# Opposition Brief — Alameida v. Mayweathers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 815

## Text

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1571%3A2. Public record. Not legal advice.