# Petition for Writ of Certiorari — Bass v. Madison

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1103

## Text

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NO38 140 4 Apr 06 2004

Jn The |
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,
v.
IRA W. MADISON and UNITED STATES OF AMERICA,
Respondents.

a
Vv

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
EE FAUT BREE BI vvcvnssccesssnncensoncsscoanssscnasscesses Vv
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

lV

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

ix

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

1

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.

3

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.

4

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

6

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.

7

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.

8

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

ee

9

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

10

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

11

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.

12

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.

13

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.

14

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
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15

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)).

16

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

17

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.”

© An exception can be found in Title VII of the 1964 Civil Rights
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.”).

18

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.

19

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).

ee

20

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)

21

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).

© Neither the Fourth Circuit nor the Sixth Circuit reached the issue of

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

22

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)).

23

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)

24

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

25

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.

26

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

27

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

28

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

———----_--

29

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

30

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

B.

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)

ee

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.

A.

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

B.

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.

C.

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.

D.

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.
A.

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.

B.

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

ee
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.

ee

App. 24

I

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. |

II
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,

ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1309%3A1. Public record. Not legal advice.