Opposition Brief — Alameida v. Mayweathers

No. 02-1655

Jn the Supreme Court of the Gnited States

EDWARD S. ALAMEIDA, JR., DIRECTOR, CALIFORNIA

DEPARTMENT OF CORRECTIONS, ET AL., PETITIONERS

VU.

KARLUK M. MAYWEATHERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

-PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

. MICHAEL S. RAAB

CATHERINE Y. HANCOCK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTIONS PRESENTED

1. Whether the institutionalized persons provisions

of the Religious Land Use and Institutionalized Per-

sons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc-1, violate

separation-of-powers principles.

2. Whether the institutionalized persons provisions

of RLUIPA are a valid exercise of Congress’s Spending

Clause or Commerce Clause powers.

3. Whether the institutionalized persons provisions

of RLUIPA are valid under the Establishment Clause

of the First Amendment.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Adams v. Commissioner, 170 F.3d 173 (3d Cir. 1999),

cert. denied, 528 U.S. 1117 (2000) ........cc-cccscssccscessesoesoeeesees,

Siar ahsdetsedan spon eintcosbsaslssscithinnntdeonesinonsilvastbvbnimustadsnuraoiasiaanecnes

Ashwander v. Tennessee Valley Auth., 297 U.S.

Sa eisciliahaisitiobsssintetiebulhatsevbeniinisdilasicnebssachonsiesenissossxs

Beatty v. Johnson, No. 02-CV-00506 (W.D. Va.

Jan. 31, 2003), appeal pending, No. 03-6359 (4th Cir.

RARER EEG TT RTE a nee

Board of Educ. v. Grumet, 512 U.S. 687 (1994) 0... eee.

Charles v. Verhagen, 220 F. Supp. 2d 955 (W.D.

Wis. 2002), appeal pending, No. 02-3572 (7th Cir.)

NT I ich cael eancesisesetasesssec.

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

Corporation oj Presiding Bishop v. Amos, 483

te op |e TOOT: UT SHES CO To TO

Employment Div. v. Smith, 494 U.S. 872 RE sestusisiinens

Gerhardt v. Lazaroff, 221 F. Sapp 2d 827 (S.D.

Ohio 2002), appeal pending, N. 02-3270 (6th Cir.

I i ceiesameme

Grove City College v. Bell, 465 U.S. 555 ED sistas

Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) ............

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

AERTS ai ot nea

(IIT)

12

13

12

12

IV

Cases—Continued: Page

Kikumura v. Hurley, 242 F.3d 950 (10th Cir.

SUITED csciihascniseinltannienpasiciniisebiteiinediiiacanaasieidiiithiiaiaiininesaiinieinataatd 12

Kilaab Al Ghashiyah v. Wisoieein Dep't of Corrs.,

250 F’. Supp. 2d 1016 (E.D. Wis. 2003), petition fer

permission to take interlocutory appeal granted,

No. 03-8003 (7th Cir. Apr. 25, 2008) ..........scscsssscssssereeceees 7

Koslow v. Pennsylvania, 302 F.3d 161 (8d Cir.

2002), cert. denied, 123 S. Ct. 1853 (2008) ........ cc eeeseseeesees 13

Lau v. Nichols, 414 U.S. 563 (1974) .........ccccccccsscscsssssessessess 12

Madison v. Riter, 240 F. Supp. 2d 566 (W.D. Va.

2003), interlocutory appeal pending, No. 03-6362

a Cin, Sa MR. 4, GD sesenitecniscintncscscernianaienitaoianinieniions 7

New York City Transit Auth. v. Beazer, 440 U.S.

I CRITE ssscintyincseciiinquieibebicineniasitiitetihelatnismalabaitaalagnanaliiigadiithinn 10

Oklahoma v. United States Civil Serv. Comm’n,

SO TB. TE CRED ecneeniotiientissninatasincninnn 13

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

By, 10., GOG UB. UID CID) sccscacicssssisernssisiinesonssinntatenete ~

Spector Motor Serv., Inc. v. McLaughlin, 323

Ue, Bk CRIED oe. wccnsnnniveiactinncimniinnnmicbantapniaitiins 10

South Dakota v. Dole, 483 U.S. 203 (1987) .........cccessceseeees ae

Sutton v. Providence St. Joseph Med. Ctr., 192

FE Se Ce CR Te iivccetssiceasentainincintiveintncinincniinai 12

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (19839) .......... 14

Turner Vv. Safley, 482 US. 78 (1987) vsccscssesssecscsvssecvsssvensenes 11

United States v Grossi, 143 F.3d 348 (7th Cir.),

cert. denied, 525 US. 87B.C1GGB) .......sscsssssssesessonanovevsveeseseee 13

United States v. Virginia, 518 U.S. 515 (1996) «0... ee 8

Virginia Military Inst. v. United States, 508 U.S.

DOT CRITE cisievsinisnns\iesiccntavncckihenntasn achsisliceslediadhiasiteahietia tints 8

Williams v. Angelone, No. 01-CV-00274 (W.D. Va.

Mar. 31, 2003), appeal pending No. 03-6758 (4th

Ce: Tk Dali BE, SD) seicictvnscrisieahatasanieceei lente 7

Cases—Continued: Page

Young, Ex parte, 209 U.S. 123 (1908) .......scccsssesssssssssscseeeeees 8

Young, In re, 141 F.3d 854 (8th Cir.), cert. denied,

SP SFU ES CONOED Sai Aci eeionseenccabnieiaemdss 12

Zorach v. Clauson, 343 U.S. 306 (1952) wo... ccsscseseseseeeees 15

Constitution and statutes:

U.S. Const.:

Art. I:

I GIO saiicciiscsivttcnitinsisisiieniitapaicteiibiiialamasi 3, 5, 12

CRAIC SIE ceisciscsvitscvesisinisiteiiinisnintinmshian 3, 5, 6, 13

SRM F -sensesscissistiiiaisrssinscienciniionemitnliaciionebbaiiaialicaibii 4,11, i2

Establishment Clause ............ccsscssssssssssssesessessssesssees 3,5, 6, 14

RE RE CIID icristsininiiasnstsintintnilauidiiidaiaantaaes 11

TRIES Th siccttasinetiicinis jubiaiseeciantinscitaaiaieiaedahdbisibaibi 5,6

FE | Sanne AUT LS SE, SEITE IEEE 5, 6, 8

SEL. TET sntescivccinthcaniiiasoesiistcieaniatdaeailieabiiactiaaattiaienaes 12

DD svicsincitieciitoneapiaisncehiatenieinliciesasitensiatiibdldpaopaiinideitiidsipassinbiaitias 12

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:

Title VI, 42 U.S.C. 2000d e€ 869. ....c.c-cesccosscesesescercsessesers 12

Ee Sa ters IN cade hicieiniidnesescntinciincohsomeicconabiins 13

Title VII, 42 U.S.C. 20000 et 86g. ..........ccssossssescosessersesere 11

Education Amendments of 1972, Title IX, 20 U.S.C.

BOS GE I scscsuinssiniereesicniceniiteseicsiasoamailibainiaaiisinaianaipaiibinilanbiciias 13

Family and Medical Leave Act of 1993, 29 U.S.C. 2601

OE DO. riercvssvnssinstsigisticnssniechiibilia aiasinithtiiiamntuiliaitcialbiapadaeieiniasin 11 “

Hatch Political Activity Act, ch. 410, 53 Stat. 1147.00... 13

Rehabilitation Act of 1973, 29 U.S.C. 702 et seq. .....e.ssessee0es 11

Religious Freedom Restoration Act of 1993, 42

Eee Pe INIA, sti cilieeidacessed cin nse ceeasieditaitiaeidiaiiiniiis 3, 11

Religious Land Use and Institutionalized Persons 2

Act of 2000, 42 U.S.C. 2000c¢ et seq. ....s..sccsssessssssssssesesssseees 2

Fa He es SITE sccsinsisinnnienicitatianeiiattinnianiiieitatieeide 2

Be a NS iver innenisncininsonsorsnernnninietestiesnicainslina 2

© Bla), SB UBC, BOC Ce Da) asecceceececcersceoccccvovevesocsucovesee 2-3

§ 3(b)(1), 42 U.S.C. 2000cc-1(D)(1) o...eeecessecsssessssesessceees 3

§ 3(b)(2), 42 U.S.C. 2000ce-1(b)(2) .ceescsecssesscssssseccsssesnees 4

S Sim), GE UBC, BIBI): ceecicccecseecssesiavesceronscesacscoeee 4

VI

Statutes—continued: ~ Page

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§ Ale), 4B. UB.C. BOQ CO-DLg) 0.2. crvercscvensvacceseocesescescnenesoonse 4

§ BCR), 4B UBC. BIG BCO-GEG) wrerccercesecesersoreasorenesnscneesticnsens 3

§ 8(6), 42 U.S.C. 2000CC-5(6) ....crccccscorcreccrreserererserereccesece 13

Voting Rights Act of 1965, 42 U.S.C. 1971 et seq. .......0000 11

BB UBS. TED) excseceserrersescarniovsarnininiorntinninsiianeetinntlntsiainn 9

BB TAS, BD sinecnccisavessisnniisentinannivennitlonninaruiiiaaaiaitaiceibale 5

Miscellaneous:

146 Cong. Rec. S7775 (daily ed. July 27, 2000) .........ssssssesee 2

H.R. Rep. No. 219, 106th Cong., Ist Sess. (1999) ..........00++ 2

In the Supreme Court of the United States

No. 02-1655

EDWARD 8. ALAMEIDA, JR., DIRECTOR, CALIFORNIA

DEPARTMENT OF CORRECTIONS, ET AL., PETITIONERS

Vv.

KARLUK M. MAYWEATHERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-19)

is reported at 314 F.3d 1062. The opinion (Pet. App. 20-

37) and orders (Pet. App. 38-53, 54-59) of the district

court are not reported.

JURISDICTION

The court of appeals entered its judgment on

December 27, 2002. A petition for rehearing was

denied on February 6, 2003 (Pet. App. 60-62). The

petition for a writ of certiorari was filed on May 7, 2003.

' The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

_ 1. The Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000ce

et seq., is a civil rights law designed to provide, as a

matter of statutory right, heightened protection for the

free exercise of religion and to prevent religious discri-

mination. At the time of RLUIPA’s enactment, evi-

dence before Congress demonstrated that, in the ab-

sence of federal legislation, prisoners, detainees, and

individuals institutionalized in mental hospitals faced

substantial and unwarranted burdens in freely prac-

ticing their religious faiths. See, e.g., H.R. Rep. No.

219, 106th Cong., Ist Sess. 9-10 (1999) (summarizing

testimony). Based on the evidence it compiled, Con-

gress concluded that the rights of institutionalized

persons to practice their faith often were burdened by

“frivolous or arbitrary rules,” and that, whether for

reasons of “indifference, ignorance, bigotry, or lack of

resources,” some institutions restrict religious liberty

in “egregious and unnecessary ways.” 146 Cong. Rec.

S7775 (daily ed. July 27, 2000) (joint statement of Sen.

Hatch and Sen. Kennedy on RLUIPA).

Congress responded by enacting Section 3 of

RLUIPA to provide institutionalized persons protec-

tion from unnecessary burdens on religious practice. 42

U.S.C. 2000cc-1.". Section 3(a) provides that “{nJo

government shall impose a substantial burden on the

religious exercise of a person residing in or confined to

an institution,” unless the burden “is in furtherance of a

compelling governmental interest,” and “is the least

! Section 2 of the statute, 42 U.S.C. 2000ce, protects persons

and entities against land use regulations that burden religious ex-

ercise or discriminate on the basis of religion. That provision is not

at issue in this suit.

3

restrictive means” of furthering that interest. 42

- U.S.C. 2000ce-1(a).? RLUIPA defines the “govern-

ment” to which it applies as “a State, county, municipal-

ity, or other governmental entity created under the

authority of a State,” and “any branch, department,

agency, instrumentality, or official of [such] an entity.”

42 U.S.C. 2000cc-5(4).

Invoking its power under the Spending Clause, U.S.

Const. Art. I, § 8, Cl. 1, Congress required compliance

with Section 3(a) whenever “the substantial burden [on

religion] is imposed in a program or activity that

receives Federal financial assistance.” 42 U.S.C.

2000cc-1(b)(1). Congress also exercised its Commerce

Clause power, U.S. Const. Art. I, § 8, Cl. 3, as an inde-

pendent constitutional basis for Section 3 in those cases

where “the substantial burden affects, or removal of

that substantial burden would affect, commerce with

2 42 U.S.C. 2000ce-1(a) provides:

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 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 governmental

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

thering that compelling governmental interest.

* Through the Religious Freedom Restoration Act of 1993

(RFRA), 42 U.S.C. 2000bb et seq., Congress has imposed a much

broader obligation on the federal government to justify substantial

burdens on religion imposed by any federal governmental activity

—not just zoning or institutionalization. The courts of appeals

have uniformly rejected the argument that RFRA’s application to

the federal government violates separation-of-powers principles or

the Establishment Clause. See cases cited at note 8, infra.

foreign nations, among the several States, or with

Indian tribes.” 42 U.S.C. 2000cc-1(b)(2). However,

even if a plaintiff demonstrates the requisite effect on

commerce, RLUIPA’s provisions do not apply if the

defendant demonstrates, as an affirmative defense, that

the statute is inapplicable because the type of burden at

issue, in the aggregate, would not have a substantial

effect on commerce. 42 U.S.C. 2000cc-2(g).*

RLUIPA creates a private right of action, which

allows any individual whose exercise of religion has

been substantially burdened to “assert a violation of

this chapter as a claim or defense in a judicial pro-

ceeding” and to obtain “appropriate relief against a gov-

ernment.” 42 U.S.C. 2000cc-2(a). The United States

also may seek injunctive or declaratory relief to enforce

the statute. 42 U.S.C. 2000cc-2(f).

2. Respondents, a class of Muslim inmates at the

California State Prison at Solano, brought suit against

petitioners alleging, inter alia, that certain prison pro-

cedures and regulations burdened their free exercise of

religion, in violation of the First Amendment and

RLUIPA. Pet. App. 10. Petitioners moved to dismiss

the RLUIPA claim on the grounds that the statute ex-

4 42 U.S.C. 2000cc-2(g) provides:

If the only jurisdictional basis for applying a provision of

this chapter is a claim that a substantial burden by a

government on religious exercise affects, or that removal of

that substantial burden would affect, commerce with foreign

nations, among the several States, or with Indian tribes, the

provision shall not apply if the government demonstrates that

all substantial burdens on, or the removal of all substantial

burdens from, similar religious exercise throughout the Nation

would not lead in the aggregate to a substantial effect on

commerce with foreign nations, among the several States, or

with Indian tribes.

5

ceeds Congress’s powers under the Spending Clause,

the Commerce Clause, and Section 5 of the Four-

teenth Amendment, and that the statute violates the

Establishment Clause, the separation-of-powers doc-

trine, the Tenth Amendment, and the Eleventh Amend-

ment. Ibid. The United States intervened to defend

the constitutionality of RLUIPA pursuant to 28 U.S.C.

2403(a). Pet. App. 10.

The district court denied the motion to dismiss,

rejecting all of petitioners’ constitutional challenges.

Pet. App. 20-35. In a separate order, the court granted

respondents a preliminary injunction prohibiting the

petitioners from disciplining respondents or forcing

respondents to forfeit good-time credits for attending

Friday afternoon religious services (known as Jumu’ah)

while the case is pending. Jd. at 38-51. The court based

its ruling on earlier orders that already had granted

respondents the identical preliminary injunctive relief

prior to the enactment of RLUIPA. Id. at 54-57. The

court treated the earlier orders as law of the case, and

determined that the enactment of RLUIPA simply

reinforced its earlier conclusions concerning the respon-

dents’ likelihood of success on the merits and entitle-

ment to preliminary injunctive relief. Jd. at 42. The

court also preliminarily enjoined petitioners from deny-

ing respondents the opportunity to earn good-time

credits because of their observation of Jumu’ah. Id. at

43-51. The court determined that respondents had

established a likelihood of success on the merits of that

claim under RLUIPA and a risk of irreparable harm,

and that the balance of equities tipped in their favor.

Id. at 46-47. .

3. The court of appeals affirmed. Pet. App. 1-19.

The court held that, under this Court’s decision in

South Dakota v. Dole, 483 U.S. 203 (1987), RLUIPA “is

6

a legitimate exercise of Congressional spending power,”

Pet. App. 11, because it “promote[s] the general wel-

fare” by “protecting religious worship in institutions

from substantial and illegitimate burdens,” id. at 12,

and because “Congress has a strong interest in making

certain that federal funds do not subsidize conduct that

infringes individual liberties,” id. at 14. Having deter-

mined that RLUIPA is a valid exercise of Congress’s

spending power, the court declined to address whether

RLUIPA is also a valid exercise of Congress’s Com-

merce Clause authority. Jd. at 15 n.2.

The court of appeals further determined that

RLUIPA is a permissible accommodation of religious

practices under the Establishment Clause. Pet. App.

15-17. The court found that the primary aim and effect

of RLUIPA’s institutionalized persons provisions is to

protect against substantial, state-imposed burdens on

the religious exercise of institutionalized persons, and

that the removal of such government-imposed burdens

does not foster an excessive entanglement with relig-

ion. Jd. at 17. The court concluded that “RLUIPA

merely accommodates and protects the free exercise of

religion, which the Constitution allows.” bid.

Finally, the court of appeals rejected petitioners’

claim that RLUIPA’s institutionalized persons pro-

visions violate separation-of-powers principles. Pet.

App. 19. The court explained that RLUIPA does not

purport to revise this Court’s interpretation of the Con-

stitution, but rather, like many other laws, simply “pro-

vides additional [statutory] protection for religious

worship.” Ibid.’

5 The court of appeals also rejected petitioners’ Tenth and

Eleventh Amendment challenges. Pet. App. 18-19. Petitioners do

not renew those claims before this Court.

7

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or of any other

court of appeals. The petition, moreover, seeks inter-

locutory review of a preliminary injunction that, itself,

is largely predicated on alternative legal grounds that

are not presented in the petition. Accordingly, this

Court’s review is not warranted.

1. Petitioners seek review (Pet. 6-14) of the court of

appeals’ decision sustaining the constitutionality of

RLUIPA’s institutionalized person provisions. That

decision, however, does not conflict with the ruling of

any other court of appeals. To the contrary, the court’s

ruling here represents the first appellate court decision

on the question. The question is currently pending

before the Fourth, Sixth, and Seventh Circuits.° Appel-

late consideration of and deliberation on the consti-

tutional questions raised by the petition is thus in its

nascency, making review by this Court at this stage

unnecessary. Because RLUIPA is a relatively new law,

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

interlocutory appeal pending, No. 03-6362 (4th Cir. filed Mar. 4,

2003) (pending briefing); Gerhardt v. Lazaroff, 221 F. Supp. 2d 827

(S.D. Ohio 2002), appeal pending, No. 02-3270 (6th Cir. filed Aug. 6,

2003) (oral argument scheduled for Sept. 10, 2003); Charles v.

Verhagen, 220 F. Supp. 2d 955 (W.D. Wis. 2002), appeal pending,

No. 02-3572 (7th Cir.) (argued May 15, 2003); Kilaab Al Ghashiyah

v. Wisconsin Dep’t of Corrs., 250 F. Supp. 2d 1016 (E.D. Wis. 2003),

petitions for permission to take interlocutory appeals granted, No.

03-8003 (7th Cir. Apr. 25, 2003) (held pending decision in Charles v.

Verhagen, supra); Williams v. Angelone, No. 01-CV-00274 (W.D.

Va. Mar. 31, 2003), appeal pending, No. 03-6758 (4th Cir. filed July

28, 2003) (held pending decision in Madison v. Riter, supra); Beatty

v. Johnson, No. 02-CV-00506 (W.D. Va. Jan. 31, 2003), appeal

pending, No. 03-6359 (4th Cir. filed May 5, 2003) (same).

8

moreover, the contours of the statute’s terms and

operation have only begun to be outlined through

application and adjudication. Awaiting further

experience in the implementation of the law would

provide a more comprehensive and practical backdrop

against which to evaluate the law’s constitutionality.

2. Review is also unwarranted because the case

arises in a profoundly interlocutory posture, such that a

decision by this Court would have little practical impact

on the litigation. “[E]xcept in extraordinary cases, the

writ is not issued until final decree.” See Hamuilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916) (citing additional cases). Compare Virginia

Military Inst. v. United States, 508 U.S. 946 (1993)

(opinion of Scalia, J., on denial of certiorari, noting the

interlocutory posture of the litigation), with United

States v. Virginia, 518 U.S. 515 (1996) (review granted

after final judgment). While interlocutory review is

available for judgments denying Eleventh Amendment

immunity, Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1998), petitioners -

have abandoned their Eleventh Amendment challenge

to RLUIPA by not presenting it in their petition. And

they have abandoned that claim for good reason: the

respondent prisoners seek only prospective injunctive

relief against individual state officials, under the

doctrine of Ex parte Young, 209 U.S. 123 (1908), claims

to which the Eleventh Amendment poses no barrier.

The only basis for appellate jurisdiction at this

interlocutory stage thus is not the district court’s denial

of the motion to dismiss based on petitioners’ constitu-

tional challenge to RLUIPA. Petitioners instead pre-

dicate their request for interlocutory review on the

district court’s order continuing and supplementing an

earlier entered preliminary injunction (Pet. App. 38-43).

eS amen

9

See 28 U.S.C. 1292(a)(1). The problem for petitioners is

that much of the relief afforded by that preliminary

injunction antedates any reliance on RLUIPA in the

litigation and, in fact, is separately predicated on the

district court’s assessment of the respondents’ likeli-

hood of succeeding on their constitutional claims. See

Pet. App. 40-48. Resolution of petitioners’ challenge to

RLUIPA thus would afford petitioners no relief from

those aspects of the preliminary injunction that prohibit

petitioners from disciplining respondents or forcing

respondents to forfeit good-time credits for attending

Jumu’ah religious services. While the petition

references a separate preliminary injunction concerning

the length of prisoners’ beards (Pet. 5), that injunction

was not issued until seven months after the preliminary

injunction at issue here, that judgment was not in-

cluded in petitioners’ appeal to the Ninth Circuit, and

the propriety of that injunction was not addressed by

the Ninth Circuit (Pet. App. 11).’

Thus, it is only one part of the preliminary injunc-

tion—that portion concerning the withholding of good-

time credits for inmates attending Jumu’ah services

(Pet. App. 46-50)—for which petitioners seek this

Court’s interlocutory intervention. Even if, against the

full backdrop of this litigation, that one legal claim war-

ranted the unusual step of interlocutory review by this

Court, that isolated claim provides an awkward vehicle

for evaluating RLUIPA’s constitutionality. That is

because the question before this Court will not be

whether the lower courts’ rulings of constitutional law

7 Indeed, the petitioners later filed a separate appeal of the

district court’s preliminary injunction pertaining to the grooming

regulations, but petitioners voluntarily dismissed that appeal on

February 26, 2003.

10

were proper, but whether the court of appeals properly

found no abuse of discretion in the district court’s

evaluation of the respondents’ likelihood of success on

the merits, the irreparable harm faced by respondents,

and the parties’ competing equities. That latter in-

quiry, moreover, would itself be restricted by yet

another unappealed injunction entered by the district

court, in separate litigation between a California prison

inmate and petitioner, the Director of the California

Department of Corrections, requiring that petitioner to

provide prisoners Excused Time Off from work details

to attend Jumu’ah services. See Pet. App. 47-50

(explaining that the petitioner’s obligation to comply

with that earlier judgment influences the balance of

equities component of the preliminary injunction

inquiry).

In short, the present litigation is an inapt vehicle for

deciding the constitutional questions raised by the

petition, particularly in light of the dearth of appellate

decisions resolving those same questions. See New

York City Transit Auth. v. Beazer, 440 U.S. 568, 582

(1979) (“If there is one doctrine more deeply rooted

than any other in the process of constitutional adjudi-

cation, it is that we ought not to pass on questions of

constitutionality * * * unless such adjudication is

unavoidable.”) (quoting Spector Motor Serv., Inc. v.

McLaughlin, 323 U.S. 101, 105 (1944)); Ashwander v.

Tennessee Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring). Petitioner fails to demon-

strate that any serious or irreparable harm will ensue

from a denial of review at this stage. The fact that

States and localities must comply with the law unless it -

is held to be unconstitutional (Pet. 7) does not itself

warrant review. Such compliance is commonplace in a

system that presumes the constitutionality of legisla-

11

tion and obliges parties to obey the law unless and until

a court invalidates it.

3. The court of appeals’ decision is a correct and

straightforward application of this Court’s precedents.

a. Petitioners contend (Pet. 8, 10) that RLUIPA

violates the separation of powers because it adopts a

more stringent standard of review than the standard

that governs Free Exercise Clause claims generally

under Employment Division v. Smith, 494 U.S. 872

(1990), or prisoners’ First Amendment claims under

Turner v. Safley, 482 U.S. 78 (1987). But as long as

there is a valid source of authority for the legislation,

separation-of-powers principles do not prevent Con-

gress from providing broader statutory protection for

civil rights than the Constitution itself provides. Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

~ et seq., the Family and Medical Leave Act of 1993, 29

U.S.C. 2601 et seq., the Rehabilitation Act of 1973, 29

U.S.C. 701 et seq., and the Voting Rights Act of 1965, 42

U.S.C. 1971 et seq., are but a few examples of laws that

require States to afford individuals broader statutory

protection for civil rights than the Constitution

requires. Indeed, the Court in Smith expressly invited

a legislative response to its decision. 494 U.S. at 890

(explaining that the Court’s holding delineated only a

constitutional floor, and that “a society that believes in

the negative protection accorded to religious belief can

be expected to be solicitous of that value in its legisla-

tion”).

Petitioners’ contention (Pet. 9-10) that the court of

appeals’ opinion conflicts with City of Boerne v. Flores,

521 U.S. 507 (1997), misunderstands that decision. In

Flores, this Court held only that the Religious Freedom

Restoration Act of 1993, 42 U.S.C. 2000bb et seq., as

applied to state and local governments, exceeded Con-

12

gress’s legislative power under Section 5 of the Four-

teenth Amendment. 521 U.S. at 519-522. The decision

did not hold that the statute also violated the separa-

tion-of-powers doctrine, as the courts of appeals have

consistently recognized.®

b. Petitioners’ argument (Pet. 12) that RLUIPA

exceeds Congress’s power under the Spending Clause

fares no better. Nothing in the Constitution compels

Congress to subsidize state programs that burden the

exercise of constitutionally protected rights, unless the

state conduct is itself barred by the Constitution. “The

Federal Government has [the] power to fix the terms

on which its money allotments to the States shall be

disbursed.” Lau v. Nichols, 414 U.S. 563, 569 (1974).

As with Congress’s restriction on funding for programs

that discriminate on the basis of race in Title VI of the

Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., the

federal government has a legitimate interest in restrict-

ing the expenditure of federal funds for programs that

engage in conduct that Congress believes to be con-

trary to the public interest and injurious to individual

rights. See also Grove City College v. Bell, 465 U.S.

595, 575 (1984) (rejecting First Amendment challenge

8 See, 2.g., Guam v. Guerrero, 290 F.3d 1210, 1220-1221 (9th Cir.

2002); Kikumura v. Hurley, 242 F.3d 950, 958-960 (10th Cir. 2001);

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 833 (9th

Cir. 1999) (“Viewed in context, the Court’s discussion [in Flores] of

separation-of-powers principles did not serve as an independent

basis for invalidating RFRA, as applied to state law, but was a

corollary to the Court’s conclusion that no Constitutional provision

authorized Congress to pass RFRA with respect to the states.”);

Adams v. Commissioner, 170 F.3d 173, 175 (8d Cir. 1999) (RFRA

continues to apply to the federal government), cert. denied, 528

U.S. 1117 (2000); In re Young, 141 F.3d 854, 859-861 (8th Cir.), cert.

denied, 525 U.S. 811 (1998) (same).

13

to Title IX of the Education Amendments of 1972, 20

U.S.C. 1681 et seqg., holding that “Congress is free to

attach reasonable and unambiguous conditions to

federal financial assistance that educational institutions

are not obligated to accept”).’ Imposing a condition on

all the operations of a state agency ensures that federal

funds, which are fungible, are not used to support the

disfavored conduct.”

Beyond that, petitioners’ suggestion that conditions

imposed on federal funds must pertain to the “specific”

(Pet. 12) subject matter of the program receiving

the funds cannot be reconciled with this Court’s pre-

cedent. See, e.g., Oklahoma v. United States Civil Serv.

Comm'n, 330 U.S. 127, 143-144 (1947) (upholding Hatch

Act’s broad mandate that no state employee whose

principal employment was in connection with any

activity that was financed in whole or in part by the

United States could take “any active part in political

management”).”

9 RLUIPA explicitly incorporates the Title VI (42 U.S.C.

2000d-4(a)) definition of a covered “program or activity,” 42 U.S.C.

2000cc-5(6).

10 See Koslow v. Pennsylvania, 302 F.3d 161, 175-176 (3d Cir.

2002) (rejecting Spending Clause challenge to Rehabilitation Act),

cert. denied, 123 S. Ct. 1353 (2003); see also United States v.

Grossi, 143 F.3d 348, 350 (7th Cir.) (“money is fungible and its

effect transcends program boundaries”), cert. denied, 525 U.S. 879

- (1998).

1! Although petitioners briefly assert that RLUIPA exceeds

Congress’s powers under the Commerce Clause (see Pet. 11), they

make no specific arguments in support of that contention, and the

court of appeals did not address the issue. See Pet. App. 15 n.2.

The Commerce Clause question thus is not properly presented for

this Court’s review. See Adarand Constructors, Inc. v: Mineta,

534 U.S. 103, 109 (2001) (Court ordinarily does not decide issues

not resolved below).

14

c. Petitioners’ argument (Pet. 13) that RLUIPA

violates the Establishment Clause because it accom-

modates religious, but not secular, beliefs disregards

this Court’s precedent. The suggestion that “statutes

that give special consideration to religious groups are

per se invalid * * * run{s] contrary to the teaching of

[the Court’s] cases that there is ample room for

accommodation of religion under the Establishment

Clause.” Corporation of Presiding Bishop v. Amos, 483

U.S. 327, 338 (1987); see also Board of Educ. of Kiryas

Joel Village Sci. Dist. v. Grumet, 512 U.S. 687, 705

(1994) (Court’s cases “leave no doubt that in com-

manding neutrality the Religion Clauses do not require

the government to be oblivious to impositions that

legitimate exercises of state power may place on relig-

ious belief and practice”). The alleviation of significant

or “substantial” governmental interference with relig-

ious exercise is a permissible secular purpose, as long as

Congress does not “abandon[] neutrality and act([] with

the intent of promoting a particular point of view in

religious matters.” Amos, 483 U.S. at 335; cf. Texas

Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989) (opinion

of Brennan, J.) (tax subsidy invalidated because it

“eannot reasonably be seen as removing a significant

state-imposed deterrent to the free exercise of relig-

ion”). Exemptions from otherwise generally applicable

statutes do not constitute impermissible governmental

facilitation of religion, because the government neither

adds to nor subsidizes the propagation of the religious

message. See Amos, 483 U.S. at 338 (accommodation

statute need not “come packaged with benefits to

secular entities”). To hold otherwise would lead to the

untenable conclusion that the Establishment Clause

forbids States, as a matter of state constitutional or

statutory law, from affording religious exercise (within

15

prisons or without) the same level of constitutional

protection that this Court generally afforded religious

exercise prior to Smith. That principle could imperil

numerous state constitutional protections of religion.

More broadly, that principle ignores the reality that,

when government acts to remedy substantial burdens

on religious exercise, it not only acts consistently with

the Establishment Clause, it in fact, “follows the best of

our traditions.” Zorach v. Clauson, 343 U.S. 306, 314

(1952).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

— THEODORE B. OLSON

Solicitor General

PETER D. KEISLER”

Assistant Attorney General

MARK B. STERN

MICHAEL S. RAAB 7

CATHERINE Y. HANCOCK

Attorneys

AUGUST 2003