments.”); Oklahoma v. Schweiker, 655 F.2d 401,

414 (D.C. Cir. 1981) (“The courts are not suited to evaluating whether

the states are faced here with an offer they cannot refuse or merely

with a hard choice. ... We therefore follow the lead of other courts that

have explicitly declined to enter this thicket when similar funding

conditions have been at issue.”).

27

only speculate as to what that number is, surely a statute

that requires the loss of one hundred percent of federal

funds meets that test. See Virginia Dep't of Educ. v. Riley,

106 F.3d 559, 570 (4th Cir. 1997) (en banc) (Luttig, J.,

joined by Wilkinson, C.J., Russell, Widener, Wilkins, &

Williams, JJ., announcing the judgment of the court)

(There is unconstitutional coercion when the National

Government “withholds the entirety of a substantial

federal grant on the ground that the States refuse to fulfill

their federal obligation in some insubstantial respect

rather than submit to the policy dictates of Washington in

a matter peculiarly within their powers as sovereign

States. In such a circumstance, the argument as to coer-

cion is much more than rhetoric; it is an argument of

fact.”). Indeed, if one hundred percent withdrawal does not

exact coercion, then the coercion principle is essentially

empty.”

Ill. THE SIXTH CIRCUIT’S INTERPRETATION

OF THE ESTABLISHMENT CLAUSE SHOULD

BE REJECTED.

In striking down RLUIPA, the Sixth Circuit set out a

unique interpretation of the Establishment Clause. Under

this theory, “[w]hen Congress acts to lift the limitations on

one right while ignoring all others, it abandons neutrality

towards these rights, placing its power behind one system

of belief. When the one system of belief protected is reli-

gious belief, Congress has violated the basic requirement

of neutrality embodied in the Establishment Clause.”

Cutter, 349 F.3d at 266 (quoting Madison I, 240 F. Supp. 2d

at 577). In other words, the accommodation of religious

rights cannot be treated any better (or any worse) than

” Moreover, unlike the program at issue in Dole, which was limited

to funds for a single purpose, RLUIPA threatens the juss of all funds for

all purposes.

28

the accommodation of non-religious rights. Thus, Congress

may not “reduce the burdens on religious exercise for

prisoners without simultaneously enhancing, say, an

inmate’s First Amendment rights to access pornography.”

Madison II, 355 F.3d at 319. In the Sixth Circuit’s view,

additional protection for religious rights is permitted only

if there is “evidence that religious rights are at greater

risk of deprivation ... than other fundamental rights.”

Cutter, 349 F.3d at 265.

Although the Sixth Circuit reached the correct result

in that it declared RLUIPA unconstitutional, its rationale

must be rejected. This is so for three reasons.

First, the Sixth Circuit’s rationale contradicts this

Court’s decisions upholding “a broad range of statutory

religious accommodations against Establishment Clause

challenges.” Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir.),

cert. denied, 534 U.S. 996 (2001). Indeed, this Court has

upheld statutes permitting schools to release students for

religious worship, Zorach v. Clauson, 343 U.S. 306, 315

(1952), property tax exemptions for church property, Walz

v. Tax Comm’n, 397 U.S. 664, 680 (1970), and exemptions

for religious organizations from anti-discrimination laws,

Amos, 483 U.S. at 335. Thus, “[t]here is no requirement

that legislative protections for fundamental rights march

in lockstep. The mere fact that RLUIPA seeks to lift

government burdens on a prisoner’s religious exercise does

not mean that the statute must provide commensurate

protections for other fundamental rights.” Madison II, 355

F.3d at 318.

Second, the Sixth Circuit’s analysis ignores the

Constitution’s text, which confers special protections for

religious rights. The fact that religious rights are explicitly

mentioned and that there is no textual command for

symmetry with non-religious rights suggests that religious

rights may be given favorable treatment if the government

desires. As the Fourth Circuit observed:

29

Free exercise and other First Amendment rights

may be equally burdened by prison regulations,

but the Constitution itself provides religious ex-

ercise with special safeguards. And no provision

of the Constitution even suggests that Congress

cannot single out fundamental rights for addi-

tional protection. To attempt to read a require-

ment of symmetry of protection for fundamental

liberties would not only conflict with all binding

precedent, but it would also place prison admin-

istrators and other public officials in the unten-

able position of calibrating burdens and remedies

with the specter of judicial second-guessing at

every turn.

Madison II, 355 F.3d at 319.

Third, and most importantly, the Sixth Circuit's

reasoning would have profound and widespread effects.

Indeed, acceptance of the Sixth Circuit’s rationale:

would throw into question a wide variety of reli-

gious accommodation laws. It could upset exemp-

tions from compulsory military service for

ordained ministers and divinity students under

federal law, since these exemptions are not

paired with parallel secular allowances or provi-

sions to protect other fundamental rights threat-

ened by compulsory military service. It would

similarly imperil Virginia’s and other states’ rec-

ognition of a “clergy-penitent privilege,” which

exempts from discovery an individual’s state-

ments to clergy when “seeking spiritual counsel

and advice.” Other specific religious accommoda-

tion statutes, ranging from tax exemptions to

exemptions from compulsory public school atten-

dance, would also be threatened.

Madison II, 355 F.3d at 320 (citations omitted). Further-

more, the Sixth Circuit’s rationale “would create a test

that Congress could rarely, if ever, meet in attempting to

lift regulatory burdens on religious entities or individu-

als.” Id.

30

CONCLUSION

RLUIPA, as applied to state prisons, is unconstitu-

tional. The judgment of the United States Court of Appeals

for the Sixth Circuit should be AFFIRMED, but for rea-

sons other than those articulated by the lower court.

Respectfully submitted,

JUDITH WILLIAMS JAGDMANN' OFFICE OF THE ATTORNEY

Attorney General of Virginia | GENERAL

ILLIAM E. THRO 900 East Main Street

ha = Richmond, Virginia 23219

State Solicitor General

Counsel of Record (804) 786-2436

(804) 371-0200 (facsimile)

MAUREEN RILEY MATSEN Counsel for the

Deputy Attorney General Co neveaith of Virginia

MATTHEW M. CoBB

CARLA R. COLLINS

ErIc A. GREGORY

JOEL C. HOPPE

COURTNEY M. MALVEAUX

VALERIE L. MYERS

A. CAMERON O’BRION

RONALD N. REGNERY

D. MATHIAS ROUSSY, JR.

WILLIAM R. SIEVERS

Associate State Solicitors General

February 11, 2005

[Additional Counsel Listed On Inside Of Cover]