Petition for Writ of Certiorari — Bass v. Madison

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Supreme Court of the Gnited States

GARY L. BASS, in his official capacity as Chief of

Operations of Offender Management Services for the

Virginia Department of Corrections, LEWIS B. CEI, in his

official capacity as Special Programs Manager for the

Virginia Department of Corrections, and DUNCAN M.

MILLS, in his official capacity as Central Classification

Supervisor for the Virginia Department of Corrections,

Petitioners,

IRA W. MADISON and UNITED STATES OF AMERICA,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

JERRY W. KILGORE

Attorney General of Virginia

WILLIAM H. HURD

State Solicitor

Counsel of Record

MAUREEN RILEY MATSEN

WILLIAM E. THRO

Deputy State Solicitors

COURTNEY M. MALVEAUX

Assistant Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

Counsel for Petitioners

April 6, 2004

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The Religious Land Use and Institutionalized Persons

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

contains provisions prescribing what religious accommoda-

tion policies must be implemented in state prisons (“Prison

Provisions”). This petition presents the following questions:

1. Do the Prison Provisions of RLUIPA violate

the Establishment Clause?

2. Does Congress have authority to enact the

Prison Provisions of RLUIPA, using the

Spending Clause, the Commerce Clause, or

any other grant of authority?

3. If the Prison Provisions are constitutional,

does the existence of a detailed remedial

scheme and/or a special sovereignty interest

preclude the application of Ex Parte Young,

209 U.S. 123 (1908), thereby leaving sover-

eign immunity as a bar to the federal court

injunction sought by the respondent?

PARTIES TO THE PROCEEDINGS

The petitioners are three officials of the Virginia

Department of Corrections, each of whom was sued in his

official capacity for injunctive relief. They are: (1) Gary L.

Bass, Chief of Operations of Offender Management Ser-

vices, (2) Lewis B. Cei, Special Programs Manager, and (3)

Duncan M. Mills, Central Classification Supervisor.’

There are two respondents: (1) Ira W. Madison, a

prisoner incarcerated by the Virginia Department of

Corrections, and (2) the United States of America, which

intervened for the purpose of defending the constitutional-

ity of a federal statute.

' Russell A. Riter (sometimes referred to as R. Riter or R. Ruter),

Daniel J. Armstrong, and the Commonwealth of Virginia were parties

to proceedings below but are not parties to this petition. Riter and

Armstrong were sued in their official capacities for injunctive relief and

in their personal capacities for damages. However, Riter and Armstrong

are no longer employed by the Virginia Department of Corrections.

Thus, the claims against them for injunctive relief are moot. Although

the damages claims against them in their personal capacities remain

live controversies in the district court. those claims are not a part of

this petition. The Commonwealth of Virginia was sued for both

damages and injunctive relief. However, the district court dismissed the

Commonwealth on sovereign immunity grounds and that ruling was

not part of the appeal below.

ill

TABLE OF CONTENTS

Page

UTE INS PRIN EER) a. .ccccccsccssssnscccereccoesesssossseess i

PARTIES TO THE PROCEEDINGS .......................00008 il

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PETITION FOR WRIT OF CERTIORARI ................... 1

I ic wivcsoxoussinsevaiendayetsousvenchasmensvesasisees 1

gs a ans Fis vbr viudi iio entucandacnibaaniinis 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

POU V OE EED EIN THAIS CASS... essrccccccsessessscsevessecsncsenes 1

EEE OE BERME AAPAOE osessncccenscccsssecesssseseessceseeers

REASONS FOR GRANTING THE WRIT....................

I. THE WRIT SHOULD BE GRANTED IN OR-

IT.

DER TO RESOLVE A SPLIT IN THE CIR-

CUITS OVER WHETHER THE PRISON

PROVISIONS VIOLATE THE ESTABLISH-

si oh alcatchasenseuscvenssiacinereviesenesses

A. The Symmetrical Accommodation Theory.....

B. The Federalism Aspect of the Establish-

oo ccd anacaap deve’

1. The Original Scope of the Establish-

I end cs divi ned acaiutecabinhexcivas

2. Alteration by Incorporation ...............

C. Estate of Thornton v. Caldor................006

THIS COURT SHOULD GRANT REVIEW TO

RESOLVE IMPORTANT FEDERAL QUES-

TIONS CONCERNING THE SCOPE OF CON-

EB ass saapiobnsbiinncersursneevaboncoeasbenss

TABLE OF CONTENTS -— Continued

Page

A. This Court Should Grant Review to Re-

solve Important Federal Questions Con-

cerning the Scope of Congress’ Spending

NINE BI cs cainissncareceviuecdetsekdniosian Saienedien 18

Be. ie paced naeriniaddieictenericamcrormicines 22

Bs MD bi siivhaciterecaniobveiopesscnsracauess 22

3. “Spending Specification”.................... 23

A: III sil Liciceca dined bnncnnseiralianumiateeas 23

B. This Court Should Grant Review to Re-

solve an Important Question Concerning

the Scope of Congress’ Commerce Clause

PE cictatsrdnchntetcatsadidcaietntudigel anima 25

III. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THE APPLICABILITY OF THE EX

PARTE YOUNG DOCTRIING .sccssssssseceresesessseses 26

A. This Court Should Determine Whether the

Power to Withdraw All Federal Funds Con-

stitutes a Detailed Remedial Scheme........... 27

B. This Court Should Determine Whether the

Commonwealth’s Interest in Defining the

Terms and Conditions of Punishment Con-

stitutes a Special Sovereignty Interest ...... 28

ENTE Maiitbcenncuss anew 30

eGR Ore 2 gy ne

TABLE OF AUTHORITIES

Page

CASES

Ansonia Bd. of Educ. v. Philbrook,

BT UB, OO (12GB) aswicisentscccresnescsscceses nsesercevessesseessecseuns 17

Barron v. Mayor and City Council of Baltimore,

32 U.S. (7 Pet.) 243 (1833).............ccccsccccccccsssresesscesees 12

Buckley v. Valeo,

BOG UB. 1 CUGTG) ccncscccccsccvstosiscscsvcsiccsnenvecconsanasacexavescvcomn 22

California v. United States,

104 F.3d 1086 (Oth Cir. 1997) ..............ccccccrrressessssereeeeees 21

Cantwel’ v. Connecticut,

DAE) UF, BOG (IID) wos vesccccscsannsiceneciccinansemmecapreesonmantaene 13

Charles v. Verhagen,

348 F.3d GO1 (7th Cir. 2003) .........ccccccccrssesesscoesess 9, 21, 22

City of Boerne v. Flores,

BE UTS. GT CRT vvvsciieccsecscesencscsonecnmsncezesineveraens 4, 18, 24

Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos,

S83 11.6. SET (IGB7 D wvseescsncrsenssinmessecarinneinniien 13, 17

County of Allegheny v. American Civil Liberties

Union, Greater Pittsburgh Chapter,

ABBE. B_B78 (AGG) vvenicissccrcsrusennesscesssasvsissriccassereaeasiawn 17

Cutter v. Wilkinson,

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

2004 U.S. App. LEXIS 4294

(Mae. ©. BODE s. siisiisntiscsstisinnioninnesmuned 8, 9, 11, 15, 18

Dolan v. City of Tigard,

9 15FE, TE CIGD vic vn csicsecivcctnvccssanssssaciccecainesananncserneess 19

Estate of Thornton v. Caldor,

MTD CTS. FOB CHOBE) vnsccssnevccenncvsssanstesssercesscereneconces passim

TABLE OF AUTHORITIES — Continued

Page

Everson v. Bd. of Educ.,

a AE TD bauincicsitsdiccueiotlnssstecidadnametaibenmedeapneen 13

Ex Parte Young,

Be et IE sibicksecshsuacsnunmspcenevnmsacetnds eiecoaents passim

Federal Maritime Comm’n v South Carolina

State Ports Auth.,

Se EE. WE IUD <ciccsichiicsdnece'cinctetiiasMomueneamatiancnsaasenens 18

Frost & Frost Trucking Co. v. R.R. Comm'n,

ee Se Ec cinccashinisasnshscsnntacda comsaneanlamasnancntaaes 19

Gebser v. Lago Vista Indep. Sch. Dist.,

er ks ee CE hic kadistncksviciekeen maa 28

Gerhardt v. Lazaroff, x

221 F. Supp. 2d 827 (S.D. Ohio 2002).............ccccccsscrssssess 5

Gratz v. Bollinger,

Se Ore Pe CE i cs kcicsaincencksnsancdaamasseeoenssalomeniannes 24

Grutter v. Bollinger,

De Ox Ske ee CN wiih kisi case 24

Idaho v. Coeur d’Alene Tribe,

gk hs | y mT ae rIET EN 27, 28, 29, 30

Johnson v. Martin,

223 F. Supp. 2d 820 (W.D. Mich. 2002)... eee 5

Kansas v. United States,

214 F.3d RAG CGS Be viva cxsenss thaccdenceenenr sens 20

Lee v. Weisman,

Ue SE OF CE nis viicncidccnvindaxdveceeeoaeienaa 12

Lemon v. Kurtzman,

I UF re re CRED chek sstikiccvcicscteeeencee aeleeaeimenns 15

Locke v. Davey,

TORS. CR: ISG GOO ok ictacnrcicinate owes 3,13

TABLE OF AUTHORITIES -— Continued

Page

Madison v. Riter,

BEE POe BiG CARs Cie, FOGG) nn. vcsesscscesasessenceaversancesseye 1,11

Marria v. Broaddus,

200 F. Supp. 2d 280 (S.D.N.Y. 2001) ........:eeeeeeeeeeseeeeeees 5

Massachusetts v. United States,

I Ot CI oi ces cesesntcchehsccskessartatvncseennservananreses 20

Mayweathers v. Newland,

314 F.3d 1062 (9th Cir,2002),

cert. denied sub nom. |

Alameida v. Mayweathers,

Be Se ID vnsnexssainconsecnscnistseobesatsetatestaenes 9, 21, 22

Mickle v. Moore,

y fe FEY Re, eennerer ner Cen eTernnnmnrT TT 4

Nevada v. Skinner,

RE Fe BGG CI Gi TID vcescsersivncessnssnssnsscvascodannasesses 21

New York v. United States,

RES TF Be, BE CED csecscccnccvessnsnnsccrccstsssoavene 19, 22, 26, 29

Ochs v. Thalacker,

Oy FF ak Be La Ge, WIG) oivcccnivcencncsoccscossessssecterenccasessens 5

Oklahoma v. Schweiker,

OE FO OE CEI, Ci, BED svccvnssacscsncerccssvssnnsesssansesenrs 21

Otten v. Baltimore & Ohio R. Co.,

SS Fe BH Ce Cr, TOE ncvicsiccccnssncdccncessasssccscvascosscesess 15

Pennhurst State Sch. & Hosp. v. Halderman,

I Fe FI ooivissicsstnacasovecdesicsnenisssnintsaninehsesesdsiatnarsins 28

Preiser v. Rodriguez,

eS Fee ae OT cin sarsscontdensonndciniedeaavtoneninamiensavaiananes 29

Printz v. United States,

Fe Be Ne Esai tacecncisaceonacednsccnciseanneckwnnnbunsiancmencans 26

Vill

TABLE OF AUTHORITIES — Continued

Page

Procunier v. Martinez,

ee ee IEE uri sio a ssnsids ndahcaslhn sv sctanaeasadbadenautanceien 5

Seminole Tribe v. Florida,

er ee EE Cisne soctes dinidesiah sicnalecetneniasasnutensasaa es 27, 28

South Dakota v. Dole, .

Pa IEE Gis kts cpisscsenieiiievisocesguskarcieomonniels passim

Stefanow v. McFadden,

DO Fe Pe Ce Be BE onic csniccsecectcccscctcssneccssseaxtavess 5

Steward Mach. Co. v. Davis,

301 U.S. 548 (1937) .......000... skate lasscich enesrevededauricoseeass 20

Texas Monthly, Inc. v. Bullock,

Se ee Oe era econt teenth des ticdasananachacenenetaiaionse 13

Turner v. Safley,

I Be IIT Dips theicsssssisenspiudchaniveussacundvoksciceanines 5, 6

United States v. Butler,

SE Be PIII isha tnsadpcckahika scdocsninibiaxeinlaboeissenaemeetasiens 19

United States v. Lopez,

ee ee RE asides eiviniscaieacaerestavcends 18, 25, 26

United States v. Morrison,

eee Se CE eka sitiaxacsatemidctasdieari nciavnieneceenices 18, 25

Walz v. Tax Com.,

er IE sat cchicasiviigrerkidann contend sineuntnantbierssxteenanes 17

West Virginia v. United States,

BE ee Ce Nes NE a sievssnssciicnccnnnsschnccsssnnsecconinie 21

Witters v. Washington Dept. of Servs. for the Blind,

er re aE hich tes tnieitenis dasa doeoieasceneamencen 13

Zelman v. Simmons-Harris,

ee Se I A IID soso cbcchasins ean ienas ee, Vassaunceaumuspnaenstuee, 14

LEELA ALE DAP DEE LO DLE PELE OR

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

UT.B, Copenh. Ark. 7, Gy GR. Wiicccccccciscvssicccrecictencssvcosrnnces passim

U.S, Comat. Art. 1, 9B, Ge. Becscccciscccsccsrcccsssscsssccevossssees passim

U7, Comet. Aammte. 8 occ scnsvcecsccsccsessesssceiessersssesresesensese passim

U.S. Const. Amend. 2.......cccccccscccscccccssssscesssersescssonscees passim

U.S. Const. Amend. ZIV .............cccccccrsssscccesssessesseesees passim

STATUTES

- EOS to & | SA EeEeOEer esr nT narcaice issn uucecaaiccneaencbansaneancrees 24

BB UBC. 6 TDG) occissscescscssscccssercsrsccrscisvesevessoreessececsvensesens 1

BB U.S.C. § UZOQUD)..ccescccoscserscesssossesenscccsnsessovessenenenssonssecsees 7

FT, BFW aisvassinvinvcherissasiesvecsnscasiccceccinennnpnsnnecxeseosioners 24

BT FE, OTD ives nccscestipecsceseccsunsantevassnensssasneetsccesaedesness 7

BD UGC. © BOD ovccvcviescesvevsstsseccecesesssennsnvesnsensessnccnsessessonse 2

BD UBC. S BOBO ova cccisisccsvisscccsencscesencsscvcssssnsnenesasenseve 2,6

AQ U.S.C. § 200Occ-1(b)(1) ............sceccssccecsessssrsecnsscrrcessessoees 6

42 U.S.C. $ 2OOOc]-16OM2) ..........cerccscccerrcesrescessvresacsonesonsens 25

AD U.S.C. § 2OODCC-26A)......0...cccerercccsccossersscancesssorenessssccncaveres 4

42 U.S.C. § 2000 c0-5(6)..........csscecscccccscccneccncsscrsasserscccssssosscs 6

TF Ee, Be eens ckncnnsesencsenscineiiemcaeumicwninsterstenesenye. sxaneens 24

AD U.S.C. $ 2O0OGKA.......cccccscccccsescccrcercsccretecescnseneorscsnassscesones 6

42 U.S.C. § 2000d-4(a)(1) ..............csccecccrcenncrrrrreceeeseesssscceee 6

MT 0 RIE nies ctcitctchsiscniinsasvccesssssxesnwanneenreeassnasinuawiss 23

Conn. Gen. Stat. § 53-303e(b) (1985) .......... ee eeeceeeeeeeeeeneees 15

TABLE OF AUTHORITIES -— Continued

OTHER AUTHORITIES

Department of Justice, Office of Justice Programs

Financial Guide, Ch. 13 (2002) (available at www.

ojp.usdoj.gov/FinGuide/part3-ch13.htm).................

Joseph Story, Commentaries on the Constitution

of the United States (1833) (available at

www.constitution.org/js/js_000.htm)..................000

Lynn A. Baker, Conditional Federal Spending

After Lopez,

96 Cotum. 1, Rev: 29970 (290D)....0.0:..ccsscccessssssscresseens

Lynn A. Baker, Conditional Federal Spending and

State’s Rights,

574 Annals 104 (2002).............0..... ade cesluneddaaid diane

Lynn A. Baker, The Revival of States’

Rights: A Progress Report and a Proposal,

22 Harv. J.L. & Pub. Pol. 95 (1998).........................

Page

PETITION FOR WRIT OF CERTIORARI

Three officials of the Virginia Department of Correc-

tions — Gary L. Bass, Lewis B. Cei, and Duncan M. Mills

(collectively, “the Commonwealth” or “Virginia”) — respect-

fully petition the Court for a writ of certiorari to review

the judgment of the court of appeals, which upheld the

prison provisions of the Religious Land Use and Institu-

tionalized Persons Act against constitutional challenge.

OPINIONS BELOW

The opinion of the court of appeals is reported as

Madison v. Riter, 355 F.3d 310 (4th Cir. 2003). It is re-

printed in the Appendix at App. 1. The opinion of the

district. court is reported at 240 F. Supp. 2d 566 (W.D. Va.

2003). It is reprinted at App. 23.

JURISDICTION

The court of appeals entered its judgment on Decem-

ber 8, 2003. On February 25, 2004, the Chief Justice,

sitting as Circuit Justice for the Fourth Circuit, acted on

the petitioners’ application for an extension of time and set

April 6, 2004, as the deadline for filing this petition. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE

1. The Establishment Clause of the First Amendment

provides: “Congress shall make no law respecting an

establishment of religion. . . .”

2. The Spending Clause, U.S. Const. Art. I, § 8, cl. 1,

states: “Congress shall have power ... to pay the debts

and provide for the common defense and general welfare of

the United States... .”

3. The Commerce Clause, U.S. Const. Art. I, § 8, cl. 3,

states: “Congress shall have power ... to regulate com-

merce with foreign nations, and among the several states,

and with the Indian Tribes.”

4. The Tenth Amendment provides: “The powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.”

5. The provisions of the Religious Land Use and Institu-

tionalized Persons Act (“RLUIPA”) that are applicable to

state prisons (“Prison Provisions”) are found at 42 U.S.C.

§ 2000cc-1 through § 2000cc-5. They are reproduced in

their entirety at App. 59.” Central to the Prison Provisions

are the restrictions imposed by 42 U.S.C. § 2000cc-1,

which provides as follows:

Protection of religious exercise of institutional-

ized persons

(a) General rule. No government shall impose a

substantial burden on the religious exercise of a

person residing in or confined to an institution,

as defined in section 2 of the Civil Rights of Insti-

tutionalized Persons Act, even if the burden re-

sults from a rule of general applicability, unless

the government demonstrates that imposition of

the burden on that person —

(1) is in furtherance of a compelling govern-

mental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

(b) Scope of application. This section applies in

any case in which —

(1) the substantial burden is imposed in a pro-

gram or activity that receives Federal financial

assistance; or

(2) the substantial burden affects, or removal of

that substantial burden would affect, commerce

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

case, requires that religious organizations be given preferential

treatment with respect to local planning and zoning laws. See 42 U.S.C.

§ 2000cc, App. 59.

with foreign nations, among the several States,

or with Indian tribes.

STATEMENT OF THE CASE

This case involves a dispute between two sovereigns —

the Commonwealth of Virginia and the United States of

America — over which sovereign has authority to set the

religious accommodation policy for convicted criminals

incarcerated in Virginia prisons. By adopting the Prison

Provisions of RLUIPA, Congress has claimed such author-

ity for itself. However, the Commonwealth contends that

those provisions are unconstitutional and that Virginia

retains sole authority in this area.

There are, of course, limits imposed on Virginia by the

Fourteenth Amendment insofar as it incorporates the

Religion Clauses of the First Amendment. However, this is

not a case where the policy chosen by Virginia is alleged to

violate those constitutional limits. Instead, this case arises

within the sphere of state discretion that lies between

what the Establishment Clause prohibits and what the

Free Exercise Clause requires. See Locke v. Davey, 124

S. Ct. 1307, 1311 (2004) (explaining there is “room for play

in the joints” between the two religion clauses). At issue is

whether, by adopting the Prison Provisions, Congress has

unconstitutionally invaded that sphere.

What brings this issue to a head is a lawsuit brought

by an incarcerated felon, Ira W. Madison, challenging the

prison dietary options made available to him by the

Commonwealth. Madison brought suit while a prisoner at

Buckingham Correctional Center. From 2000 to the

present, Madison has claimed to be a member of the

“Church of God and Saints of Christ,” a congregation

founded in 1896 and headquartered at “Temple Beth El” in

Suffolk, Virginia. Commonly known as “Hebrew Israel-

ites,” members of this church describe themselves as

“followers of the anointed God” who honor but do not

worship Jesus Christ. App. at 4. Madison’s church appar-

ently requires its members to abide by the dietary laws

laid out in the Hebrew Scriptures.

In July 2000, and again in March 2001, Madison

informed correctional officials that his religious beliefs

required him to receive a kosher diet, defined as.a “common

fare diet” by the Virginia Department of Corrections.’ Both

requests were denied. The Commonwealth rejected Madi-

son’s requests because it determined that Madison already

had adequate alternatives from the regular, vegetarian, and

“no pork” daily menus; because it doubted the sincerity of

Madison’s religious beliefs;* and because it considered

Madison’s history of disciplinary problems. In August 2001,

Madison filed suit against the Commonwealth in the U.S.

District Court for the Western District of Virginia, alleging

that the failure to provide him with the kosher diet he

requested violated the Prison Provisions of RLUIPA.”

Although the demands made by this particular inmate

may seem relatively benign, the statute he invokes also has

the malignant consequence of greatly complicating the task

of combating prison gangs. Under RLUIPA’s predecessor, the

Religious Freedom Restoration Act (“RFRA”),’ the pattern of

inmates manipulating the “strict scrutiny” standard was

well-established. See, e.g., Mickle v. Moore, 174 F.3d 464 (4th

* The affidavits offered in support of the Commonwealth’s motion

for summary judgment demonstrated that the common fare diet was

created to provide reasonable accommodation to inmates whose

religious diet needs could not be met by the other menus offered at all

Virginia Department of Corrections prisons. When an inmate requests a

special religious accommodation, the Department of Corrections looks

at the inmate’s disciplinary history, his stated religious preference, the

specifics of his request, and the specifics of what the prison currently

offers to meet his religious needs. See J.A. 69 (Note: “J.A.” refers to the

Joint Appendix in the court of appeals.)

* Since his original incarceration in 1991, Mr. Madison “partici-

pated” in a variety of religious sects, including the Rastafarian, Nation

of Islam, Al-Islam, Jehovah’s Witnesses, and Moorish Science Temple

faiths. J.A. 67.

* RLUIPA includes a private right of action. See 42 U.S.C. § 2000cc-

2(a), App. 62.

* RFRA was declared unconstitutional as applied to the States in

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

Hy)

Cir. 1999) (inmates claimed that separating religious group

known as “Five Percenters” violated Free Exercise Clause

notwithstanding documented history of group members

engaging in violent acts against other prisoners); Stefanow v.

McFadden, 103 F.3d 1466 (9th Cir. 1996) (inmate claimed

that his religion required him to read white supremacist

literature); Ochs v. Thalaker, 90 F.3d 293 (8th Cir. 1996)

(inmate claimed that his religion required that he be sepa-

rated from prisoners of other races).

The same practice has reemerged under RLUIPA, with

white supremacists and other gangs invoking the statute in

attempts to thwart anti-gang practices. See, e.g., Gerhardt

v. Lazaroff, 221 F. Supp. 2d 827, 833, 834 (S.D. Ohio 2002)

(Aryan Nation, Astara, Wiccan and Satanist believers

seeking, inter alia, access to white supremacist literature,

group religious services, and right to group identity by

conforming dress and appearance to supposed religious

requirements); Johnson v. Martin, 223 F. Supp. 2d 820, 822-

823 (W.D. Mich. 2002) (members of Melanic religion chal-

lenged group designation as Security Threat Group — with

attendant restrictions on group gatherings and receipt of

religious literature — where group members had engaged in

violent conduct inside prison); Marria v. Broaddus, 200

F. Supp. 2d 280, 284 (S.D.N.Y. 2001) (Five Percenter chal-

lenged designation as Security Threat Group notwithstand-

ing gang activities of group members, including extortion,

theft and violence against other inmates).

Moreover, the Prison Provisions’ “least restrictive

means” test provides an uncertain standard, greatly com-

plicating prison management. Before 1987, this Court’s

jurisprudence used a least restrictive means test to adjudi-

cate prisoner religious claims. Procunier v. Martinez, 416

U.S. 396, 413-414 (1974). Using that test, the lower federal

courts reached diametrically opposite legal conclusions

about the propriety of actions that were factually indistin-

guishable. This Court ultimately abandoned the least

restrictive means standard 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, 79 (1987). RLUIPA returns to the least restrictive

means test with all its accompanying uncertainty. As this

Court recognized in Turner, such uncertainty interferes

with the States’ ability to “anticipate security problems

and to adopt innovative solutions to the intractable prob-

lems of prison administration.” Jd.

Finally, the Prison Provisions force Virginia to choose

between (i) forfeiting all federal funding for all Depart-

ment of Corrections operations, and (ii) implementing the

troublesome religious accommodation policy preferred by

Congress.’ The fact that federal funds are not made

available to implement that policy is of no consequence.

Given the problems caused by the Prison Provisions, the

Commonwealth responded to Madison’s lawsuit with a

motion for summary judgment arguing, inter alia, that the

Prison Provisions are unconstitutional. Specifically, the

Commonwealth maintained that (1) the Prison Provisions

violate principles of federalism because they are not a valid

exercise of any enumerated power of Congress; and (2) even

if the Prison Provisions were otherwise valid, they violate the

Establishment Clause. The United States intervened in

order to defend the constitutionality of the Prison Provisions.

The district court found that the Prison Provisions

violate the Establishment Clause. As the chief explanation

for this result, the district court faulted the Prison

" To explain, the Prison Provisions apply 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 broadly to include “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). Those provisions cover, in turn, 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 the Virginia Department of Corrections receives “federal

financial assistance” for any purpose, then all operations of the Virginia

Department of Corrections are covered by the Prison Provisions. See 42

U.S.C. § 2000cc-1; 42 U.S.C. § 2000d-4. Thus, if the Department of

Corrections receives federal money, say, for new prison construction, the

religious accommodation requirements apply to all of its prisons.

Provisions because it accommodates religion while failing

to accommodate other First Amendment interests in a

comparable manner. Explaining what might be termed the

“symmetrical accommodation” theory, the district court

said that, by lifting limitations on religious rights, without

lifting comparable limitations on other First Amendment

rights, the Prison Provisions violate the neutrality re-

quired by the Establishment Clause. App. 33-44, 53-54.

The district court also cited Estate of Thornton v.

Caldor, 472 U.S. 703 (1985), in support of its decision. See

App. 47. In Caldor, this Court held that Connecticut

violated the Establishment Clause when it required

private employers to accommodate their employees’

religious practices by giving them time off on their Sab-

bath regardless of any burdens such accommodation might

create. The Caldor decision did not rely on any lack of

comparable accommodation of non-religious interests and,

thus, suggests an alternative ground for holding of the

Prison Provisions unconstitutional.

With the district court having found the Prison Provi-

sions unconstitutional, Madison and the United States

asked that the matter be certified for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b). After making the requisite

findings, the district court so certified the case.” App. 55.

The Fourth Circuit accepted the appeal. App. 57-58.

After reflecting on the implications of the district

court’s decision — and after reviewing the briefs of the

United States and Madison — the Commonwealth became

persuaded that the symmetrical accommodation theory was

fundamentally flawed and had the potential for working

great mischief. Thus, on appeal, the Commonwealth de-

clined to argue — and expressly disavowed — that theory.

Instead, the Commonwealth contended that the Prison

® Madison also made other claims, including a 42 U.S.C. § 1983

claim for alleged violations of the First Amendment. These other claims

are still pending in the district court.

Provisions violate the Establishment Clause for two rea-

sons: (1) the “federalism” aspect of the Establishment

Clause, which denies to Congress the power to legislate

with respect to state religious polices falling within the

States’ sphere of discretion, and (2) this Court’s decision in

Caldor. The Commonwealth also pressed its other federal-

ism arguments, contending that the Prison Provisions are

not a valid exercise of the Spending Clause power, or the

Commerce Clause power; and that, even if the Prison

Provisions were constitutional, the claim for injunctive

relief would be barred by sovereign immunity.

The Fourth Circuit rejected the district court’s sym-

metrical accommodation theory as well as the Common-

wealth’s argument based on Caldor. At the same time, the

court declined to address the federalism aspect of the

Establishment Clause or the Commonwealth’s other

federalism arguments, taking care to explain that these

issues had been preserved but remanding them for further

consideration by the district court. App. 21-22.

REASONS TOR GRANTING THE WRIT

The writ should be granted for three reasons. First,

there is a split in the Circuits with respect to whether the

Prison Provisions violate the Establishment Clause. Three

circuits — the Fourth, Seventh and the Ninth — have ruled

that the Prison Provisions do not violate the Establish-

ment Clause. The Sixth Circuit has reached the opposite

conclusion, ruling that they do. Cutter v. Wilkinson, 349

F.3d 257 (6th Cir. 2003), rehearing denied, 2004 U.S.

LEXIS 4294 (Mar. 3, 2004). Granting certiorari in this case

would provide the Court several alternative theories for

resolving the split.

Second, this Court should grant review to resolve

important federal questions concerning the scope of Con-

gress’ Powers. In recent years, this Court has reinvigorated

federalism by placing limits on Congress’ exercise of its

powers under the Commerce Clause and under Section 5 of

the Fourteenth Amendment. However, without limits on the

Spending Clause, Congress may easily outflank those

federalism limits. This petition offers the Court a good

vehicle to address the issue because the Prison Provisions

display a variety of objectionable features, thus allowing

the Court flexibility in crafting constitutional limits. This

petition also offers the Court an opportunity to clarify

and/or confirm limits on the Commerce Clause by deciding

whether the power to regulate interstate commerce in-

cludes the power to define the religious accommodation

policies implemented behind the walls of a state prison.

Third, this Court should grant review to clarify the

scope of the doctrine of Ex Parte Young, 209 U.S. 123

(1908). Specifically, this petition may allow this Court to

apply previous rulings that establish exceptions to the Ex

Parte Young doctrine when a detailed remedial scheme is

available or when a special sovereignty interest is at

stake.

I. THE WRIT SHOULD BE GRANTED IN ORDER

TO RESOLVE A SPLIT IN THE CIRCUITS

OVER WHETHER THE PRISON PROVISIONS

VIOLATE THE ESTABLISHMENT CLAUSE.

Four circuits have ruled on whether the Prison Provi-

sions of RLUIPA violate the Establishment Clause. In

addition to the Fourth Circuit, both the Seventh and

Ninth Circuits have ruled that they do not. Charles v.

Verhagen, 348 F.3d 601 (7th Cir. 2003); Mayweathers v.

Newland, 314 F.3d 1062 (9th Cir. 2002), cert. denied sub

nom. Alameida v. Mayweathers, 2003 U.S. LEXIS 5554

(Oct. 6, 2003). On the other hand, the Sixth Circuit has

ruled that the Prison Provisions do violate the Establish-

ment Clause. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir.

2003), rehearing denied, 2004 U.S. App. LEXIS 4294 (Mar.

3, 2004).

As a federal law circumscribing the authority of the

States to manage their own prisons, the Prison Provisions

alter the delicate balance of power between the State and

National governments. As a statute dealing with the exercise

of religion, the Prison Provisions touch upon a subject of

profound importance. As a congressional enactment struck

down by a federal circuit, the Prison Provisions are a

measure from which some but not all States have been

judicially exempted. In short, there is a split in the circuits

on the constitutionality of a major federal statute. Certio-

rari should be granted.

This petition provides a timely and well-postured

opportunity for this Court to resolve the circuit split because a

variety of Establishment Clause theories were presented to

the court below, and are thus available for the Court’s

consideration. These theories include: (a) the “symmetrical

accommodation” theory, (b) the “federalism” aspect of the

Establishment Clause, and (c) an analogy to this Court’s

decision in Caldor. Each will be briefly discussed.

A. The Symmetrical Accommodation Theory

According to the symmetrical accommodation theory,

the Prison Provisions are unconstitutional because they

accommodate religion without providing symmetrical

accommodation for other First Amendment interests. As

the theory was articulated by the district court,

When Congress acts to lift the limitations on one

right while ignoring all others, it abandons a posi-

tion of neutrality towards these rights, placing its

power behind one system of belief... . When the

one system of belief protected is religious belief,

Congress has violated the basic requirement of

neutrality embodied in the Establishment Clause.

App. 44. In upholding the Prison Provisions, the Fourth

Circuit rejected this theory with the following explanation:

The mere fact that RLUIPA seeks to lift government

burdens on a prisoner’s religious exercise does

not mean that the statute must provide commen-

surate protections for other fundamental! rights.

* * *

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. ... To attempt to

read a requirement of symmetry of protection for

A ANTM ANGMAR RINE RI IRON BEI oe 8

fundamental liberties would not only conflict

with all binding precedent, but it would also

place prison administrators and other public offi-

cials in the untenable position of calibrating bur-

dens and remedies with the specter of judicial

second-guessing at every turn.

App. 14, 16. Thus, the symmetrical accommodation theory

has been thoroughly addressed — and with different

results — by the Madison district court and by the Fourth

Circuit.” Thus, the theory is available for this Court’s

consideration in the event certiorari is granted.

Even so, the Commonwealth does not embrace the

symmetrical accommodation theory. Indeed, the theory

offers a Hobson’s choice: (i) approving federal intrusion

into an area of policy-making left to the States since the

Founding, or (ii) invalidating the Prison Provisions with

an analysis that jeopardizes religious accommodation in a

broad array of settings that heretofore seemed constitu-

tional. Thus, the Commonwealth contends that the Prison

Provisions violate the Establishment Clause on other

grounds. Either the “federalism” aspect of the Establishment

Clause, or the principles at work in Caldor, or both, render

the Prison Provisions invalid. The Commonwealth pressed

each of these grounds below, and each presents an alterna-

tive theory for consideration by this Court.

B. The Federalism Aspect of the Establishment

Clause

The federalism protections of the Establishment

Clause are the logical consequence of two principles firmly

° The Sixth Circuit relied on the symmetrical accommodation

theory and “streamlined” its opinion in Cutter by “repeated references”

te the Madison district court decision. Cutter, 349 F.3d at 262. The

Sixth Circuit concluded that “RLUIPA violates the Establishment

Clause because it favors religious rights over other fundamental rights

without any showing that religious rights are at any greater risk of

deprivation.” Cutter, 349 F.3d at 262.

embedded in this Court’s jurisprudence. The first principle

relates to the original scope of the Establishment Clause;

the second relates to the alteration of its original scope by

application of the Establishment Clause to the States

through incorporation under the Fourteenth Amendment.

1. The Original Scope of the Establishment

Clause: When the Religion Clauses were adopted in 1791,

they were intended to serve two distinct purposes. The

first purpose was “libertarian” in nature. The objective

was to protect the people of the United States against any

federal effort to interfere with their freedom of religion

and/or to establish a national religion. The second purpose

was “structural” or “federalist” in nature. It was to protect

the States against any federal efforts to interfere with state

religious policies, whatever those policies might be. As

explained by Justice Story, the Religion Clauses were in-

tended “to exclude from the national government all power to

act upon the subject [of religion].” Joseph Story, Commentar-

ies on the Constitution of the United States, § 1873 (1833)

(available at www.constitution.org/js/js_000.htm) (emphasis

added). Indeed, “[t]he whole power over the subject of

religion [was] left exclusively to the state governments, to

be acted upon according to their own sense of justice, and

the state constitutions.” Jd. (emphasis added).

Except as they might be limited by their own constitu-

tions, State governments retained the authority to adopt

any religious policy they wished, free from federal oversight

or limitation. See Barron v. Mayor and City Council of

Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833) (holding that no

provision of the Bill of Rights is applicable to the States).

See also Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia,

J., joined by Rehnquist, C.J. White, & Thomas J.J., dissent-

ing) (noting that the Establishment Clause was adopted, in

part, “to protect state establishments of religion from

federal interference”). This protection of State religious

* Justice Story’s work has long been regarded as a leading

authority on original intent.

policy from interference by the National Government

constitutes the federalism aspect of the Establishment

Clause.

2. Alteration by Incorporation: By construing the

Fourteenth Amendment to extend both the Establishment

Clause and the Free Exercise Clause to the States, this

Court’s jurisprudence has substantially curtailed the States’

authority to adopt policies regarding religion. See Everson v.

Bd. of Educ., 330 U.S. 1, 17 (1947) (incorporating the Estab-

lishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303

(1940) (incorporating the Free Exercise Clause). However,

that authority has not been completely eliminated.

The States retain the authority to make policy choices

in the “play in the joints” between what the Establishment

Clause prohibits and what the Free Exercise Clause

requires. Locke, 124 S. Ct. at 1307. See also Texas Monthly,

Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) (“we 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.”);

Corporation of the Presiding 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 govern-

ment 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 man-

dated by the Free Exercise Clause.”).”’

" For example, the federal Establishment Clause does not prohibit

a State from indirectly funding training for the ministry as part of a

larger program of neutral application, Witters v. Washington Dept. of

Servs. for the Blind, 474 U.S. 481, 487 (1986), but the Free Exercise

Clause is not violated if training for the ministry is excluded from such

a program. Locke, 124 S. Ct. at 1315.

The Fourteenth Amendment has made applicable to the

States the same “libertarian” aspect of the Religion Clauses

that previously applied only to the federal government.

However, the “federalism” aspect remains unaffected and

continues to prevent the federal government from legislating

with respect to State policy in the small but vital zone of

discretion where the States are not constitutionally foreclosed

from acting on matters of religion. Before the Fourteenth

Amendment, States could go so far as to establish religion

and, because Congress could enact no law “respecting” such

an establishment, Congress could not interfere. A fortiori,

before the Fourteenth Amendment, States could also take the

lesser step of merely accommodating religion, and such

accommodation was likewise free from Congressional inter-

ference. By incorporating the Religion Clauses, the Four-

teenth Amendment made moot the original prohibition

against Congressional interference with state policies on

establishments of religion; however, the prohibition against

Congressional interference with state policies on the accom-

modation of religion remains intact.” In other words, just as

the National Government could not tell the States whether to

establish a church or whether to respect the free exercise of

religion in 1804, it cannot tell the States what policies regard-

ing accommodation of religion should fill “the play in the

joints” in 2004.

By enacting the Prison Provisions, Congress has ex-

ceeded its authority because those provisions interfere with

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

best. Though the Prison Provisions favor the accommodation

of religion, they interfere with State sovereignty no less than

if Congress had prohibited such accommodation. If Congress

” Obviously, this means that the Establishment Clause applies

against the National Government in ways for which there is no compara-

ble application against the States. However, such a difference in applica-

tion is mandated by the historical purposes of the Establishment Clause.

See Zelman v. Simmons-Harris, 536 U.S. 639, 678-79 (2002) (Thomas, J.,

concurring) (“[I]t may well be that state action should be evaluated on

different terms than similar action by the Federal Government.”).

. Os = _— ee oo oe

ee re ee ee ee ee eee

may constitutionally enact the Prison Provisions, it is

difficult to imagine how the Constitution could protect the

States against a future Congress bent on using that same

power for a contrary purpose.

In sum, the federalism aspect of the Establishment

Clause offers this Court a plausible means of curbing

congressional over-reaching while leaving each sovereign —

the States and the National Government — full authority to

implement “RLUIPA-like” religion accommodation policies

in their own prisons, should they be so inclined. Certiorari

should be granted to consider this option.”

C. Estate of Thornton v. Caldor

At issue in Caldor was a Connecticut statute requir-

ing private employers to excuse their employees from work

on whichever day of the week individual employees desig-

nated as their Sabbath.” The Court found that the statute

had the primary effect of advancing religion. Caldor, 472

U.S. at 710. As such, it violated the second prong of the

Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

This decision seems best explained by two factors working

in combination. First, Connecticut was not accommodating

religion by lifting a burden of its own making. Instead, it

was requiring another entity to accommodate religion by

changing its conduct. Second, the burden imposed by the

mandated accommodation was heavy.

The statute did not just lift burdens imposed by Con-

necticut’s own policies and practices. Instead, it targeted

3 In Cutter, the Sixth Circuit did not address the federalism aspect

of the Establishment Clause, nor did the Ohio Defendants in Cutter

make such an argument.

“ The statute provided, “No person who states that a particular

day of the week is observed as his Sabbath may be required by his

employer to work on such day. An employee’s refusal to work on his

Sabbath shall not constitute grounds for his dismissal.” Caldor, 472

U.S. at 706 (quoting Conn. Gen. Stat. § 53-303e(b) (1985)).

burdens imposed by others — private employers. In other

words, Connecticut authorized its citizens to demand

religious accommodation from third parties. As the Court

aptly recognized:

The First Amendment... gives no one the right

to insist that in pursuit of their own interests

others must conform their conduct to his own re-

ligious necessities.

Caldor, 472 U.S. at 710 (quoting Otten v. Baltimore & Ohio

R. Co., 205 F.2d 58, 61 (2nd Cir. 1953) (Hand, J.)) As Justice

O’Connor explained, the statute lifted “a burden on religious

practice imposed by private employers, and hence is not the

sort of accommodation specifically contemplated by the Free

Exercise Clause.” Caldor, 472 U.S. at 712 (O’Connor, J.,

concurring). Moreover, the statute was “unyielding.” Caldor,

472 U.S. at 710. It made no exception, even when compliance

imposed “substantial economic burdens” on employers or

imposed “significant burdens” on other employees. Caldor,

472 U.S. at 710. Indeed, “the statute allow[ed] for no consid-

eration as to whether the employer has made reasonable

accommodation proposals.” Jd. (emphasis added).

The Prison Provisions suffer from analogous flaws.

Congress does not seek to lift burdens of its own making.

Instead, it is targeting burdens imposed by others — the

States. Moreover, the burdens imposed by the Prison

Provisions are heavy. Indeed, the federal law is nearly as

unyielding as the Connecticut statute, a fact that did not

escape the attention of the district court:

The “convenience or interests” of the prison sys-

tem, an important element of the inquiry into an

inmate’s claim under the Turner test, has been

eliminated in favor of a right to exemption

closely resembling the “absolute and unqualified

right” held by the employee in [Caldor].

App. 47. Like the Connecticut statute, the Prison Provisions

give every state prisoner “the right to insist that ... others

must conform their conduct to his own religious necessities.”

Caldor, 472 U.S. at 710. Moreover, like the Connecticut

statutes, the Prison Provisions are not satisfied with reasonable

Net cgy eo

accommodation. In order to avoid liability, a State must

prove that compliance would interfere with a “compelling

interest” — the heaviest burden recognized by constitutional

jurisprudence. Judged by the nature of the burden targeted —

and the nature of the burdens imposed — the Prison Provi-

sions should fare no better than the Connecticut statute.

Analyzing the Prison Provisions by using the Caldor

analogy has the advantage of leaving intact other govern-

mental accommodations of religion. When not required by

the Free Exercise Clause, government accommodation of

religion has typically meant action by government to relieve

religion of burdens imposed by that same government. See,

e.g., Amos, supra (treating as a permissible accommodation a

provision in Title VII of 1964 Civil Rights Act exempting

religious organizations from the Act’s generally applicable

prohibition against religious discrimination), County of

Allegheny v. American Civil Liberties Union, Greater Pitts-

burgh Chapter, 492 U.S. 573, 613 n.59 (1989) (citing as an

example of plausible accommodation of religion a hypotheti-

cal “Air Force ... regulation exempting yarmulkes (and

similar religiously motivated headcoverings) from its no-

headdress rule.”); Walz v. Tax Com., 397 U.S. 664 (1970)

(upholding as a permissible accommodation a state law

exempting real property used for religious purposes from

generally applicable real estate taxes imposed by the state).

In other words, governmental accommodation of religion

typically does not involve requiring accommodation from a

third party.”

Act, which does impose religious accommodation obligations on third

parties; however, unlike the heavy burdens imposed by the Prison

Provisions or by the statute in Caldor, the burden imposed by Title VII

is relatively light. A reasonable accommodation is all that is required. See

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) (“By its very terms

the statute directs that any reasonable accommodation by the employer

is sufficient to meet its accommodation obligation....[Wlhere the

employer has already reasonably accommodated the employee's

religious needs, the statutory inquiry is at an end.”).

Thus, unlike the symmetrical accommodation theory,

the Caldor analogy would not preclude the federal or state

governments from adopting “RLUIPA-like” religious

accommodation policies in their own prisons. Granting

certiorari on this petition will ensure that the Caldor

argument is presented to the Court for consideration.”

II. THIS COURT SHOULD GRANT REVIEW TO

RESOLVE IMPORTANT FEDERAL QUESTIONS

CONCERNING THE SCOPE OF CONGRESS’

POWERS.

A. This Court Should Grant Review to Resolve

Important Federal Questions Concerning the

Scope of Congress’ Spending Clause Power.

This Court should also grant review to determine

whether Congress may use the Spending Clause to cir-

cumvent other constitutional limitations and invade the

sphere of sovereignty reserved to the States. This issue is

an important federal question that has not been, but ought

to be, decided by this Court.

The 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. 7438, 751 (2002). In

order to preserve the sovereign authority of the States, this

Court has limited Congress’ Commerce Clause power, United

States v. Morrison, 529 U.S. 598, 615-16 (2000); United

States v. Lopez, 514 U.S. 549, 563-64 (1995), as well as its

power under Section 5 of the Fourteenth Amendment,

Morrison, 529 U.S. at 619-27; Flores, 521 U.S. at 519-24.

However, ‘this Court has not yet articulated meaningful

limits on Congress’ power under the Spending Clause.

Such limits are essential to maintaining our federal

system. As this Court has recognized, the “mechanism for

'* Caldor was not addressed by the Sixth Circuit decision in Cutter.

exercising power under the Spending Clause ... must have

limits. Otherwise, Congress ‘could render academic the Consti-

tution’s other grants and limits of federal authority.’” New York

v. United States, 505 U.S. 144, 167 (1992). “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. 208, 217 (1987) (O’Connor, J., joined by

Brennan, J., dissenting) (quoting United States v. Butler, 297

US. 1, 78 (1936)).’’ Moreover, if “government may not require a

person to give up a constitutional right ... in exchange for a

discretionary benefit conferred by the government .. . ,” Dolan

v. City of Tigard, 512 U.S. 374, 385 (1994), then surely the

National Government may not require the people at large —

acting through their States — to surrender an aspect of their

sovereignty in exchange for federal money. Indeed, if govern-

ment “may compel the surrender of one constitutional right as

a condition of its favor, it may, in like manner, compel surrender

of all. It is inconceivable that guaranties embedded in the

Constitution of the United States may be thus manipulated out

of existence.” Frost & Frost Trucking Co. v. R.R. Comm'n, 271

US. 583, 594 (1926). If the preservation of the States’ sover-

eignty dictates limits on all other congressional powers, then

surely limits also must be placed on the Spending Clause

” As one commentator has noted, Congress now has “a seemingly

easy end run around any restrictions the Constitution might be found

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

attach its otherwise unconstitutional 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. 95, 100-01 (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 State’s Rights, 574 Annals 104, 105 (2002).

power. The articulation of such limits on Congress’ authority

involves important federal questions that have not been, but

ought to be, decided by this Court.

In evaluating the current state of this Court’s Spend-

ing Clause jurisprudence, it is helpful to note both the

majority and dissenting opinions in Dole. In that case, a

majority of this Court recognized several principles that

might serve as limits on the Spending Clause power:

1. “[T]he exercise of the spending power must

—— be in pursuit of the general welfare.” Dole,

483 U.S. at 207 (internal quotation marks

and citation omitted).

2. Any condition imposed by Congress must be

unambiguous. /d.

3. “[{C]Jonditions on federal grants might be ille-

gitimate if they are unrelated ‘to the federal

interest in particular national projects or

programs.” Id. at 207 (quoting Massachu-

setts v. United States, 435 U.S. 444, 461

(1978) (plurality opinion)).

4. “(O]ther constitutional provisions may provide

an independent bar to the conditional grant of

federal funds.” Jd. at 208.

5. “(T]he financial inducement offered by Con-

gress might be so coercive as to pass the

point at which ‘pressure turns into compul-

sion.’” Id. at 208 (quoting Steward Machine

Co. v. Davis, 301 U.S. 548, 590 (1937)).

Relevant to this case are the third and final principles —

relatedness and coercion. Yet, despite this suggestion of

limiting principles, neither Dole nor any subsequent cases

decided by this Court have applied those principles to

invalidate any mandate imposed by Congress as a condi-

tion of receiving federal funds.”

"* Several circuits have suggested that the coercion requirement is

substantively meaningless. See Kansas v. United States, 214 F.3d 1196, 1202

(Continued on following page)

Dole is also important because of the dissent in which

Justice O’Connor articulated a specific test for determin-

ing the validity of Spending Clause legislation:

The appropriate inquiry, then, is whether the

spending requirement or prohibition is a condi-

tion on a grant or whether it is regulation. The

difference turns on whether the requirement

specifies in some way how the money should be

spent, so that Congress’ intent in making the

grant will be effectuated. Congress has no power

under the Spending Clause to impose require-

ments on a grant that go beyond specifying how

the money should be spent. A requirement that is

not such a specification is not a condition, but a

regulation, which is valid only if it falls within

one of Congress’ delegated regulatory powers.

Dole, 483 U.S. at 215-216 (O’Connor, J., joined by Bren-

nan, J., dissenting). See also Lynn A. Baker, Conditional

Federal Spending After Lopez, 95 Colum. L. Rev. 1911,

1962-78 (1995) (further refining the distinction in Justice

O’Connor’s dissent).

This petition presents an ideal vehicle for this Court

to provide clarity to the limiting principles suggested by

the majority in Dole or, alternatively, to adopt the stan-

dard suggested by Justice O’Connor’s dissent. This is so

because the Prison Provisions embody all of the Spending

Clause problems identified by each approach.”

(10th Cir. 2000); California v. United States, 104 F.3d 1086, 1092 (9th Cir.

1997); Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir. 1989); Oklahoma uv.

Schweiker, 655 F.2d 401, 414 (D.C. Cir. 1981). However, another circuit has

suggested that the coercion requirement is a meaningful restriction. West

Virginia v. United States, 289 F.3d 281, 291 (4th Cir. 2002).

whether Congress has power under the Spending Clause to enact the Prison

Provisions. However, the question has been addressed by both the Seventh

and Ninth Circuits. Charles, 348 F.3d at 606-10 (upholding the Prison

Provisions against a Spending Clause challenge), Mayweathers, 314 F.3d at

1066-68 (same). With the issue having been thus vetted through the lower

(Continued on following page)

es es

1. Coercion: The Dole majority found no coercion in that

case because “all South Dakota would lose if she [declines to

abide by the federal condition] is 5 [percent] of the funds

otherwise obtainable under specified highway grant programs.”

483 U.S. at 211 (internal quotation marks and citation omitted)

(emphasis added). By contrast, under RLUIPA, there is no way

to avoid the federal condition without sacrificing 100 percent of

funding otherwise available to the Department of Corrections

for all federal grant programs. Thus, this case does not require

the Court to find the precise point where “pressure turns into

compulsion.” The Court need only recognize that it is coercive to

threaten a state agency with a complete loss of all federal funds.

Such a decision by the Court would establish a useful “bookend”

to Dole’s conclusion that losing a relatively small percentage of

specified programs was not coercive.

2. Relatedness: Conditions on the receipt of federal

funds always must “bear some relationship to the purpose of

the federal spending ... otherwise, 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. In Dole, the Court was divided over whether the

federal condition (raising the drinking age to 21) was

sufficiently related to the federal funding program at issue

(highway construction). The majority found “relatedness”

on the theory that a nationwide drinking age of 21 would

promote safety on the highways that the federal funds

courts, there is little to be gained for this Court to postpone consideration to

another day. Indeed, the decisions by the Seventh and Ninth Circuits

underscore the need for this Court to take up the issue. Both conflate the

Dole requirement that a funding condition serve the general welfare with the

requirement that the condition be related to a federal interest, see Charles,

348 F.3d at 608; Mayweathers, 314 F.3d at 1067. Such a misguided approach

precludes any possibility of imposing meaningful limits on the Spending

Clause because notions of general welfare are rarely, if ever, subject to

judicial review. See, Dole, 483 U.S. at 207 n.2 (“The level of deference to the

congressional decision is such that the Court has more recently questioned

whether “general welfare” is a judicially enforceable restriction at all.”)

(citing Buckley v. Valeo, 424 U.S. 1, 90-91 (1976) (per curiam)).

helped build. Here there is not even such an indirect

connection. Indeed, there is no pretense of such related-

ness. Instead of a condition related to a specific funding

program, there is a blanket condition imposed whenever

the relevant state agency receives federal funds for any

purpose. If “relatedness” means anything, surely this

blanket condition goes too far. For this Court to say so

would, again, establish a useful bookend to Dole.

3. “Spending Specification”: In Dole, Justice

O'Connor said that the applicable test should be “whether the

requirement specifies in some way how the money should be

spent.” Dole, 483 U.S. at 216 (O'Connor, J., joined by Brennan,

J., dissenting). Such a test may best be viewed as a particularly

stringent sort of relatedness. Since the RLUIPA-imposed

condition is unrelated to the purposes for which prison-related

federal funds are granted, then a fortiori that condition would

not satisfy the “spending specification” approach favored by

Justice O’Connor. Hypothetically, if there were a federal

program to fund meals for inmates, then it might satisfy

Justice O’Connor’s approach for Congress to impose conditions

related to the inmates’ dietary needs — religious or otherwise.

However, in such a meal-funding program, it would not be

permissible for Congress to impose other conditions related,

say, to inmate clothing, hair length, reading materials, sweat

lodges or any of the other myriad demands that prisoners

might make under RLUIPA. Adopting the “spending specifica-

tion” approach advocated by the Dole dissent is another option

made available to the Court by this petition.

4, Regulation: In Dole, Justice O’Connor also said that,

if a requirement is not a spending specification, it is valid “only

if it falls within one of Congress’ delegated regulatory powers.”

Dole, 483 U.S. at 215-16 (O’Connor, J., joined by Brennan, J.,

dissenting) (emphasis added).” Under this approach, if the

? For example, to the extent that Congress may use its Commerce

Clause powers to prohibit discrimination against the disabled, see Ameri-

cans with Disabilities Act, 42 U.S.C. § 12101, Congress may also use its

Spending Clause powers to prohibit such discrimination by recipients of

(Continued on following page)

requirement could be enacted by Congress directly, then

concerns about the “coerciveness” or “relatedness” may or

may not disappear. However, this case would not require the

Court to address such a potentially troublesome question

because it is clear that Congress may not enact legislation

directly imposing the Prison Provisions on the States. By

striking down the Religious Freedom Restoration Act —

RLUIPA’s predecessor — this Court’s decision in Flores fore-

closes any argument that the Prison Provisions are a legiti-

mate exercise of Congressional power under Section 5 of the

Fourteenth Amendment. It should also be clear that Congress

has no power to impose the Prison Provisions under the

Commerce Clause. See infra at 25-26. Thus, this case presents

little danger that the development of meaningful limits on the

Spending Clause would involve a complicated debate over

whether the Prison Provisions “fall[{] within one of Congress’

delegated regulatory powers,” Dole, 483 U.S. at 215-16

(O’Connor, J., joined by Brennan, J., dissenting), or what the

consequence of such delegation might be. For this reason, too,

this petition neatly presents alternatives for formulating

restrictions on the Spending Clause.

In sum, the Prison Provisions embody all the worst

elements of conditions placed on federal spending. They

greatly exceed any requirements Congress could impose

federal funds. See Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Moreover, in the Commonwealth’s view, the test articulated by Justice

O’Connor could be readily expanded so as to allow Congress to impose a

condition on funding if the condition is one that the already Constitution

imposes directly on the States. For example, because the Fourteenth

Amendment prohibits the States from engaging in many forms of discrimi-

nation, Congress could impose compliance with that constitutional

standard as a condition for receiving federal funds. Thus, it would be

permissible for Congress to condition the receipt of federal funds on

compliance with the non-discrimination provisions of Title VI (42 U.S.C.

§ 2000d, prohibiting discrimination based on race) or Title IX (20 U.S.C.

§ 1681, prohibiting discrimination based on sex). See Grutter v. Bollinger,

123 S. Ct. 2325, 2347 (2003); Gratz v. Bollinger, 123 S. Ct. 2411, 2431 n.23

(2003) (Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, is

coextensive with the Equal Protection Clause).

Ne ee ee ee ee

directly. They are not intended to specify how the federal

funds are spent, nor are they related to any federal spend-

ing program. By making the cost of non-compliance the

loss of all funds otherwise available to the Department of

Corrections under all federal grant programs, the Prison

Provisions are plainly coercive. Thus, this case presents

the Court with an excellent opportunity to define urgently

needed limits on the exercise of federal power under the

Spending Clause. Certiorari should be granted.

B. This Court Should Grant Review to Resolve

an Important Question Concerning the

Scope of Congress’ Commerce Clause Power.

In passing the Prison Provisions, Congress also attempted

to invoke its Commerce Clause power. The statute explicitly

states that the Prison Provisions are applicable whenever the

burden on religion or its removal affects “commerce with foreign

nations, among the several States, or with Indian tribes.” 42

US.C. § 2000cc-1(bX2). Review is warranted to determine

whether the regulation of interstate commerce includes regulat-

ing the religious accommodation policies inside a state prison.

This is an important federal question that has not been, but

ought to be, decided by this Court. This petition presents a

timely and well-postured vehicle for deciding it.

Recent decisions of this Court compel the conclusion that

the Commerce Clause power does not extend to mandating a

particular religious accommodation policy for State prisons.

First, a State’s operation of its prisons does not implicate any

of the three factors that this Court has said allow Congress to

exercise its Commerce Clause power. That is to say, such

policies do not involve a channel of interstate commerce, they

do not involve an instrumentality of interstate commerce, and

they do not substantially affect interstate commerce. See

Morrison, 529 U.S. at 617-19; Lopez, 514 U.S. at 558-61.

Indeed, few activities seem more completely removed from

interstate commerce than policies governing inmates confined

behind the walls of a prison. Thus, a State’s operation of its

prisons falls outside the scope of the Commerce Clause power.

Second, even if the State’s operation of its prisons has a

substantial effect on interstate commerce, the State is acting as

a sovereign when it determines the terms and conditions of

punishment. Congress may not regulate the States when they

act as sovereign. See Printz v. United States, 521 U.S. 898, 924 |

(1997) (“Even where Congress has the authority under the |

Constitution to pass laws requiring or prohibiting certain acts,

it lacks the power directly to compel the States to require or

prohibit those acts.... The Commerce Clause, for example,

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 com-

merce directly; it does not authorize Congress to regulate state

governments’ regulation of interstate commerce.”).

If this Court grants review to resolve the Establishment

Clause issue, or to determine the Spending Clause questions,

it should also take the opportunity to affirm and apply the

Commerce Clause principles articulated in Morrison and

Lopez. For this reason, too, certiorari should be granted.

Ill. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THE APPLICABILITY OF THE EX

PARTE YOUNG DOCTRINE.

Review of this case is also warranted to resolve

important questions regarding the application of Ex Parte

Young, 209 U.S. 123 (1908) that have not been, but ought

to be, decided by this Court. Specifically, this Court should

grant review to determine if the Ex Parte Young doctrine is

applicable to the Prison Provisions.” If Ex Parte Young is

* If this Court were to conclude that the Prison Provisions are

unconstitutional, then this Court obviously would not reach the Ex

Parte Young issue. Thus, in this part of the petition, it is assumed

arguendo that the Prison Provisions are constitutional.

eee eee

not applicable, then sovereign immunity bars Madison

from seeking injunctive relief in the federal courts.

Although the Ex Parte Young doctrine generally allows

federal courts to enjoin state officers from on-going violations

of federal law, the doctrine is inapplicable where Congress

has enacted a detailed remedial scheme, Seminole Tribe v.

Florida, 517 U.S. 44, 74-76 (1996), or where special sover-

eignty interests are involved. Idaho v. Coeur d’Alene Tribe,

521 US. 261, 281-82 (1997). While this Court has recognized

these two exceptions to the doctrine, it is has never ex-

pounded upon their meaning in any other case. This petition

presents an opportunity to do so.

A. This Court Should Determine Whether the

Power to Withdraw All Federal Funds Con-

stitutes a Detailed Remedial Scheme.

In Seminole Tribe, this Court held that the Ex Parte

Young doctrine was inapplicable in those situations where

Congress enacted a “detailed reraedial scheme.” Seminole

Tribe, 517 U.S. at 71-75. Specifically, this Court explained:

Where Congress has created a remedial scheme for

the enforcement of a particular federal right, we

have, in suits against federal officers, refused to sup-

plement that scheme with one created by the judici-

ary. Here, of course, the question is not whether a

remedy should be created, but instead is whether the

Eleventh Amendment bar should be lifted, as it was

in Ex Parte Young, in order to allow a suit against a

state officer, Nevertheless, we think that the same

general principle applies: therefore, where Congress

has prescribed a detailed remedial scheme for the

enforcement against a State of a statutorily created

right, a court should hesitate before casting aside

those limitations and permitting an action against a

state officer based upon Ex Parte Young.

Id. at 74-75 (citations and footnote omitted). Where Congress

has enacted a remedial structure to remedy violations of

federal law, there is no need for the federal courts to use the

Young doctrine to accomplish the same objective. Thus, the

inquiry necessarily becomes whether Congress has enacted a

detailed remedial scheme for the Prison Provisions.

Congress has done so. As with any Spending Clause

legislation, Congress has stated that if a State wishes to receive

federal funds for various purposes, then it must agree to comply

with the conditions that Congress has clearly and unambigu-

ously mandated. See Pennhurst State Sch. & Hosp. v. Halder-

man, 451 U.S. 1, 17 (1981). The federal government provides

for the withdrawal of federal funds if a recipient of corrections

grants fails to comply with civil rights requirements of federal

statutes.” Department of Justice, Office of Justice Programs

Financial Guide, Ch. 13 (2002) (available at wwwojp. us-

doj.gov/FinGuide/part3-ch13.htm). This power to remedy any

violation of the Prison Provisions by withdrawing federal funds

is a detailed remedial scheme. There is no need for a federal

court to provide additional remedies. Thus, this Court should

grant certiorari to decide whether the Ex Parte Young doctrine is

applicable to a suit brought pursuant to the Prison Provisions.

B. This Court Should Determine Whether the

Commonwealth’s Interest in Defining the

Terms and Conditions of Punishment Con-

stitutes a Special Sovereignty Interest.

Even in situations where there is an on-going violation of

federal law, the Ex Parte Young doctrine is inapplicable if there

are “special sovereignty interests” involved. See Coeur d'Alene

Tribe, 521 U.S. at 270. In Coeur d'Alene, a tribe of Native

Americans sued Idaho and various state officials in a dispute

over the control of certain submerged lands. Although it was

alleged that state officials were engaged in an on-going

violation of federal law, this Court held that the Ex Parte

Young doctrine was inapplicable. As this Court explained:

* See also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

287-88 (1998) (explaining process for withdrawal of federal funds for

violation of Title IX).

SNF Ss ree. Sera

———----_--

It is apparent, then, that if the Tribe were to pre-

vail, Idaho’s sovereign interest in its lands and

waters would be affected in a degree fully as in-

trusive as almost any conceivable retroactive levy

upon funds in its Treasury. Under these particular

and special circumstances, we find the Young ex-

ception inapplicable. The dignity and status of its

statehood allows Idaho to rely on its Eleventh

Amendment immunity and to insist upon re-

sponding to these claims in its own courts, which

are open to hear and determine the case.

Coeur d’Alene Tribe, 521 U.S. at 287-88. Thus, in those

situations where a special sovereignty interest is present,

the Ex Parte Young doctrine does not apply. In such situa-

tions, the plaintiff’s remedy must be found in state courts

even though the basis of the claim is federal law.

There is a special sovereignty interest that precludes the

application of the Ex Parte Young doctrine to claims based on

the Prison Provisions. That special sovereignty interest is the

authority of the Commonwealth to operate its prisons and

define the terms and conditions of punishment. New York, 505

US. at 156-57 (“The Tenth Amendment thus directs us to

determine, ... whether an incident of state sovereignty is

protected by a limitation on an Article I power.”). 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 intricately bound up with the state laws,

regulations, and procedures, than the administration of its

prisons.”). The Commonwealth does not claim that such a

special sovereignty interest is an exception to Ex Parte Young

when the action is action brought to enforce constitutional

obligations. However, under the Prisun Provisions, the source

of the alleged obligation is simply the Spending Clause —1.e., a

“contract” between the State and federal governments — and

the Commonwealth’s special sovereignty interest should bar

any RLUIPA action brought by a State prisoner ir. federal

court. In other words, while the federal courts, utilizing the Ex

Parte Young doctrine, may direct the Commonwealth's correc-

tional officials to comply with the Constitution, state officials

should not be hauled into federal court to litigate whether

RLUIPA entitles the prisoner to a particular sort of meal or

some other special treatment. The indignity of such a suit is at

least as great as any indignity to Idaho in being brought into

federal court to litigate the ownership of the land beneath its

rivers and streams. In Virginia, as in Idaho, the state courts

are “open to hear and determine the case.” Coeur d'Alene, 521

U.S. at 288. If Madison wishes to litigate a claim alleging a

violation of the Prison Provisions, he should be required to

bring his claim there.

In sum, this petition provides the Court an opportunity to

clarify the scope of the special sovereignty interest exception

to Ex Parte Young. For this reason, too, certiorari should be

granted.

CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

JERRY W. KILGORE

Attorney General of Virginia

WILLIAM H. HURD

State Solicitor

Counsel of Record

MAUREEN RILEY MATSEN

WILLIAM E. THRO

Deputy State Solicitors

COURTNEY M. MALVEAUX

Assistant Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436 (voice)

(804) 371-0200 (facsimile)

Counsel for the Petitioners

Gary L. Bass, Lewis B. Cei,

and Duncan M. Mills

April 6, 2004

APPENDIX

App. 1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IRA W. MADISON,

Petitioner-Appellant,

Vv.

R. RITER, a/k/a R. Ruter, CCS Chairman;

DUNCAN MILLS; D. J. ARMSTRONG;

Gaky Bass, Chief of Operations, CCS;

Commonwealth of Virginia; LEWIS B.

CEI, Special Programs Manager,

Respondents-Appellees.

ALEPH INSTITUTE; AMERICAN CIVIL

LIBERTIES UNION; THE AMERICAN

JEWISH COMMITTEE; THE AMERICAN

JEWISH CONGRESS; THE BAPTIST JOINT

COMMITTEE ON PUBLIC AFFAIRS; THE

BECKET FUND FOR RELIGIOUS LIBERTY;

THE CHRISTIAN LEGAL SOCIETY; PEOPLE

FOR THE AMERICAN WAY,

Amici Supporting Appellant.

UNITED STATES OF AMERICA,

Intervenor-Appellant,

Vv.

R. RITER, a/k/a R. Ruter, CCS Chairman;

DUNCAN MILLS; D. J. ARMSTRONG;

Gary Bass, Chief of Operations, CCS;

Commonwealth of Virginia; LEwis B.

CEI, Special Programs Manager,

Respondents-Appellees.

No. 03-6362

App. 2

ALEPH INSTITUTE; AMERICAN CIVIL No. 03-6363

LIBERTIES UNION; THE AMERICAN

JEWISH COMMITTEE; THE AMERICAN

JEWISH CONGRESS; THE BAPTIST JOINT

COMMITTEE ON PUBLIC AFFAIRS;

THE BECKET FUND FOR RELIGIOUS

LIBERTY; THE CHRISTIAN LEGAL SOCIETY;

PEOPLE FOR THE AMERICAN WAY,

Amici Supporting Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, Senior District Judge.

(CA-01-596-7)

Argued: October 28, 2003

Decided: December 8, 2003

Before WILKINSON, MICHAEL, and DUNCAN, Circuit

Judges.

Reversed and remanded by published opinion. Judge

Wilkinson wrote the opinion, in which Judge Michael and

Judge Duncan Joined.

COUNSEL

ARGUED: Gene C. Schaerr, SIDLEY, AUSTIN, BROWN

& WOOD, L.L.P., Washington, D.C.; Michael Scott Raab,

Appellate Staff, Civil Division, UNITED STATES DE-

PARTMENT OF JUSTICE, Washington, D.C., for Appel-

lants. William Eugene Thro, Deputy State Solicitor,

OFFICE OF THE ATTORNEY GENERAL, Richmond,

_ Virginia, for Appellees. ON BRIEF: Richard H. Menard,

Jr., SIDLEY, AUSTIN, BROWN & WOOD, L.L.P., Wash-

ington, D.C.; Robert D. McCallum, Jr., Assistant Attorney

General, Stuart E. Schiffer, Acting Assistant Attorney

App. 3

General, John L. Brownlee, United States Attorney, Mark

B. Stern, Appellate Staff, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellants. Jerry W. Kilgore, Attorney General, William

H. Hurd, State Solicitor, Maureen Riley Matsen, Deputy

State Solicitor, Pamela A. Sargent, Senior Assistant

Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL, Richmond, Virginia, for Appellees. Kevin J. Has-

son, Anthony R. Picarello, Jr., Roman P. Storzer, Derek L.

Gaubatz, THE BECKET FUND FOR RELIGIOUS LIB-

ERTY, Washington, D.C. for Amici Curiae.

OPINION

WILKINSON, Circuit Judge:

Appellant Ira W. Madison, a convict held in a Virginia

Department of Corrections prison, was denied his requests

for kosher meals that he claims his religious beliefs

require. He sued the Commonwealth of Virginia and

officials of the Virginia Department of Corrections, alleg-

ing among other claims a violation of section 3 of the

Religious Land Use and Institutionalized Persons Act of

2000 (RLUIPA). The district court ruled that the provision

had an impermissible effect of advancing religion under

the second prong of the Lemon test. See Lemon v. Kurtz-

man, 403 U.S. 602, 612-13 (1971). Because we find that

Congress can accommodate religion in section 3 of RLUIPA

without violating the Establishment Clause, we reverse.

To hold otherwise and find an Establishment Clause

violation would severely undermine the ability of our

society to accommodate the most basic rights of conscience

and belief in neutral yet constructive ways.

App. 4

From 2000 to the present, Madison has claimed to be

a member of the Church of God and Saints of Christ, a

congregation founded in 1896 and headquartered at

Temple Beth El in Suffolk, Virginia. Church members are

commonly known as Hebrew Israelites, and they claim to

be “followers of the anointed God” who honor but do not

worship Jesus Christ. Most importantly for purposes of

this case, Madison’s church requires its members to abide

by the dietary laws laid out in the Hebrew Scriptures.

The parties dispute the timing of Madison’s conver-

sion and his affiliation with a wide range of other religious

groups during his incarceration. What is clear is that in

July 2000 and again in March 2001, Madison informed

correctional officials that his religious beliefs required him

to receive a kosher diet, defined as a “common fare diet” by

the Virginia Department of Corrections. Both requests

were approved by local prison officials, but denied by

Department of Corrections administrators in Richmond.

The Commonwealth rejected Madison’s requests because it

determined that Madison already had adequate alterna-

tives from the regular, vegetarian, and no pork daily

menus; because it doubted the sincerity of Madison’s

religious beliefs; and because it considered Madison’s

history of disciplinary problems.

In August 2001, Madison challenged the denial of his

request in district court, relying in part on section 3 of

RLUIPA. Section 3(a) of RLUIPA states that “no govern-

ment shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institu-

tion ... even if the burden results from a rule of general

App. 5

applicability, unless the government demonstrates that

imposition of the burden on that person — (1) is in further-

ance of a compelling government interest; and (2) is the

least restrictive means of furthering that compelling

government interest.” 42 U.S.C. § 2000cc-1(a) (2000).

Section 3(b) of RLUIPA states that Section 3(a) applies

whenever the substantial burden at issue “is imposed in a

program or activity that receives Federal financial assis-

tance.” 42 U.S.C. § 2000cc-1(b)(1). In 2002 the Common-

wealth Department of Corrections received $4.72 million —

approximately 0.5% of its budget — from the federal

government, thus triggering the statute’s applicability.

Madison’s lawsuit relied on section -4(a) of RLUIPA, which

creates a private right of action that allows any person to

“assert a violation of this chapter as a claim or defense in a

judicial proceeding” and to “obtain appropriate relief

against a government.” 42 U.S.C. § 2000cc-2(a).

The district court denied Madison’s motion for sum-

mary judgment concerning his constitutional claims on

August 23, 2002, and it deferred ruling on his RLUIPA

claim pending briefing and argument on the statute’s

constitutionality. The district court also granted the

United States leave to intervene to defend the statute,

pursuant to 28 U.S.C. § 2403(a).

On January 23, 2003, the district court found that

section 3 of RLUIPA impermissibly advanced religion by

offering greater legislative protection to the religious

rights of prisoners than to other fundamental rights that

were similarly burdened. See Madison v. Riter, 240 F.

Supp. 2d 566, 577 (W.D. Va. 2003). The district court

therefore rejected Madison’s statutory claim, and simulta-

neously certified the question of RLUIPA’s constitutional-

ity for interlocutory appeal under 28 U.S.C. § 1292(b).

App. 6

Madison and the United States filed timely petitions with

this court to appeal the order, and their petitions were

granted.

ee ee ee eee

The legislative and judicial background that led to

RLUIPA’s enactment are important for considering Madi-

son’s appeal. Congress crafted RLUIPA to conform to the

Supreme Court’s decisions in Employment Division uv.

Smith, 494 U.S. 872 (1990), and City of Boerne v. Flores,

521 U.S. 507 (1997). In Smith, the Court held that laws of

general applicability that incidentally burden religious

conduct do not offend the First Amendment. See 494 U.S.

at 890. The neutrality principle in Smith largely comple-

mented the traditional deference that courts afford to

prison regulations that impose burdens on prisoners’

rights. See Turner v. Safley, 482 U.S. 78, 89-90 (1987).’ At

" Turner v. Safley laid out a four-factor “rational- relationship” test

for analyzing the constitutionality of regulations that burden prisoners’

fundamental rights. 482 U.S. at 89-90. Under Turner, courts must

consider (1) whether a “valid, rational connection [exists] between the

prison regulation and the legitimate governmental interest put forward

to justify it,” (2) whether “alternative means of exercising the right [exist]

that remain open to prison inmates,” (3) what “impact accommodation of

the asserted constitutional right will have on guards and other inmates,

and on the allocation of prison resources generally,” and (4) whether there

was an “absence of ready alternatives” to the regulation in question. /d.

State and local prison regulations that burden prisoners’ religious

exercise have been subject to this rational-relationship test. See O’Lone v.

Estate of Shabazz, 482 U.S. 342, 349-50 (1987); see also In re Long Term

Administrative Segregation of Inmates Designated as Five Percenters, 174

F.3d 464, 468-69 (4th Cir. 1999); Hines v. South Carolina Dept. of

Corrections, 148 F.3d 353, 357 (4th Cir. 1998). The deferential test that

(Continued on following page)

App. 7

the same time, however, the Smith Court openly invited

the political branches to provide greater protection to

religious exercise through legislative action. See 494 U.S.

at 890.

In 1993, Congress responded to Smith by enacting the

Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.

§ 2000bb et seg., which Congress claimed was premised on its

remedial powers under section 5 of the Fourteenth Amend-

ment. RFRA prohibited federal and state governments from

“substantially burden[ing]” a person’s exercise of religion,

even as the result of a law of general applicability, unless

the government could demonstrate that the burden “(1) is

in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compel-

ling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b).

The Supreme Court’s decision in City of Boerne v.

Flores, 521 U.S. 507 (1997), invalidated RFRA as it applied

to states and localities. The Court held that the scope of

the statute exceeded Congress’s remedial powers under

section 5 of the Fourteenth Amendment. See 521 U.S. at

532-36.

While RFRA continued to apply to the federal gov-

ernment, see Guam v. Guerrero, 290 F.3d 1210, 1221 (9th

Cir. 2002); O’Bryan v. Bureau of Prisons, No. 02-4012,

2003 WL 22533454, at *2 (7th Cir. Nov. 10, 2003), in

September 2000, Congress attempted to reinstate RFRA’s

protection against government burdens on religious

exercise imposed by states and localities by enacting the

courts customarily apply to prison regulations, however, does not operate

to prevent legislative bodies from adopting a more searching standard.

App. 8

Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc et seg. This statute mir-

rored the provisions of RFRA, but its scope was limited to

laws and regulations concerning land use and institution-

alized persons. See 42 U.S.C. § 2000cc-1(a). RLUIPA’s

enactment was premised on congressional findings similar

to those made for RFRA, namely, that in the absence of

federal legislation, prisoners, detainees, and institutional-

ized mental health patients faced substantial burdens in

practicing their religious faiths. See Joint Statement of

Senator Hatch and Senator Kennedy, 146 Cong. Rec.

S7774-01 (daily ed. July 27, 2000).

In passing RLUIPA, Congress sought to avoid Boerne’s

constitutional barrier by relying on its Spending and

Commerce Clause powers, rather than on its remedial

powers under section 5 of the Fourteenth Amendment as it

had in RFRA. See 42 U.S.C. § 2000cc-1(b)(1) (establishing

that Section 3 of RLUIPA applies whenever the burden at

issue “is imposed in a program or activity that receives

Federal financial assistance”); 42 U.S.C. § 2000cc-1(b)(2)

(establishing that section 3 of RLUIPA applies in cases in

which “the substantial burden [on religion] affects, or

removal of that substantial burden would affect, commerce

with foreign nations, among the several States, or with

Indian tribes”).

IT.

Among its numerous constitutional challenges to

RLUIPA, the Commonwealth contends that the statute

violates the Establishment Clause. The district court held

that section 3 of RLUIPA violates the Establishment

Clause because it singled out the religious exercise rights

App. 9

of prisoners for special protection. The district court

explained:

Prison inmates exist in a society of universally

limited rights, one that is required by the nature

of the institution. When Congress acts to lift the

limitations on one right while ignoring all others,

it abandons a position of neutrality towards

these rights, placing its power behind one system

of belief.

Madison, 240 F. Supp. 2d at 577. The district court stated

that “the practical effect of RLUIPA on the prison system

in the United States is to grant religious and professed

religious inmates a multitude of exceptions and benefits

not available to non-believers.” Jd. at 580. It concluded

that “RLUIPA extends far beyond regulations targeting

religion, protecting religious inmates against even generally

applicable and facially neutral prison regulations that

have a substantial effect on a multitude of fundamental

rights.” Jd. at 575-76. |

Because Congress had failed to compile “demonstrable

evidence that religious constitutional rights are at any

greater risk of deprivation in the prison system than other

fundamental rights,” id. at 575, the district court found

that protecting the religious exercise of prisoners violated

the Establishment Clause. It concluded that this provision

sends “non-religious inmates a message that they are

outsiders of a privileged community,” id. at 580, and it

unconstitutionally advanced religion by providing an

inmate with incentives to “claim religious rebirth and

cloak himself in the protections of RLUIPA.” Id.

The district court’s decision is at odds with two other

circuits that have examined this question and found that

App. 10

section 3 of RLUIPA does not violate the Establishment

Clause. See, e.g., Charles v. Verhagen, No. 02-3572, 2003

WL 22455960, at *6-7 (7th Cir. Oct. 30, 2003); Mayweath-

ers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir. 2002),

cert. denied, No. 02-1655, 2003 WL 21180348 (U.S. Oct. 6,

2003); see also Williams v. Bitner, No. CV-01-2271, 2003

WL 22272302, at *4-5 (M.D. Pa. Sept. 30, 2003). Courts

have also rejected similar Establishment Clause chal-

lenges to the Religious Freedom Restoration Act, whose

religious accommodation provisions are identical to section

3 of RLUIPA. See, e.g., In Re Young, 141 F.3d 854, 862-63

(8th Cir. 1998); Mockaitis v. Harcleroad, 104 F.3d 1522,

1530 (9th Cir. 1997); Sasnett v. Sullivan, 91 F.3d 1018,

1022 (7th Cir. 1996); EEOC v. Catholic. Univ. of Am., 83

F.3d 455, 470 (D.C. Cir. 1996); Flores v. City of Boerne, 73

F.3d 1352, 1364 (5th Cir. 1996), rev’d on other grounds, 521

U.S. 507 (1997). One circuit court, however, has relied

extensively upon the district court’s decision in this case to

hold that section 3 of RLUIPA does violate the Establish-

ment Clause. See Cutter v. Wilkinson, No. 02-3270, 2003

WL 22513973, at *4-9 (6th Cir. Nov. 7, 2003). It is this

conclusion that we must address with care.

This court must review de novo the constitutionality

of a federal law. See United States v. Buculei, 262 F.3d 322,

327 (4th Cir. 2001); Farmer v. Employment Security

Commission of North Carolina, 4 F.3d 1274, 1279 (4th Cir.

1993). The basic framework for Establishment Clause

challenges is well-settled: “first the [targeted] statute

must have a secular legislative purpose; second, its princi-

pal or primary effect must be one that neither advances

nor inhibits religion; finally, the statute must not foster an

excessive government entanglement with religion.” Lemon

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

Bi iad eee:

Ade Haar cree See ~ y

PRAT ort

App. 11

quotations omitted). We address each of the three Lemon

prongs in turn.

We first consider whether section 3 of RLUIPA has a

legitimate secular purpose. Lemon, 403 U.S. at 612-13. We

are guided here by the Supreme Court’s decision in Corpo-

ration of the Presiding Bishop v. Amos, which established

that Congress may accommodate the exercise of faith by

lifting government-imposed burdens on free exercise. 483

U.S. 327, 335 (1987). The Amos Court stated that the

Establishment Clause seeks to prevent government

decisionmakers “from abandoning neutrality and acting

with the intent of promoting a particular point of view in

religious matters.” Jd. But in commanding neutrality, the .

Establishment Clause does not require the government to

be oblivious to the burdens that state action may impose

upon religious practice and belief. Rather, there is “ample

room under the Establishment Clause for ‘benevolent

neutrality which will permit religious exercise to exist

without sponsorship and without interference.’” Board of

Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.

687, 705 (1994) (quoting Amos, 483 U.S. at 334). The

Supreme Court therefore held in Amos that “it is a per-

missible legislative purpose to alleviate significant gov-

ernmental interference with the ability of religious

organizations to define and carry out their religious

missions.” Amos, 483 U.S. at 335.

This alleviation of government burdens on prisoners’

religious exercise is precisely the legitimate secular

purpose that RLUIPA seeks to advance. RLUIPA is not

designed to advance a particular religious viewpoint or

App. 12

even religion in general, but rather to facilitate opportuni-

ties for inmates to engage in the free exercise of religion.

This secular goal of exempting religious exercise from

regulatory burdens in a neutral fashion, as distinguished

from advancing religion in any sense, is indeed permissi-

ble under the Establishment Clause. See id.

To be sure, Congress has no constitutional duty to

remove or to mitigate the government-imposed burdens on

prisoners’ religious exercise. See O’Lone v. Estate of Sha-

bazz, 482 U.S. 342, 349-50 (1987). But the Supreme Court

has held that Congress may choose to reduce government-

imposed burdens on specific fundamental rights when it

deems it appropriate. The Supreme Court “has upheld a

broad range of statutory religious accommodations against

Establishment-Clause challenges.” Brown v. Gilmore, 258

F.3d 265, 275 (4th Cir. 2001). These include statutes that

allow public school students time off during the day solely

for religious worship or instruction, see Zorach v. Clauson,

343 U.S. 306, 315 (1952), property tax exemptions for

religious properties used solely for religious worship, see

Walz v. Tax Commission, 397 U.S. 664, 680 (1970), and

exemptions for religious organizations from statutory

prohibitions against discrimination on the basis of relig-

ion, see Amos, 483 U.S. at 335. While RLUIPA’s scope may

in some ways be broader than the specific religious excep-

tions that the Supreme Court has previously upheld, the

central principle — that Congress may legitimately mini-

mize government burdens on religious exercise — remains

the same. Congress here has acted properly in embracing

this secular purpose.

App. 13

We next consider whether section 3 of RLUIPA has the

impermissible effect of advancing religion. See Lemon, 403

U.S. at 612-13. The district court found that RLUIPA

impermissibly advanced religion by according special

protection only to prisoners’ religious exercise. The district

court stated:

The singling out of religious belief as the one

fundamental right of prisoners deserving of legis-

lative protection rejects any notion of congres-

sional neutrality in the passage of RLUIPA.

In the absence of any proof that religious rights

are more at risk in prison than other fundamen-

tal rights, and with the knowledge that strict

scrutiny is not required to protect the religious

belief of prisoners under the Free Exercise

Clause, Congress acted only to protect religious

rights. Such an action, while labeled a neutral

“accommodation,” is not in fact neutral at all,

and the Court is not allowed to defer to the mere

characterization of RLUIPA as such.

Madison, 240 F.Supp.2d at 576.

We disagree. “For a law to have forbidden ‘effects’

under Lemon, it must be fair to «ay that the government

itself has advanced religion threwa its own activities and

influence.” Amos, 483 U.S. at 35/ (emphasis in original).

Evidence of the impermissible government advancement of

religion includes “sponsorship, financial support, and

active involvement of the sovereign in religious activity.”

Walz, 397 U.S. at 668. Here, however, Congress has not

sponsored religion or become actively involved in religious

activity, and RLUIPA in no way is attempting to indoctri-

nate prisoners in any particular belief or to advance

App. 14

religion in general in the prisons. Congress has simply

lifted government burdens on religious exercise and

thereby facilitated free exercise of religion for those who

wish to practice their faiths.

We cannot acce,t the theory advanced by the district

court that Congress impermissibly advances religion when

it acts to lift burdens on religious exercise yet fails to

consider whether other rights are similarly threatened.

Madison, 240 F. Supp. 2d at 577; see also Cutter v. Wilkin-

son, No. 02-3270, 2003 WL 22513973, at *7-8 (6th Cir. Nov.

7, 2003). There is no requirement that legislative protec-

tions 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. Amos clearly established that “where,

as here, government acts with the proper purpose of lifting

a regulation that burdens the exercise of religion, we see

no reason to require that the exemption comes packaged

with benefits to secular entities.” Amos, 483 U.S. at 338.

The district court attempted to distinguish Amos from

the present case by stating that in Amos, Congress had

found that Title VII’s prohibitions on hiring or firing on

the basis of religion had a much greater effect on religious

groups than on secular organizations. Madison, 240 F.

Supp. 2d at 577 n. 9. While congressional supporters of

RLUIPA also emphasized the “egregious and unnecessary”

burdens that prison regulations impose on religious

exercise, the district court concluded that the restrictions

inherent in prison life could not help but burden other

fundamental rights as well. Jd. at 575. The district court

thus concluded that “when Congress acts to lift limitations

App. 15

on one right while ignoring all others, it abandons neutral-

ity towards these rights, placing its power behind one

system of belief.” Jd. at 577.

The Establishment Clause’s requirement of neutrality

does not mandate that when Congress relieves the bur-

dens of regulation on one fundamental right, that it must

similarly reduce government burdens on all other rights.

Amos stands, as we ‘iave noted, for the simple proposition

that Congress can intervene to lift governmental burdens

on religious exercise. The Amos decision does not at all

indicate that Congress must examine how or if any other

fundamental rights are similarly burdened. The Amos

Court in no way made its ruling turn on a congressional

finding that religious exercise was threatened more by the

application of Title VII than were other rights. It is doubtful

' that such congressional findings — a compilation of evi-

dence on how all fundamental rights would or would not

be affected by Title VII — even existed. Regardless, such a

heightened standard for congressional action was not part

of the inquiry in Amos.’

Indeed, the context in which Congress was acting

made it sensible for Congress to lift only state-imposed

burdens on free exercise through RLUIPA. It was reason-

able for Congress to seek to reduce the burdens on

* Aconcurrence in City of Boerne v. Flores admittedly states a view

related to that of the district court. 521 U.S. at 536-37 (Stevens, J.,

concurring) (holding that the Religious Freedom Restoration Act

provides religious groups “with a legal weapon that no atheist or

agnostic can obtain” and thus constitutes a “governmental preference

for religion, as opposed to irreligion”). This view, however, has not been

adopted by the Supreme Court.

App. 16

religious exercise for prisoners without simultaneously

enhancing, say, an inmate’s First Amendment rights to

access pornography. Free exercise and other First

Amendment rights may be equally burdened by prison

regulations, but the Constitution itself provides religious

exercise with special safeguards. And no provision of the

Constitution even suggests that Congress cannot single

out fundamental rights for additional protection. To

attempt to read a requirement of symmetry of protection

for fundamental liberties would not only conflict with all

binding precedent, but it would also place prison adminis-

trators and other public officials in the untenable position

of calibrating burdens and remedies with the specter of

judicial second-guessing at every turn.

Apart from advancing religion, the district court

further found that RLUIPA may create incentives for

secular prisoners to cloak secular requests in religious

garb and thus may increase the burden on state and local

officials in processing RLUIPA claims. See Madison, 240 F.

Supp. 2d at 580. This may be true, but it is simply not a

concern under the Establishment Clause. Any additional

burdens that RLUIPA may impose on states and localities

speak more to the wisdom of the law and to the disincen-

tives for states to assume their RLUIPA obligations than

to RLUIPA’s validity under the Establishment Clause. We

therefore conclude that section 3 of RLUIPA has the effect

of lifting burdens on prisoners’ religious exercise, but does

not impermissibly advance religion.

We further conclude that section 3 of RLUIPA does not

create excessive government entanglement with religion in

ih detec pleads pale eel eh eRe a Pe bet Ne eae NAS I ENE (BE Oa ® *

App. 17

violation of the third prong of the Lemon test. See Lemon,

403 U.S. at 612-13; see also Agostini v. Felton, 521 U.S.

203, 232-35 (1997) (suggesting that the effects and entan-

glement prongs of Lemon focus on substantially the same

factors). While the statute may require some state action

in lifting state-imposed burdens on religious exercise,

RLUIPA does not require “pervasive monitoring” by public

authorities. Agostini v. Felton, 521 U.S. at 233-34; see also

Mayweathers v. Newland, 314 F.3d 1062, 1069 (9th Cir.

2002). RLUIPA itself minimizes the likelihood of entan-

glement through its carefully crafted enforcement provi-

sions. For example, the statute’s broad definition of

“religious exercise” to “include any exercise of religion,

whether or not compelled by, or central to, a system of

religious belief,” 42 U.S.C. § 2000cc-5(7)(A), mitigates any

dangers that entanglement may result from administra-

tive review of good-faith religious belief.

Section 3 of RLUIPA thus satisfies the three prongs of

the Lemon test. The opposite conclusion, we believe, would

work a profound change in the Supreme Court’s Estab-

lishment Clause jurisprudence and in the ability of Con-

gress to facilitate the free exercise of religion in this

country. It would throw into question a wide variety of

religious accommodation laws. It could upset exemptions

from compulsory military service for ordained ministers

and divinity students under federal law, since these

exemptions are not paired with parallel secular allowances

or provisions to protect other fundamental rights threat-

ened by compulsory military service. See 50 U.S.C. App.

§ 456(g) (2000). It would similarly imperil Virginia's and

other states’ recognition of a “clergy-penitent privilege,”

App. 18

which exempts from discovery an individual’s statements

to clergy when “seeking spiritual counsel and advice.” See,

e.g., Va. Code Ann. §§ 8.01-400, 19.2-271.3 (2000). Other

specific religious accommodation statutes, ranging from

tax exemptions to exemptions from compulsory public

school attendance, see, e.g., Va. Code Ann. § 22.1-254(B)

(2000), would also be threatened.

Perhaps more importantly, the principle of neutrality

advanced by the district court would create a test that

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

regulatory burdens on religious entities or individuals. For

example, if Congress sought to grant religious organiza-

tions an exemption from a particularly demanding legal

requirement, then Congress might have to grant similar

exemptions to radio and TV stations or secular advocacy

- groups, absent congressional findings that free exercise

rights were somehow more endangered by the law than

other rights. Congress would have to make determinations

in every instance of what fundamental rights are at risk

and to what degree they are at risk, and it would be able

only to heighten protection for fundamental rights in a

symmetric fashion according to these assessments. The

byzantine complexities that such compliance would entail

would likely cripple government at all levels from provid-

ing any fundamental rights with protection above the

Constitution’s minimum requirements.

ITI.

The Commonwealth recognized at argument the

problematic nature of the trial court’s rationale, but

pressed several alternative points in support of affirmance

ee ee ee

App. 19

which we feel obliged to address. It first contends that

RLUIPA’s mandate for the religious accommodation of

prisoners violates the Establishment Clause because it

subjects third parties to substantial burdens. The Com-

monwealth relies primarily on Estate of Thornton v.

Caldor, Inc., 472 U.S. 703, 710-11 (1985), for this conten-

tion. In Caldor, a Connecticut statute required employers

to excuse employees from work on whatever day the

employee designated as his Sabbath. Jd. at 708. Impor-

tantly, that statute mandated the accommodation of the

religious needs of not only state employees, but also

private employees. The Supreme Court struck the statute

down on Establishment Clause grounds because it imposed

significant burdens on private employers by requiring

them to lift privately-imposed burdens on religious exer-

cise. Id. at 708-10.

It is true that section 3 of RLUIPA also seeks to have

third parties — states accepting federal correctional funds

— accommodate religious needs. But any comparison

between RLUIPA and the statute in Caldor ends there:

Caldor concerned an unfunded mandate imposed on

private employers to lift privately-imposed burdens on the

religious exercise of employees. Here the Commonwealth

has voluntarily committed itself to lifting government-

imposed burdens on the religious exercise of publicly

institutionalized persons in exchange for federal correc-

tional funds. These distinctions make the Common-

wealth’s reliance on Caldor unpersuasive.

The Commonwealth also protests that RLUIPA’s

compelling interest test will bind its hands and make it

App. 20

nearly impossible for the Commonwealth to prevail if

prisoners challenge burdens on their religious exercise.

The district court echoed this concern by proclaiming that

“the change that RLUIPA imposes is revolutionary, switch-

ing from a scheme of deference to prison administrators to

one of presumptive unconstitutionality.” Madison, 240 F.

Supp. 2d at 575.

We do not make light of this concern. RLUIPA may

impose burdens on prison administrators as they act to

accommodate an inmates’ right to free exercise. But

RLUIPA still affords prison administrators with flexibility

to regulate prisoners’ religious practices if the Common-

wealth “demonstrates that imposition of the burden on that

person — (1) is in furtherance of a compelling government

interest; and (2) is the least restrictive means of furthering

that compelling government interest.” 42-U.S.C. §-2000cc-

1(a).

Moreover, the experience of federal correctional

officials in complying with RLUIPA’s predecessor statute,

RFRA, suggests that the similar provisions of RLUIPA

would not impose an unreasonable burden on state or local

prisons. In the cases litigated under RFRA, federal correc-

tional officials have continued to prevail the overwhelming

majority of the time. See Developments in the Law -

Religious Practice in Prison, 115 Harv. L. Rev. 1891, 1894

(2002). This fact suggests that RLUIPA should not ham-

string the ability of the Commonwealth’s correctional

officials to ensure order and safety in the Commonwealth’s

prisons.

Admittedly, prison administrators’ litigation successes

may obscure the extent to which RLUIPA provides incen-

tives for administrators to accommodate religious needs

App. 21

before litigation. But there is little empirical evidence from

the federal government’s experience under RFRA to

suggest that the Commonwealth’s compliance with

RLUIPA will prove unworkable. And if it does, the Com-

monwealth at any time can decline the federal govern-

ment’s correctional funding. State legislators or

administrators may weigh the burdens and benefits of

RLUIPA and reject the federal funding if the tie-in of

religious accommodation is not worth the financial bene-

fits. In the final analysis, however, practical difficulties

speak more to the wisdom of the legislation than to the

precise Establishment Clause challenge under review in

this appeal.

IV.

Our society has a long history of accommodation with

respect to matters of belief and conscience. If Americans

may not set their beliefs above the law, there must be

room to accommodate belief and faith within the law. See

Smith, 494 U.S. at 878-79. Regardless of the nature of

their beliefs, people must pay taxes and observe other

secular laws of general applicability. See Minersville

School Dist. v. Gobitis, 310 U.S. 586, 594-95 (1940). How-

ever, legislative bodies have every right to accommodate

free exercise, so long as government does not privilege any

faith, belief, or religious viewpoint in particular. Board of

Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 US.

687, 696-97 (1994). Section 3 of RLUIPA fits comfortably

within this broad tradition.

We thus cannot find that section 3 of RLUIPA creates

an Establishment Clause violation. We address here only

the Establishment Clause challenge to RLUIPA. The

Commonwealth has challenged the statute on a variety of

App. 22

other grounds, namely that it exceeds Congress’s authority

under the Spending and Commerce Clauses and that it

runs afoul of the Tenth and Eleventh Amendments. We do

not address these issues in this interlocutory appeal

because the district court has not yet had sufficient oppor-

tunity to consider them. The Commonwealth also argues

that it retains the exclusive authority to regulate in a zone

of discretion between what the Establishment Clause

prohibits and what the Free Exercise Clause requires.

Although couched in religious terms, this is really a

variant of the Commonwealth’s many federalism-based or

residual power contentions, which we have left to the

district court on remand.

The judgment is therefore reversed, and the case is

remanded to the district court for further proceedings.

REVERSED AND REMANDED

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

IRA W. MADISON _ ) Civ. No. 7:01CV00596

Plaintiff, MEMORANDUM OPINION

v. ) By: James C. Turk

R. RITER, et al ) Senior United States District Judge

Defendants. ) (Filed Jan. 23, 2003)

Plaintiff, Ira W. Madison, is an inmate under the

supervision of the Virginia Department of Corrections

seeking relief under the First Amendment and the Re!:-

gious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), 42 U.S.C. § 2000cc-1 (2002), for the alleged

violation of his right to free exercise of religion. In an

August 23, 2002 opinion, the Court denied summary

judgment on the Plaintiff’s First Amendment claim,

holding that there was a material factual dispute concern-

ing the sincerity of the Plaintiff’s religious beliefs. The

Court also denied qualified immunity to the Defendants,

finding that the constitutional standards governing the

Defendants’ conduct were clearly established.

The Court took Plaintiff’s RLUIPA claim under

advisement until the constitutionality of the Act could be

briefed and argued. The Court heard oral arguments from

the parties and the United States Government as inter-

vener, and the Defendants’ Motion to Dismiss the Plain-

tiff’s RLUIPA claim on the basis that the Act violates the

United States Constitution is ripe for resolution.

App. 24

The facts of the present case are explained in detail in

the Court’s August 23, 2002, opinion. For purposes of this

motion, a short review of the facts is appropriate. The

Plaintiff claims to be a member of a particular sect of the

Hebrew Israelite faith, based out of the Beth El Temple in

Norfolk [sic], Virginia. The Plaintiff argues that his faith

requires him to consume a kosher diet, provided by the

Department of Corrections in particular prison facilities

under the name “Common Fare Diet.”

The Plaintiff first requested the Common Fare Diet on

July 27, 2000, while an inmate at Greenville Correctional

Center. Local officials at the facility approved the request,

but Central Classifications Services (“CCS”), a Richmond-

based agency of the Virginia Department of Corrections

which must review all such requests, overturned the

approval upon the belief that Plaintiff had no compelling

religious reason to participate in the diet, that he could

satisfy his dietary needs from the regular food line, and

that he had not shown a sincere belief in his religion.

Plaintiff made a second request for the diet after his

transfer to Bland Correction Center in March of 2001.

Again, local officials approved the request but CCS re-

versed the decision and denied Plaintiff the diet. After his

administrative appeals were denied within the prison

system, the Plaintiff filed this suit on August 6, 2001. |

The History of RLUIPA

On April 17, 1990, the Supreme Court of the United

States decided Employment Division, Dept. of Human

Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct.

App. 25

1595, 108 L. Ed. 2d 8576 (1990), holding that the right of

free exercise did not “relieve an individual of the obligation

to comply with a ‘valid and neutral law of general applica-

bility on the ground that the law proscribes (or prescribes)

conduct that his religion prescribes (or proscribes).’” Id. at

879, 110 S. Ct. at 1600. The Court clarified existing free

exercise precedent by rejecting the applicability of the test

developed in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct.

1790, 10 L. Ed. 2d 965 (1963) and Wisconsin v. Yoder, 406

U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), which

established a strict scrutiny level of review for governmen-

tal actions that “substantially burden a religious practice,”

in the context of generally applicable laws. Sherbert, 374

U.S. at 402-03, 83 S. Ct. at 1792-94. The Court was not

concerned about the possible discriminatory effect of its

decision on religious belief, reasoning that narrow and

constitutional exemptions would be provided by Congress

and state legislatures when necessary to protect religion.

Smith, 494 U.S. at 890, 110 S. Ct. at 1606.

The Court’s prediction was fulfilled, and perhaps

exceeded in degree, just three years later, when Congress

passed the Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. § 2000bb (2002). The stated purpose

of the Act is to “restore the compelling interest test as set

forth in Sherbert v. Verner and Wisconsin v. Yoder and to

guarantee its application in all cases where free exercise of

! The Court was concerned about the dangerous effect that the

application of strict scrutiny would have in invalidating generally

applicable laws, as the power that the test would grant to a religious

individual would allow the believer “to become a law unto himself,” in

contradiction of “both constitutional tradition and common sense.”

Smith, 494 U.S. at 885, 110 S. Ct. at 1603.

App. 26

religion is substantially burdened.” 42 U.S.C.

§ 2000bb(b)(1). The Act consequently forbids the govern-

ment from substantially burdening a person’s exercise of

religion, even in the case of generally applicable laws,

unless the government can demonstrate that the burden is

in furtherance of a compelling governmental interest and

is the least restrictive means of furthering that interest.

Id. § 2000bb-1(b).

The back-and-forth between Congress and the Su-

preme Court on the applicability of the Sherbert strict

scrutiny test to laws of general applicability continued in

1997 when a challenge to the constitutionality of RFRA

reached the Supreme Court in City of Boerne v. Flores, 521

U.S. 507, 117 S. Ct. 2157, 1388 L. Ed. 2d 624 (1997). Writ-

ing for a majority of the Court, Justice Kennedy held the

Act unconstitutional as a violation of Congress’s powers

under §5 of the Fourteenth Amendment. Jd. Justice

Stevens, concurring with the majority’s opinion, wrote

separately to voice his opinion that RFRA also violated the

Establishment Clause of the First Amendment. Jd. at 536-

37, 117 S. Ct. at 2172. The reach of the Supreme Court’s

decision in City of Boerne has been the subject of much

debate in the lower courts, as courts have disagreed as to

whether City of Boerne invalidated RFRA as a whole or

merely as it pertained to the states under § 5 of the Four-

teenth Amendment. Compare Young v. Crystal Evangelical

Free Church, 141 F.3d 854 (8th Cir. 1998) (concluding that

RFRA was only declared unconstitutional as it applies to

the states), with United States v. Sandia, 6 F. Supp.2d

1278 (D. N.M. 1997) (holding that the Court in City of

Boerne held RFRA unconstitutional in its entirety). How-

ever, despite this confusion, it was clear in City of Boerne

that the Court was continuing to resist the application of

App. 27

the Sherbert strict scrutiny test to allow individuals to

avoid burdens imposed on religious belief by generally

applicable laws. After City of Boerne, it was once again up

to Congress to try and fashion such an exemption in a

constitutional manner.

The Religious Land Use and Institutionalized Persons

Act of 2000 represents Congress’s attempt to reestablish

RFRA’s strict scrutiny standard while avoiding the consti-

tutional infirmities that led to the invalidation of RFRA.

Congress narrowed the reach of the strict scrutiny test in

RLUIPA to zoning ordinances and institutionalized per-

sons and avoided § 5 of the Fourteenth Amendment as the

source of its authority to act, opting instead to use the

Spending Power and the Commerce Clause. 42 U.S.C.

§ 2000cc-1(b)(1) & (2). At the same time, Congress made no

changes to RFRA’s strict scrutiny test, merely adopting the

test in RLUIPA. Section 2000cc-1(a) of the Act, the section

covering the claims of prison inmates, reads as follows:

No government shall impose a substantial bur-

den on the religious exercise of a person residing

in or confined to an institution, as defined in sec-

tion 1997 of this title, even if the burden results

from a rule of general applicability, unless the

government demonstrates that imposition of the

burden on that person —

(1) is in furtherance of a compelling gov-

ernmental interest; and

(2) is the least restrictive means of further-

ing that compelling governmental interest.

RLUIPA requires the inmate to bear the burden of persua-

sion concerning the substantial burden imposed on his

religious exercise, and then, as in any strict scrutiny case,

App. 28

the government bears the burden of persuasion on the

remaining elements of the test. Id. § 2000cc-2(b).’

The match between the judiciary and the legislature

over the use of the Sherbert test continues to play out, as

the question of the constitutionality of RLUIPA is pres-

ently before this Court. The answer to this question

depends on the ability of Congress to cure the constitu-

tional problems presented by RFRA in passing RLUIPA,

despite the Supreme Court’s strong suggestion in City of

Boerne that the strict scrutiny test imposed by RFRA and

RLUIPA has constitutional problems independent of

Congress’s power to enact such a statute.

Ill

The Constitutionality of RLUIPA

The Defendants claim that RLUIPA exceeds Con-

gress authority under the Spending and Commerce

Clauses, and violates the Tenth Amendment, Establish-

ment Clause, and the Separation of Powers. The Defen-

dants’ claims have been rejected by the few courts that

have reviewed the constitutionality of RLUIPA. See

Mayweathers v. Newland, 258 F.3d 930, 2002 WL 31875409

* The Plaintiff meets the substantial burden threshold under

RLUIPA. The Plaintiff claims that a Kosher diet is mandated by his

religion. In its August 23 opinion, the Court reserved for trial the issue

of Plaintiff’s sincerity of belief. Assuming that the Plaintiff’s belief is

sincere, prohibiting him from receiving the diet places a substantial

burden on his religious exercise. As the Court’s August 23 opinion

explains, the Defendants have failed to prove as a matter of law that

there is a rational reason for denying the diet, let alone a compelling

one.

* ne eee .

App. 29

(9th Cir. 2002), aff’g Mayweathers v. Terhune, 2001 U.S.

Dist. LEXIS 22300, 2001 WL 804140 (E.D. Cal.); Johnson

v. Martin, 223 F. Supp.2d 820 (W.D. Mich. 2002); Charles

v. Verhagen, 220 F. Supp.2d 955 (W.D. Wis. 2002);

Gerhardt v. Lazaroff, 221 F. Supp.2d 827 (S.D. Ohio 2002).

However, the backdrop of authority is not as unanimous in

support of RLUIPA as it might seem. Several judges have

come to the conclusion that the Supreme Court’s invalida-

tion of RFRA in City of Boerne extended beyond §5 to

condemn any use of the Sherbert strict scrutiny test as a

violation of the Separation of Powers or the Establishment

Clause. See, e.g., Sandia, 6 F. Supp.2d 1278 (“City of Boerne

stands ... for the proposition that in setting out to replace

the constitutional test of Smith with one demanding

higher scrutiny, Congress impermissibly crossed into the

judiciary’s Article III territory.”); Warner v. City of Boca

Raton, 64 F. Supp.2d 1272 (S.D. Fla. 1999) (citing Justice

Stevens’ concurrence in City of Boerne for the proposition

that RFRA “evidences a preference for religion which argua-

bly runs afoul of the Establishment Cl::use of the First

Amendment.”); Young v. Crystal Evangelical Fr-° Church,

141 F.3d 854 (8th Cir. 1998) (Bogue, S.J., dissenting) ‘“I

would hold that RFRA is unconstitutional even as app! «d

to federal law, and on that basis affirm the district court. .

The United States disagrees with the courts that have

interpreted City of Boerne broadly to invalidate any

application of strict scrutiny to laws of general applicabil-

ity and argues that the narrower reach of RLUIPA and its

passage under the Spending and Commerce Clause cured

the infirmities that rendered RFRA unconstitutional. With

due respect to the courts that have found RLUIPA consti-

tutional, this Court is of the opinion that RLUIPA’s

application of the Sherbert strict scrutiny standard to the

App. 30

free exercise claims of religious inmates is a clear violation

of the Establishment Clause, having the primary effect of

advancing religion above other fundamental rights and

conscientious beliefs.*

The Establishment Clause

The First Amendment to the Constitution provides

that “Congress shall make no law respecting an estab-

lishment of religion.” This language has been interpreted

by the Supreme Court to guard against laws that promote

all religions equally, in addition to laws that attempt to

promote one particular religion over all others. See Bd. of

Educ. of Kiryas Joel Village School Dist. v. Grumet, 512

U.S. 687, 696, 114 S. Ct. 2481, 2487, 129 L. Ed. 2d 546

(1994); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 8, 109 S.

Ct. 890, 896, 103 L. Ed. 2d 1 (1989); Everson v. Bd. of

Educ. of Ewing Township, 330 U.S. 1, 15, 67 S. Ct. 504,

511, 91 L. Ed. 711 (1947) (“Neither a state nor a Federal

government ... can pass laws which aid one religion, aid

all religions, or prefer one religion over another.”). The

Establishment Clause requires the courts to be vigilant

against establishments, as “[a] law ‘respecting’ the pro-

scribed result, that is, the establishment of religion, is not

always easily identifiable as one violative of the Clause. A

* In this opinion, the Court addresses 42 U.S.C. § 2000cc-1, the

section of RLUIPA pertaining to institutionalized persons and,not the

portions of RLUIPA dealing with zoning laws.

App. 31

given law might not establish a state religion but never-

theless be one ‘respecting’ that end in the sense of being a

step that could lead to such establishment and hence

offend the First Amendment.” Lemon v. Kurtzman, 403

U.S. 602, 612, 91 S. Ct. 2105, 2112, 29 L. Ed. 2d 745

(1971).

However, vigilance is not synonymous with antipathy.

The so-called wall that separates church and state is

anything but impenetrable, as total separation has been

recognized by the Supreme Court and Fourth Circuit to be

a mythical, and perhaps dangerous, objective. See Lynch v.

Donnelly, 465 U.S. 668, 672, 104 S. Ct. 1355, 1359, 79 L.

Ed. 2d 604 (1984); Lemon, 403 U.S. at 614, 91S. Ct. at

2112: Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir. 2001).

Due to the counter-pressures asserted by the interplay of

the Establishment and Free Exercise Clauses, it is per-

missible, and sometimes required, for Congress to legislate

with respect to religion. See Corp. of the Presiding Bishop

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

483 U.S. 327, 335, 107 S. Ct. 2862, 2867, 97 L. Ed. 2d 273

(1987); Texas Monthly, 489 U.S. at 10, 109 S. Ct. at 897

(1989); Lynch, 465 U.S. at 673, 104 S. Ct. at 1359.

Congress is not without any guidelines to act in the

area of religious belief, however, as the Supreme Court has

established as a fundamental requirement of the Religion

Clauses the necessity of legislative neutrality towards

religious belief. Agostini v. Felton, 521 U.S. 203, 117 S. Ct.

1997, 2014, 138 L. Ed. 2d 391 (1997); Rosenberger v. Rector

and Visitors of the University of Va., 515 U.S. 819, 846, 115

S. Ct. 2510, 2525, 132 L. Ed. 2d 700 (1995) (O’Connor, J.,

concurring) (“Neutrality, in both form and effect, is one

hallmark of the Establishment Clause.”); Kiryas Joel, 512

U.S. at 705, 114 S. Ct. at 2492 (stating that the Religion

App. 32

Clauses “command|[] neutrality”); Wallace v. Jaffree, 472

U.S. 38, 50, 60, 105 S. Ct. 2479, 2486, 2491, 86 L. Ed. 2d

29 (1985); Comm. for Public Educ. and Religious Liberty v.

Nyquist, 413 U.S. 756, 792-93, 93 S. Ct. 2955, 2975, 37 L.

Ed. 2d 948 (1973) (“A proper respect for both the Free

Exercise and the Establishment Clauses compels the State

to pursue a course of ‘neutrality toward religion.”). The

concept of neutrality is often ill-defined in case law, but

the Supreme Court has explained that, at the least,

neutrality compels the state to act with equal regard to

each fundamental freedom guaranteed by the First

Amendment, placing no right above or below another. See

Wallace, 472 U.S. at 50, 105 S. Ct. at 2486 (“‘If by this

position appellant seeks for freedom of conscience a

broader protection than for freedom of the mind, it may be

doubted that any of the great liberties insured by the First

Article can be given higher place than the others. All have

preferred position in our basic scheme.’” (quoting Prince uv.

Mass., 321 U.S. 158, 164, 64 S. Ct. 438, 441, 88 L. Ed. 645

(1944)).

Neutrality is an effective guideline for constitutional

state action, because it incorporates the concept of “be-

nevolent neutrality,” recognizing that government may

provide benefits to religion with facially neutral exemp-

tions and benefits. See Kiryas Joel, 512 U.S. at 705, 114 S.

Ct. at 2492: Amos, 483 U.S. at 334, 107 S. Ct. at 2867-68.

Therefore, a governmental accommodation of religious

exercise, such as the one provided by RLUIPA, is not per se

invalid as an establishment of religion despite granting

protections going beyond what the Free Exercise Clause

would otherwise require. See Amos, 483 U.S. at 334, 107 S.

Ct. at 2867. The question for a court in analyzing the

constitutionality of an accommodation of religion is

App. 33

whether the accommodation goes too far in protecting

religious belief and devolves into “an unlawful fostering of

religion.” Jd. at 334-35, 2868.

The answer to this question, often an unclear and

ambiguous inquiry, can be sharpened somewhat by the use

of the three-part inquiry established in Lemon v. Kurtz-

man, 403 U.S. 602, 91S. Ct. 2105. In Lemon, the Supreme

Court delineated three tests for a court to use in deciding

whether a particular statute is constitutional under the

Establishment Clause: (1) “The statute must have a

secular legislative purpose; (2) its principal or primary

effect must be one that neither advances nor inhibits

religion; (3) the statute must not foster ‘an excessive

government entanglement with religion.’” Jd. at 612-13,

2111. In Agostini v. Felton, the Court simplified the test,

suggesting that a court’s inquiry under the second and

third prongs of the Lemon inquiry was substantially the

same, and placing the search for excessive entanglement

under the inquiry into impermissible effects. 521 U.S. 203,

232-33, 138 L. Ed. 2d 391, 117 S. Ct. 1997, 2015.

In evaluating the constitutionality of congressional

action under the Lemon inquiry, the search for impermis-

sible effects and excessive entanglement has often proved

to be the most critical test. See, e.g., Estate of Thornton, v.

Caldor, Inc., 472 U.S. 793, 105 S. Ct. 2914, 86 L. Ed. 2d

557 (1985); Nyquist, 413 U.S. 756, 93 S. Ct. 2955; Lemon,

403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745. It is this

aspect of the inquiry that sheds light on the greatest

Establishment Clause problems presented by RLUIPA,

App. 34

and it will therefore be the focus of the Court’s constitu-

tional analysis.*

The Principal and Primary Effect of RLUIPA

is to Advance Religion by Elevating Religious

Rights Above All Other Fundamental Rights

In 1987, the Supreme Court, in two landmark deci-

sions, developed a “rational-relationship” test to govern an

inmate’s claim that a prison regulation or action of a

prison administrator burdens his constitutional rights. See

Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d

64, and O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.

Ct. 2400, 96 L. Ed. 2d 282.° The test requires a court, in

*“ The search for a secular purpose is not a particularly strict

inquiry, as the secular purpose prong can be satisfied even if legislation

is motivated in part by a religious purpose. See Wallace, 472 U.S. at 56,

105 S. Ct. at 2489; Brown, 258 F.3d at 277. The Supreme Court has

already held that the stated secular purpose of RLUIPA, to protect the

free exercise of religion, is a permissible secular purpose, even if there

is some question as to whether the purpose is in fact genuine. See

Amos, 483 U.S. at 335, 107 S. Ct. at 2868. However, a valid secular

purpose does not prevent the Act from going too far and having the

primary effect of advancing religion. See id. at 334-35, 2868.

* The Fourth Circuit has recognized the possibility that the

Supreme Court’s decision in Employment Division, Dept. of Human

Resources of Oregon v. Smith established a different standard of review

for the constitutionality of generally applicable prison regulations. See

Hines v. South Carolina Dept. of Corrections, 148 F.3d 353 (4th Cir.

1998). However, the Fourth Circuit has not yet ruled on this question,

and it continues to apply the Turner test to such regulations. See id.

The use of the Smith test in evaluating the constitutionality of a

segment of prison regulations would not affect this Court’s analysis of

the constitutionality of RLUIPA, as the strict scrutiny standard

imposed by RLUIPA would still represent a drastic increase in the level

(Continued on following page)

— SS

Sw a eee

App. 35

evaluating the merits of such a claim, to take into account

four factors: (1) Whether there exists a “valid, rational

connection between the prison regulation and the legiti-

mate governmental interest put forward to justify it;” (2)

whether “there are alternative means of exercising the

right that remain open to prison inmates;” (3) “the impact

accommodation of the asserted constitutional right will

have on guards and other inmates, and on the allocation of

prison resources generally;” and (4) the “absence of ready

alternatives” to the prison regulation.® Turner, 482 U.S. at

89-90, 107 S. Ct. at 2262.

The Turner rational relationship test represents a

balance between the need to recognize the continuing

vitality of the constitutional rights of inmates, and the fact

that incarceration necessarily involves a retraction of

some rights. See O’Lone, 482 U.S. at 348, 107 S. Ct. at

2404. However, the test is not a perfect balance, as, in

establishing a reasonableness inquiry for the protection of

constitutional rights, the test errs on the side of deference

to the reasoned judgment of prison administrators. See id.

at 349-50, 2404-95. This deference is a product of the

experience of prison administrators combined with the

limitations of the judiciary that make the courts “ill-

suited” to control the administration of the prison system.

See id.; Turner, 482 U.S. at 84-85, 107 S. Ct. at 2259. The

of protection afforded religious rights relative to the protection afforded

other fundamental rights under either the Turner or Smith analysis.

* While the absence of ready alternatives is evidence of reason-

ableness, this factor does not establish a least restrictive means

requirement. The Court explained that “prison officials do not have to

set up and then shoot down every conceivable alternative method of

accommodating the claimant’s constitutional complaint.” Jd.

App. 36

Supreme Court in Turner flatly rejected the application of

a strict scrutiny analysis to prisoner constitutional claims,

as “subjecting the day-to-day judgments of prison officials

to an inflexible strict scrutiny analysis would seriously

hamper their ability to anticipate security problems and to

adopt innovate solutions to the intractable problems of

prison administration.” Turner, 482 U.S. at 89, 107 S. Ct. at

2262. The Court worried that strict scrutiny would force the

judiciary to run the prison system, thereby eviscerating the

necessary deference due prison officials. Jd.

Before RLUIPA, the deference in O’Lone and Turner to

the decisions of prison administrators applied equally to

all claims based on the violation of fundamental rights,’

including, among others, free speech claims, Amatel v.

Reno, 156 F.3d 192 (D.C. Cir. 1998), claims concerning the

right to marry, Turner, 482 U.S. 78, 107 S. Ct. 2254, the

right to privacy, Oliver v. Scott, 276 F.3d 736 (5th Cir.

2002), the right of meaningful access to the courts, Lewis

v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606

(1996), and discrimination on the basis of race, Morrison v.

Garraghty, 239 F.3d 648 (4th Cir. 2002). In addition to

” The reach of Turner does not stop at the First Amendment, as the

Supreme Court has made it clear that the Turner “rational relation-

ship” standard applies to all cases in which “a prisoner asserts that a

prison regulation violates the Constitution” and “all circumstances in

which the needs of prison administration implicate constitutional

rights.” Washington v. Harper, 494 U.S. 210, 224, 110 S. Ct. 1028, 1038,

108 L. Ed. 2d 178 (1990); see also Thompson v. Souza, 111 F.3d 694 (9th

Cir. 1997). However, the Supreme Court continues to apply highly

deferential standards other than Turner to a limited class of inmate

constitutional claims, including inmate claims under the Eighth

Amendment. See Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128

L. Ed. 2d 811 (1994).

App. 37

applying to such claims equally, the Turner test applied

the same extraordinary amount of deference to prison

officials’ judgments, making each inmate’s constitutional

claim an uphill struggle in the courts. See, e.g., Giano uv.

Senkowski, 54 F.3d 1050, 1055 (2d Cir. 1995) (defining

content-neutral prison regulations as regulations whose

“purpose is to maintain prison security and decrease

violence” and upholding right of prison administrators to

evaluate content on case-by-case basis); see also Farmer uv.

Perrill, 288 F.3d 1254, 1261 (10th Cir. 2002) (describing

the manner in which courts have been “extremely deferen-

tial” to the views of prison administrators); Nolley v.

County of Erie, 776 F. Supp. 715 (W.D. N.Y. 1991) (noting

how prison officials are due “substantial deference” in

deciding whether a prison regulation is rationally related

to a legitimate penological interest). This level of deference

makes many legitimate constitutional claims, which would

otherwise be successful when brought outside the prison

context under a strict scrutiny level of review, likely to fail

when brought by inmates. See In re Long Term Adminis-

trative Segregation of Inmates Designated as Five Per-

centers, 174 F.3d 464, 468 (4th Cir. 1999) (noting how an

unconstitutional law outside of a prison may be held

constitutional when challenged by an inmate); Fraise v.

Terhune, 283 F.3d 506, 515 n.5 (3d Cir. 2002) (“Turner

discussed five prior Supreme Court cases involving inmate

constitutional claims, and in all of those cases the chal-

lenged prison regulation would have been plainly uncon-

stitutional outside the prison context.”); Giano ov.

Senkowskhi, 54 F.3d at 1053 (“The Turner test has been

routinely invoked to uphold prison policies restricting

First Amendment rights that would not be permissible

outside the prison context.”).

App. 38

The right to free exercise of religion did not escape the

reach of Turner. In O’Lone, the Supreme Court upheld the

rational relationship test as the appropriate standard for

inmates’ claims under the Free Exercise Clause, despite

the unquestionably burdensome effect of the challenged

prison regulation on the religious exercise of Muslim

inmates. 482 U.S. 342, 107 S. Ct. 2400. Thus, like other

fundamental rights that inmates retain in prison, the

right of inmates to be free from burdens imposed on

religious exercise by prison regulations was drastically

circumscribed by the rational relationship test. See id.; In

re Five Percenters, 174 F.3d 464 (upholding prison’s classi-

fication of self-described religious group as a security

threat group under Turner); DeHart v. Horn, 227 F.3d 47

(3d Cir. 2000) (denying religious diet under Turner on the

speculative basis of inmate jealousy); Salaam v. Collins,

830 F. Supp. 853 (D. Md. 1993) (holding that cost concerns

satisfy the Turner test).

While the judiciary saw fit to treat religious rights the

same as other fundamental rights under Turner, Congress

viewed these rights differently in passing RLUIPA.

RLUIPA singles out religious rights from the fundamen-

tal rights encompassed within the Turner test and estab-

lishes a drastically increased level of protection for such

rights. Under RLUIPA, prison regulations that substan-

tially burden religious belief, including those that are

generally applicable and facially neutral, are judged

under a strict scrutiny standard, requiring prison offi-

cials, rather than the inmate, to bear the burden of proof

that the regulation furthers a compelling penological

interest and is the least restrictive means of satisfying

this interest. 42 U.S.C. § 2000cc-1. As is well known from

the history of constitutional law, the change that RLUIPA

eiaiiaiiaiiiaaiaiieiin

App. 39

imposes is revolutionary, switching from a scheme of

deference to one of presumptive unconstitutionality. See

Smith, 494 U.S. at 888, 110 S. Ct. at 1605. Instead of

rational, the penological interest under RLUIPA must be

of the highest order, see Wisconsin v. Yoder, 406 U.S. 205,

215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1972); Jenkins

v. Angelone, 948 F. Supp. 543, 546 (E.D. Va. 1996); instead

of focusing on the prison inmate’s ability to find other

avenues to exercise his belief, a court is required to focus

on the prison administrator’s choice among regulatory

options, see 42 U.S.C. § 2000cc-1(a)(2); instead of placing

the burden of proof on an inmate, RLUIPA throws the

burden on prison officials, see id. § 2000cc-1(a). It is hard

to imagine a greater reversal of fortunes for the religious

rights of inmates than the one involved in the passage of

RLUIPA.

What makes this increased level of protection for

religious rights, and religious rights only, constitutionally

questionable is the fact that there is no demonstrable

evidence that religious constitutional rights are at any

greater risk of deprivation in the prison system than other

fundamental rights. While the supporters of RLUIPA, in

arguing for the passage of the Act, noted that “some

institutions restrict religious liberty in egregious and

unnecessary ways” as a result of either “indifference,

ignorance, bigotry, or lack of resources,” see Statements of

Senators Hatch and Kennedy, 146 Cong. Rec. S7774-01,

S7775 (2000), they never made the claim that other funda-

mental rights held by inmates are not similarly threatened

by prison administrators. Indifference, bigotry, and cost

concerns have the same restrictive effect on the freedom of

speech, the ability to marry, the right to privacy, and

countless other freedoms that RLUIPA proponents left to a

App. 40

lesser level of protection under Turner. See, e.g., Cornell v.

Woods, 69 F.3d 1383 (8th Cir. 1995) (discussing retaliatory

acts of prison officials in response to prisoner’s exercise of

his First Amendment rights); Burton v. Livingston, 791

F.2d 97 (8th Cir. 1986) (decrying bigoted death threats

made by prison guard to inmate in retaliation for inmate’s

exercise of his due process and First Amendment rights);

Little v. Terhune, 200 F. Supp.2d 445 (D. N.J. 2002) (ana-

lyzing a prison’s inability to provide completely equal

access to educational program due to cost concerns).

RLUIPA supporters also ignore the fact that the Supreme

Court has already considered the effect of bigotry and

indifference on the exercise of religion in penal institutions

and has held that strict scrutiny is not required by the

Free Exercise Clause to protect religious belief from the

burden imposed by prison regulations. See O’Lone, 482

U.S. 342, 107 S. Ct. 2400. The only standard that is

required by the Constitution to protect the religious belief

of inmates is the same as the standard used to protect

other fundamental rights held by inmates: the rational

relationship test. See O’Lone, 482 U.S. 342, 107 S. Ct.

2400.

If the reach of RLUIPA had been limited to prison

regulations that specifically targeted and discriminated

against religious belief, it would be much more difficult to

decide the Act’s constitutionality. However, RLUIPA

extends far beyond regulations targeting religion, protect-

ing religious inmates against even generally applicable

and facially neutral prison regulations that have a sub-

stantial effect on a multitude of fundamental rights. See

42 U.S.C. § 2000cc-1(a). Such protections give religious

rights a substantially greater level of protection than other

fundamental rights held by inmates. Assume, for example,

App. 41

that a prison official confiscates white supremacist litera-

ture held by two different inmates. One inmate is a member

of the Aryan Nation solely because of his fanatical belief

that a secret Jewish conspiracy exists to control the world.

The second inmate holds the white supremacist literature

because he is a member of the Church of Jesus Christ

Christian, Aryan Nation (“CJCC”). The non-religious

inmate may challenge the confiscation as a violation of his

rights to free expression and free association. A court would

evaluate these claims under the deferential rational

relationship test in Turner, placing a high burden of proof

on the inmate and leaving the inmate with correspond-

ingly dim prospects of success. See Haff v. Cooke, 923 F.

Supp. 1104 (E.D. Wis. 1996). However, the religious

inmate, as a member of the CJCC, may assert a RLUIPA

claim, arguing that the confiscation places a substantial

burden on his religious exercise. The religious white

supremacist now has a much better chance of success than

the non-religious white supremacist, as prison officials

bear the burden of proving that the prison policy satisfies

a compelling interest and is the least restrictive means of

satisfying the interest. See id. at 1115 (“If this court

applied a RFRA test more stringent than the Turner test,

this court would force prisons to favor prisoners’ religious

material over their secular material because prisons would

need a better justification to confiscate religious material

than political material.”).* The difference in the level of

* The Haff court eventually found the actions of prison officials not

to be a violation of RFRA, but only because the court felt constrained by

the Establishment Clause to equate the strict scrutiny test under RFRA

with the rational relationship test of Turner. This is not the normal

approach followed by courts under RFRA and RLUIPA.

App. 42

protection provided to each claim lies not in the relative

merits of the claims, but lies instead in the basis of one

claim in religious belief. See id. (holding that, applying a

strict scrutiny standard under RFRA, the plaintiff “would

possess the white supremacist material solely because of

its relation to exercising his religious, as opposed to his

political, rights.”).

The singling out of religious belief as the one funda-

mental right of prisoners deserving of legislative protec-

tion rejects any notion of congressional neutrality in the

passage of RLUIPA. In the absence of any proof that

religious rights are more at risk in prison than other

fundamental rights, and with the knowledge that strict

scrutiny is not required to protect the religious belief of

prisoners under the Free Exercise Clause, Congress acted

only to protect religious rights. Such an action, while

labeled a neutral “accommodation,” is not in fact neutral

at all, and the Court is not ailowed to defer to the mere

characterization of RLUIPA as such. See Wallace, 472 U.S.

at 82, 105 S. Ct. at 2503 (O’Connor, J., concurring) (“Judi-

cial deference to all legislation that purports to facilitate

the free exercise of religion would completely vitiate the

Establishment Clause. Any statute pertaining to religion

can be viewed as an accommodation of free exercise

rights.”). The burden placed on religious inmates in

prisons is not, as in Amos, one that had been placed on

them by an act of Congress specifically limiting free

exercise rights.” 483 U.S. 327, 107 S. Ct. 2862. Instead,

* The courts that have upheld the constitutionality of RLUIPA

have relied heavily on the Supreme Court’s decision in Amos, arguing

that RLUIPA is merely another example of benevolent governmental

(Continued on following page)

App. 43

neutrality. However, Amos dealt with the lifting of an affirmative

burden placed primarily on religious institutions, in that Title VII’s

prohibitions on hiring or firing on the basis of religion had a much

greater negative impact on the purpose and mission of a religious

organization in comparison to the effect of the prohibitions on a secular

institution. When a religious organization cannot organize itself on the

basis of religion, such a limitation runs counter to the requirements of

the Free Exercise Clause. See Amos, 483 U.S. at 341-42, 107 S. Ct. at

2871 (Brennan, J., concurring) (“The authority to engage in this process

of self-definition inevitably involves what we normally regard as

infringement on free exercise rights, since a religious organization is

able to condition employment in certain activities on subscription to

particular religious tenets.”).

The majority in Amos recognized the constitutional necessity of

providing such an exemption, arguing that limiting the Title VII

exemption solely to the religious activities of religious employers would

still “affect the way an organization carried out what it understood to

be its religious mission.” Jd. at 336, 2868. Thus, the purpose of the

exemption in Amos was to “minimize government ‘interference with the

decision-making process in religions.’” Jd. (alteration in original). When

this interference is lifted, the church is the entity that discriminates on

the basis of religious belief, not the government itself. See id. at 337,

2869.

Unlike the exemption held constitutional in Amos, RLUIPA

requires the government itself, through the actions of prison adminis-

trators, to accommodate religious inmates to a greater degree than non-

religious inmates. See id. at 33% n.15, 107 S. Ct. at 2869 n.15. In

addition, while the Free Exercise Clause arguably required Congress to

provide a religious exemption to Title VIJ in order to alleviate “govern-

mental interference” with the decision-making process of a religious

institution, the Supreme Court in O’Lone has specifically held that a

strict scrutiny standard is not required by the Free Exercise Clause to

protect inmates from regulations that have the effect of burdening their

religious belief. See 482 U.S. 342, 107 S. Ct. 2400.

The difference between Amos and RLUIPA is, like all Establish-

ment Clause cases, a question of degree. However, the difference in

degree between the two is substantial, and congressional neutrality is

the line that divides them. When Congress has acted to impose an

affirmative burden on religion, it is necessary for Congress to remove

that burden in order to retain a position of neutrality towards religious

(Continued on following page)

App. 44

prison inmates exist in a society of universally limited

rights, one that is required by the nature of the institu-

tion. When Congress acts to lift the limitations on one

right while ignoring all others, it abandons a position of

neutrality towards these rights, placing its power behind

one system of belief. See Wallace, 472 U.S. at 50, 105 S. Ct.

at 2486; see also Haff, 923 F. Supp. 1104, 1116 (“The

Establishment Clause and the Free Speech Clause require

[prison officials] to treat religious material no worse and

no better than secular material.”). When the one system of

belief protected is religious belief, Congress has violated

the basic requirement of neutrality embodied in the

Establishment Clause.

While Congress could constitutionally legislate to

raise the level of protection for all of the fundamental

rights of prisoners, doing so only for the right to religious

exercise when all fundamental rights are equally at risk in

the prison system has the principal effect of raising

religious rights to a position superior to that of all other

rights held by prisoners. As a result, RLUIPA has the

principal and primary effect of advancing religious belief.

belief. However, when Congress acts to provide religious inmates, and

only religious inmates, with a level of constitutional protection that the

Supreme Court has deemed unnecessary to protect religious rights, it

has gone beyond protecting religion to affirmatively advancing it.

App. 45

The Impermissible Effect of RLUIPA

in Promoting Religion Has a Direct Effect

on the Status of Religious and

Non-religious Inmates in Prison Society

The danger in privileging religious rights over all

other fundamental rights can be seen in the way in which

the greater protections offered by RLUIPA place religious

individuals in a position of privilege relative to non-

religious individuals in prison.

As discussed previously in this opinion, only interests

of the highest order may satisfy the compelling interest

standard of the strict scrutiny test.’ If “‘compelling

‘°° The supporters of RLUIPA in Congress had no difficulty in

asking courts to “‘continue the tradition of giving due deference to the

experience and expertise of prison and jail administrators in establish-

ing necessary regulations and procedures to maintain good order,

security and discipline, consistent with consideration of costs and

limited resources.’” Statement of Senators Hatch and Kennedy, 140

Cong. Rec. at S7775. However, this suggestion rings hollow when one

considers that the strict scrutiny standard under RLUIPA is no

different from that applied in any other strict scrutiny context.

Some courts, in examining prison regulations under RFRA and

RLUIPA, have softened the compelling interest test to allow speculative

administrative judgments concerning security and cost to suffice to

allow the regulation to survive strict scrutiny. See, e.g., U.S. v. Jeffer-

son, 175 F. Supp.2d 1123 (N.D. Ind. 2001); Davie v. Wingard, 958 F.

Supp. 1244 (S.D. Ohio 1997); Jones v. Roth, 950 F. Supp. 254 (N.D. Il.

1996); Jenkins v. Angelone, 948 F. Supp. 543 (E.D. Va. 1996); Blanken v.

Ohio Dept. of Rehabilitation and Correction, 944 F. Supp. 1359 (S.D.

Ohio 1996). Such an approach does restore the deference to the

judgment of prison administrators valued so highly in Turner and

O’Lone, but it leaves little of substance to the congressional vision of

RLUIPA. It is also an approach that is dangerous for the protection of

the constitutional rights of individuals outside of prison. Watering down

(Continued on following page)

App. 46

interest’ really means what it says ... many laws will not

meet the test.” Smith, 494 U.S. at 888, 110 S. Ct. at 1605.

Even if a prison regulation meets the standard of a com-

pelling interest, the prison must still prove that the

regulation is the least restrictive means of achieving the

stated interest. Thus, as long as a prison inmate can

establish that a regulation imposes a substantial burden

on his religious exercise, the prison regulation comes into

court with a strong presumption of invalidity.

Moreover, the substantial burden requirement leaves

a court very little power to narrow the cases that come to

court. Courts are severely limited in evaluating whether

the inmate’s stated religious practice is worthy of RLUIPA

protections, as the courts cannot give close scrutiny to the

importance or centrality of the religious practice in ques-

tion to the believer’s faith. See 42 U.S.C. § 2000cc-5(7)(A)

(“The term ‘religious exercise’ includes any exercise of

religion, whether or not compelled by, or central to, a

system of religious belief.”); see also Thomas v. Review Bad.

of Ind. Employment Sec. Division, 450 U.S. 707, 715, 101

S. Ct. 1425, 1430, 67 L. Ed. 2d 624 (1981) (“Courts should

not undertake to dissect religious beliefs because the

believer admits that he is ‘struggling’ with his position or

because his beliefs are not articulated with the clarity and

strict scrutiny in a result-oriented manner in the prison context could

“subvert its rigor in other fields where it is applied.” Smith, 494 U.S. at

888, 110 S. Ct. at 1605; see also Haff, 923 F. Supp. at 1118 (“If the courts

interpret RFRA to apply a weaker compelling interest test, they risk

the compelling interest test becoming a platitude.... As some courts

weaken the RFRA test, other courts may import the RFRA test in areas

where the traditional compelling interest test is needed. Then, laws

deserving the strictest scrutiny will receive a more lenient review.”).

App. 47

precision that a more sophisticated person might em-

ploy.”). As a result of the broad interpretation given to

“religious exercise,” a court must abide by the individual

prisoner’s subjective determination that a particular

practice is a method of religious belief. See Rouser v.

White, 944 F. Supp. 1447, 1454 (E.D. Cal. 1996) (“[T]he

Supreme Court has explained that the relevant question is

not what others regard as an important religious practice,

but what the plaintiff believes.”).

RLUIPA, in placing religious inmates in such a

position of power, requires a prison to measure “the effects

of ... action on an objector’s spiritual development,”

effectively making a religious inmate “a law unto himself.”

See Smith, 494 U.S. at 885, 110 S. Ct. at 1603. The “con-

venience or interests” of the prison system, an important

element of the inquiry into an inmate’s claim under the

Turner test, has been eliminated in favor of a right to

exemption closely resembling the “absolute and unquali-

fied right” held by the employee in Estate of Thornton v.

Caldor. See 472 U.S. 703, 105 S. Ct. 2914 (holding Con-

necticut law that prevented employers from requiring an

employee to work on the employee’s Sabbath unconstitu-

tional as a violation of the Establishment Clause); see also

Smith (“Precisely because ‘we are a cosmopolitan nation

made up of almost every conceivable religious preference,’

and precisely because we value and protect that religious

divergence, we cannot afford the luxury of deeming pre-

sumptively invalid, as applied to the religious objector,

every regulation of conduct that does not protect an

interest of the highest order.”). While even strict scrutiny

does not provide an “absolute” right of exemption to

religious inmates, the tremendous level of protection

App. 48

provided by RLUIPA is evident in the numerous exemp-

tions and privileges courts have required prison officials to

provide religious prisoners, and only religious prisoners,

under the Act’s strict scrutiny standard.

RLUIPA is just beginning to come into use by inmates

bringing religious constitutional claims against prisons.

How

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