Opposition Brief — Reisch v. Sisney

“Supteme Court, U.S.

FILED

APR 19 2010 |

No. 09-953 | i

a OFFICE OF “HE CLF,

Jn Che

Supreme Court of the Anited States

TIM REISCH, ET AL..,

Cross-Petitioners.

v's

CHARLES E. SISNEY,JAMES DEAN VAN WYHE,

AND UNITED STATES OF AMERICA,

Cross- kespondents,

ON CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF CHARLES E. SISNEY IN OPPOSITION

TO CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

Richard L. Johnson Kathryn M. Davis

300 North Dakota Avenue Counsel of Record

Suite 406 c/o CHAPMAN UNIVERSITY

Sioux Falls, SD 57104 SCHOOL OF LAW

Telephone: (605) 338-2626 APPELLATE LITIGATION CLINIC

rljatty@aol.com One University Drive

Orange, CA 92866

Telephone: (714) 628-2504

Kathryn.Davis@Kmdavislaw.com

QUESTION PRESENTED

Whether Section 3 of the Religious Land Use

and Institutionalized Persons Act of 2000 (RLUIPA),

42 U.S.C. § 2000ce-1, is a constitutional exercise of

Congress’ legislative authority under the Spending

Clause, U.S. CONST. art. I, § 8, cl. 1. Specifically,

whether Congress has the authority to determine that

RLUIPA was enacted in pursuit of the general welfare

to protect fundamental religious liberty and promote

prisoner rehabilitation, or, instead, whether federal

spending for state prisons violates the Spending Clause

by intruding upon the states’ police power.

LIST OF PARTIES

Cross-Respondents are Charles E. Sisney, an

inmate at the South Dakota State Penitentiary, and the

United States of America, Intervenor below.

Cross-Petitioners, in their individual and official

capacities, are Tim Reisch, Secretary of Corrections for

South Dakota; Douglas L. Weber, Chief Warden for the

Department of Corrections of South Dakota; Dennis

Block, Associate Warden for the South Dakota State

Penitentiary; Jennifer Wagner a/k/a Jennifer Lane,

Cultural Activities Coordinator for the South Dakota

State Penitentiary; and Daryl Slykhuis, Interim

Warden for the South Dakota State Penitentiary.

James Dean Van Wyhe, an appellee in the

circuit court proceedings, is named as a conditional

Cross-Respondent, but is not a petitioner in this Court.

Ii)

TABLE OF CONTENTS

Page

OPINIONS BELOW veccccssssssssssesesssssssssssssescssesssseesesssessen wal

JURISDICTION veccsssssseseccesssssssssssssessssesssssssecsessssssssvevesssesee }

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ooccesssccscssssssssesssecceseece

COUNTER-STATEMENT OF THE CASE veseecccccssssssse2

REASONS FOR DENYING THE WRIT veccccssssssseeecce 16

I. THE QUESTION PRESENTED FAILS

TO IMPLICATE A SPLIT AMONG

THE CIRCUIT COURTS OF APPEALS

AND DOES NOT WARRANT

REVIEW, AS ALL SIX CIRCUITS

THAT HAVE CONSIDERED THE

QUESTION HAVE UPHELD RLUIPA

AS VALID SPENDING CLAUSE

i TT Siskardeitints tran evecusipelecsaniantosninteboniesues 16

Il. THE QUESTION PRESENTED FAILS

TO IMPLICATE A CONFLICT WITH

ANY OF THIS COURT'S

PRECEDENTS, AS THE EIGHTH

CIRCUIT’S DECISION REPRESENTS

A STRAIGHTFORWARD

APPLICATION OF BUTLER AND

SE sdastoinsuicavicvaien Siebila sashes eluate taeda bein teielesianen sovehoke

Ill. THE EIGHTH CIRCUIT CORRECTLY

DETERMINED THAT RLUIPA

PROMOTES THE GENERAL

WELFARE AND DOES NOT

ENCROACH UPON

ONCLUSION

TABLE OF AUTHORITIES

Page(s)

CASES

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

I eect ME ID ccctcsasinghenaehcnesrinavetoteensucaussadnmncameaeaun ne

Bd. of Educ. v. Mergens,

i a Me I sce cnaixiicncavscikanekhcnenubaveuseapsnsiainaaskeaneuee

Benning v. Georgzta,

S91 F'.3d 1299 (11th Cir. 2004)..........ccsccsccccsssssecees passim

Charles v. Verhagen,

POS FOG GUE CIE Car, BOIS) cccsescsccesscessnrsocssessocses passim

Coll. Sav. Bank v. Fl. Prepaid Postsecondary Educ.

Expense Ba.,

527 U.S. 666 (1999)....... REE RP err eC IINA Hanh. tah ATM Oe

Cutter v. Wilkinson,

Se We, We ED i lnaceaveninsanciccesnasacentnubecacactekenen passim

Cutter v. Wilkinson,

GZS FOG STO COE Cit, BOOB) cesvccsccccsccssccssessocsssesce passin

Davis v. Monroe County Bd. of Educ.,

NS iF ces Ue OED ca iets vin aivdiacnci wheeabicicsenncansnicsacinebecania 23, 29

Employment Div., Dep’t of Human Resources of Or. v.

Smith,

Ne ee Noi icacccnceccteunecdicaesdcaeacacs 10, 14, 27, 34

Gareia v. San Antonio Metro. Transit Auth...

ee nd wa cetanienadchdcainecauasubaans 35

Gonzales v. Raich,

a na a cea ukask waka ceasaa Se

v1

TABLE OF AUTHORITIES (continued)

Page(s)

Helvering v. Davis,

301 U.S. 619 (1937)

Jim C. v. United States,

235 F.3d 1079 (8th Cir. 2000) (en banc), cert. denied,

BSS U5. BED CIO] ) oc ccvccacccsencess: ensrenbenee anautanaduneaaen 11,14

Madison v. Virginia,

$74 FB 115 C46 Cir, BOOG)......c..ccsscssesnssecssccsssese passim

Mayweathers v. Newland,

314 F.3d 1062 (9th Cir. 2002), cert. denied, 540 U.S.

Se ID Bituicnenien cick sn daniekeaicineannendensesanechainmasiias passim

Murphy v. Mo. Dep't of Corr., 372 F.3d 979 (8th Cir.

2004), cert. denied, 543 U.S. 99]

REPEIE cas (caceveenkae ss SUE teh ce al PUMA Ck een Gamenil 13

National League of Cities v. Usery,

ohana anmaaaies 35

New York v. United States,

Oe OF. BG CID vicecsscescsesncssecsees

Oklahoma v. Civil Serv. Comm’ n,

Se at SD on ape pnccuebagedenimalgnseoosanel 30, 38

Pennhurst State Sch. & Hosp. v. Halderman,

Be Te SERN R eRe bain NAS Orn 23

Printz v. United States,

SARE TT ea ae passim

ee ee ES ns a se cabs snasemouneneeneucaexuuaneunal 30

Rene v. Condon,

528 U.S. 141 (2000)...................... evabadde tases aeke eka

Rumsfeld v. FAIR, Inc.,

RO AE ae ME MID sch nis ccUarcsicr hen ts kacsndicc sins acamabtiaanconecamen anno

Vil

TABLE OF AUTHORITIES (continued)

Page(s)

Sabri v. United States,

541 U.S. 600 (2004).

Sasnett v. Litscher,

SOT FF te Be CTC Clie, TOY vecsccccecavescnunceccsteasnee 6

Smith v. Allen,

502 F.3d 1255 (11th Cir. 2007)...............000. en att 17

Sossamon Vv. Texas,

B60 F .00 B36 (BAA Cir. BOO) vc cnccsscscscssccsvscececsees 15, 16, 17

South Dakota v. Dole,

483 U.S. 203 (1987)

United States v. Butler,

(ee Ee). |) ieshichics essa 2A, 25, 27, 37

United States v. Lopez,

BRS US. BED (LBRO) on eecserceseccasscscoccossocssasessacdeasneneeeane

United States v. Morrison,

ee UF mS, Se CD seas ccnsasaceiecssuncunnchsckessseneeen 30, 32, 37

Be Uh cats SR sensackscsasenosteenbeataaees sonvscielbeaae

Bs US I, & BB OOD ) vceecsvuccsnescodeceduncconsnsiacwstaeemieiaaee ]

POO. © Face keen tascenccsvcncceasucunssiedeiies ae 34

42 U.S.C. § 200000-1 voces ee

ES U.S.C. 8 BI Lv cviis sn vnscas cacssseracrcsseceacsicuenneoeneee 3

SN)

4? U.S.C. § 2000ec-1(b) |

V1ll

TABLE OF AUTHORITIES (continued)

Pagel S)

SS Dicdseariaiaeouee 7

ES 2

EE ee f

Ee 19, 34

42 U.S.C. § 2000d-4a ...... dt OE TN 4

I MEET . .., cseccocnnsccesccccecsconnesescconesessovecesoconcs 10

Cle sscsssunesstsnnscsnckscenavsenchsensacasecs 19

TE nc cnanarcncavnsnossersnencccossvece econ ee

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. I, § 8, cl. 1. .................. Re, Se

OTHER AUTHORITIES

Erwin Chemerinsky, “Protecting the Spending

Power,” 4 CHAP. L. REV. 89 (2001)............26, 28, 31, 36

Protecting Religious Liberty After Boerne v. Flores

(Pt. III): Hearing Before the Subcomm. on the

Constitution of the House Comm. on the Judiciary,

105th Cong., lst Sess. 41 (1998) (statement of [saac

Jaroslawicz, Director of Legal Affairs, Aleph

aii cai sak cugeacentakidbasnwhncndéususesesnvecabsnseausesabten ;

H.R. Rep. No. 106-219, 106th Cong. Ist Sess. (July 1,

EE eee

>

LX

TABLE OF AUTHORITIES (continued)

Page(s

ec. £1563 (daily ed. Sept. 22, 2000)..........

146 Cong. R

146 Cong. Rec. 87774 (daily ed. July 27, 2000) (joint

statement of Sen. Hatch and Sen. Kennedy on

PSS OE FOP 2vceciiniastacesinsscassanenb ences pa eae 4,

\

}

oO

OPINIONS BELOW

The court of appeals’ opinion is reported at 58]

F.3d 639. Pet. App. la.1 The district court’s opinion is

reported at 533 F. Supp. 2d 952. Pet. App. 41a.

JURISDICTION

The court of appeals’ judgment v-as entered on

September 10, 2009. On January &, 2010, pursuant to a

30-day extension of time, Petitioner Charles E. Sisney

filed a petition for a writ of certiorari. On February 9,

2010, Respondents Tim Reisch eft a/ filed a conditional

eross-petition for a writ of certioran. On March 3,

2010, Justice Samuel! Alito extended the time for Cross-

Respondents, including the United States, to file a

response to the cross-petition until April 19, 2010. This

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional Provisions

The Spending Clause in Article I of the United

States Constitution provides, in part: “The Congress

shall have Power To lay and collect Taxes, Duties,

Imposts and Excises, to pay the Debts and provide for

the common Defence and general Welfare of the

United States.” U.S. CONST. art. I, § 8, cl. 1.

References to Petitioner’s Appendix are to the appendix filed

in support of the petition for a writ of certiorari pending in Sisney

v. Reisch, No. 09-821, filed Jan. 8, 2010.

II. Statutory Provisions

section 3 of the Religious Land Use and

[nstitutionalized Persons Act, 42 U.S.C. § 2000cc-1,

provides, in pertinent part:

a){ reneral! rule

No government shall impose a substantial

burden on the religious exercise of a

person residing in or confined to an

institution ... even if the burden results

from a rule of general applicability, unless

the yovernment demonstrates _ that

imposition of the burden on that person

1) is in furtherance of a compelling

sovernmental interest: and

») is the least restrictive means of

furthering that compelling

governmental interest

(b) Scope of apphcation

This section applies in any case

(1) the substantial burden

imposed in a program or

activity that receives Federal

financial assistance; or

(2) the substantial burden

affects, or removal of that

substantial burden would

affect, commerce ... among

COUNTER-STATEMENT OF THE CASE

I. Statutory Background

Enacted on September 22, 2000, in response to

this Court’s decision in City of Boerne v. Flores, 521

U.S. 507 (1997), the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA), 42

U.S.C. §§ 2000ec to 2000cc-5, represents “the latest of

long-running congressional efforts to accord religiou

exercise heightened protection from government-

imposed burdens.” Cutter v. Wilkinson, 544 U.S. 709,

714 (2005). Less sweeping in scope than its

predecessor, the Religious Freedom Restoration Act,

and invoking authority under the Spending and

Commerce Clauses, Congress enacted RLUIPA t

protect religious hberty against government-imposed

burdens in two distinct contexts—discretionary

applications of state and local land use regulations and

the religious exercise of persons institutionalized

prisons, mental hospitals and similar state institutions

Section 3 of RLUIPA, at issue here, applies to

institutionalized persons and provides that no state or

local government “shall impose a substantial burden

the religious exercise of a person residing in or

confined to an institution ... even if the burden results

from a rule of general applicability, unless the

government demonstrates that imposition of the

burden on that person” is both “in furtherance of a

compelling governmental interest” and “the least

restrictive means” of furthering that interest. 42

I) S.C. § 2000ee-1(a) Congress did not invoke

Fourteenth Amendment enforcement powers in

enacting Section 3. Instead, in keeping with a long

tradition of federal anti-discrimination legislation,

Congress established compliance with Section 3 as a

condition on the receipt of federal funds. Under

Section 3(b), RLUIPA applies when “the substantial

burden [on religious exercise] is imposed in a program

or activity that receives Federal financial assistance, ’

ry “the substantial burden affects, or the removal of

| + ] 4% . . ~ . } ‘ - > —

that substantial burden would alfect, commerce with

reign nations, among the several States, or with

Indian tribe 12 US. 0 ee-1(b)(1)-(2) O{

reievance rie f ne Lern rovrrall (>? . CT Vil

defined tO ll | ] le “all yf the operati ms ¢ a Pes

department, agency, special purpose district, or other

instrumentality of a State or of a local government.” 42

5C.§ 2000d-4a(1)( A): see 42 U.S.C. § 2000ec-5(6

Before eCNnac ins SECLIO! > anu SCECKINS

} ' } : " ] + ox 7. rq | nt t . it} be

iDuSsSN an evidentiary record sulhcient to withstand

this Court’s serutiny, Congress documented in hearings

spanning three years that “frivolous and arbitrary

barriers impeded _institutionalized persons’ _ fre¢

religious exercise. Cutter, 544 U.S. at 716 (quoting 146

Ci ng. Rex ‘ S7T77A. DHidlo (dail ed. July ro

a

7, 2000) Goint

statement of Sen. Hatch and Sen. Kennedy on

RLUIPA) (“Whether from indifference, ignorance,

bigotry, or lack of resources, some institutions restrict

reugious | bert) In eyreyious and unnecessary ways )

Evidence betore Congress demonstrated that in thi

absence of federal legislation, prisoners, civil detainees

and individuals institutionalized in mental hospitals

continued to endure substantial burdens in practicing

their religious faiths. See, e.g, 146 Cong. Rec. 87774

75 (daily ed. July 27, 2000); 146 Cong. Rec. E1563-64

daily ed. Sept. 22, 2000); H.R. Rep. No. 106-219, 106th

‘ T

Cong. Ist Sess. (July 1, 1999), at 9-10 (summarizing

testimony). Congress heard testimony from witnesses

who recounted cases In which prison officials,

arbitrarily and without justification, denied prisoner

aecess to food, clothing or religious articles that were

required by the prisoners’ faiths. H.R. Rep. No. 106

219, 106th Cong. Ist Sess. (July 1, 1999), at 9-10. For

example, congressional testimony demonstrated that

prison officials disallowed the lighting of Chanukah

‘andles but allowed votive candles, refused to purchas

yr allow prisoners to receive matzo, which Jews are

re juired to eat on Passover, and refused to let Jewis!

prisoners fast when their religion so required or take a

lunch to break their fast at nightfall See

Protecting Religious Liberty After Boerne v. Flores

Pt. Lil): Hearing Before the Subcomm. on th

Constitution of the House Comm. on the Judiciary,

105th Cong., Ist Sess. 41, 43 (1998) (statement of Isaac

Jaroslawicz, Director of Legal Affairs, Aleph Institute

see also Cutter, 544 U.S. at 716 n.5 (citing examples

Congres: heard ti timony ‘oncerning a case In

which officials allowed a prisoner to attend E pis¢ pal

services but forbade him from taking communion, (see

(fifo), and a Case 1h Whien

l 16 Cong. Ree. » | 6 §¢

prison rules “without a ghost of a reason,” prevents i

P) testant prisoners Irom wearing OS8SC8, as n

Sasnett v. Litscher, 197 F.3d 290, 293 (7th Cir. 1999

based on this testimony Congress concluded

a ijnstitutional residents’ right to practice their

faith is at the mercy of those running the institutior

52 4 =e ) = PP t= P

146 | Rec S714 Sillo

| - +

in light of these findings nd in ordet

f I redress for nmate who encountered undue

narrie! Lo their re igi us oservances ( ongyre :

rt +’ /s . + . P 7 ’ +# °

rest /‘least restrictive means’ standard Cutter

4A T . 7

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bd at 716-1% AS tnis oul eCCOLT eq], pet

y +.1.+ eee sarin + vort

= ; cl nstituti TI = ij A ei tne 4 vermmel t ©] ~ ,

“) + ] +? os | ] y ’ 4 , ;

1CyPret i control unparalleled lvlllan § eT ania

7 r | ry ' ;

‘ t t { Sci i lv ‘ i) { r’é t i- t x +? T f

/ a Yr AA qc’ wiet 7 >] ger. +} 4

4 Cl “x ob cAl (2U-a1 A\ iJ if A As ] ‘

Kceptional government-created burde: n private

' 4

7 4

iz { } ePXKeETCISE and protects yé rs nse wet lT i f

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eS oe } i. Le! | " ne "6 (v} ] need "

iependent I vernment pern

{ gaat mirror é¢ y” a 1 TrMeé y rol Q? j

A ) | »A 4

While RLUIPA’s protection roa )

¥ ‘ .

nited, and accord lue deference to pr

J

mMiniscrators Kiven where a plaintiff establishe

i Lal ld our 1¢ T nm rele 13 CAC T f D? Tri i

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7 | > y " > 4 1+ + > . : ,

Gelear Nel lalm DY StaDMNSnNnINE na ( murat

fitia } , liy YY int

} rt an j ( pe i] j royy y eT er'sé

+

I if ne} 1 I \ Tne ¢ —T re trict f eet | ieed

ne Cutter Court recognized ner nactir

continue the tradition of giving due deference to the

experience and expertise of prison and _ jail

administrators in establishing necessary regulations

and procedures to maintain good order, security and

discipline, consistent with consideration of costs and

limited resources.” 146 Cong. Rec. at S7775; se

Cutter, 544 U.S. at 722-23 (noting that “[l]Jawmaker:

supporting RLUIPA were mindful of the urgency of

discipline, order, safety and security in pena

institutions” and stating that “[wle have n use

believe that RLUIPA would not be applied

appropriately balanced way, with particular sensi

ecurity concerns.”’): see id. at 725 (noting that th

: : < ) 2 ‘ ; - Pye " lL, « ~~) . ?

federa! Bureau of Prisons has anavged the larg

rrectional system in the Nation under the sams

| dA

le Congre that enacted RLUIPA

,

+ 4 Bure i . ey) } ‘ () y +? ‘

I rt re ie{ i CY } i r . j i! I

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+ > ] t T1\ @) + SeCT ,

ng ( €( T ne ré eipl | rede) nan

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iy pursu ne spendall ‘ ise, tne i

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i

rT ! aete da t I ] l [

by] } , y ‘ ef 1 ] t

District Court’s Opi

Petitioner Charles Sisney, an inmate

South Dakota State Penitentiary,

against South Dakota prison officials asserting

interference with his rights of free religious exercise in

violation of RLUIPA. Pet. App. 43a-46a. The priso1

officials sought summary judgment asserting qualified

immunity and Eleventh Amendment immunity, and

challenging the constitutionality of RLU

rious grounds. Pet. App. 42a-43a. The

ervened to defend RLU

brought an action

¥ 7?

United States

[PA’s constitutionality.

qgdistrictl court ipheld RLUIPA

ongress’ Spending Clause

4

a a Valid ePXercist |

A, i hn

19

for religious worship. Pet. App. 109a-110a (citing

Employment Div. v. Smith, 494 U.S. 872, 890 (1990)).

On the Eleventh Amendment, the district court

denied summary judgment, noting that ““‘RLUIPA

follows in the footsteps of a long-standing tradition of

federal legislation that seeks to _ eradicate

discrimination,” Pet. App. 7la (citation omitted), and

eoncluding that RLUIPA’s remedial provision for

“appropriate relief’ expressly permits recovery of

monetary damages; thus, by voluntarily accepting

federal correctional funds, South Dakota waived its

immunity from suits for monetary damages under the

Civil Rights Remedies and Equalization Act of 1986

(CRREA), 42 U.S.C. § 2000d-7. Pet. App. 57a-d8a.

lif. Eighth Cireuit’s Opinion

The Eighth Circuit Court of Appeals affirmed

that RLUIPA is a constitutional exercise of Congress’

Spending Clause power, but reversed on Eleventh

Amendment grounds. The United States intervened to

defend the constitutionality of RLUIPA.

In affirming the district court, the Eighth Circuit

joined every other circuit court of appeals that has

addressed the question to conclude that Section 3 is a

constitutional exercise of legislative power under the

Spending Clause. Pet. App. 14a-22a. The Eighth Cireuit

expressly adopted the reasoning set forth by the

decisions of the Fourth, Sixth, Seventh, Ninth and

Eleventh Circuits upholding RLUIPA against a

Spending Clause challenge. The Eighth Circuit engaged

in a straightforward application of the Do/e factors,

1]

noting as this Court has that the Spending Clause

provides Congress with incidental authority to “attach

conditions on the receipt of federal funds, and [Congress]

has repeatedly employed the power to further broad

policy objectives by conditioning receipt of federal

money|] upon compliance by the recipient with federal

statutory and administrative directives.” Pet. App. 15a

(quoting Dole, 488 U.S. at 206 Gnternal marks omitted)).

Following Lo/e, the court of appeals stated that under

the Spending Clause, “Congress may use conditional!

grants of federal funds to achieve objectives that are not

within the scope of Article I, 77, such as requiring a state

to waive its ‘sovereign immunity as a condition of

receiving federal funds, even though Congress could not

order the waiver directly.” Pet. App. 15a (citing Jim C

v, United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (en

banc), cert. denied, 533 U.S. 949 (2001)).

The court of appeals determined that a state

prison receiving funds under RLUIPA does so on two

conditions: (1) that prison officials not impose a

substantial burden on an inmate’s free religious exercise

unless the burden is justified by a compelling state

interest achieved through the least restrictive means,

and (2) that the state must submit to judicial proceedings

for “appropriate relief’ to enforce RLUIPA. Pet. App.

16a.

The court of appeals found the first Vole factor,

requiring legislation to be in pursuit of the general

welfare, was satisfied because RLUIPA protects

inmates’ religious exercise. The court of appeals

rejected the contention that RLUIPA interferes with

prison administration and improperly encroaches on a

purely local concern—the operation of state correctional

facilities. Following Do/e, the court stated that “als a

general matter, ‘the concept of welfare or the opposite is

shaped by Congress’ in the first instance.” Pet. App. 16-

17a (quoting Dole, 483 U.S. at 208 (internal marks

omitted)). The court of appeals held:

Congress has determined that encouraging

greater protection of religious worship

within prisons promotes the general

welfare, and we find it to be beyond

serious dispute that this protection

furthers society's larger goal. of

rehabilitating inmates as well as simply

respecting individual religious worship.

Purely local matters of _ prison

administration are not jeopardized because

RLUIPA permits” even — substantial

burdens on religious exercise to be

imposed when the state uses the least

restrictive means of pursuing its

compelling governmental interests.

Pet. App. 17a.

Echoing Cutter, the court of appeals further held:

RLUIPA allows courts to give ‘due

deference’ to the expertise of prison

officials in achieving the compelling

government interests involved in prison

operations, and ‘Congress did not intend to

overly burden prison operations’ but to

provide heightened religious protection

‘without undermining the — security,

discipline, and order of those institutions.’

Murphy v. Mo. Dep't of Corr., 372 F.3d

979, 987-88 (8th Cir. 2004), cert. denied, 548

U.S. 991 (2004)).

Pet. App. 17a.

Following five other circuits, the Eighth Circuit

found the second and third Dole factors were satisfied,

concluding that “RLUIPA sets forth the general right to

heightened protection of religious exercise with

sufficient clarity, and unambiguously conditions the

states’ acceptance of federal funding on its agreement to

enforce that protection,” Pet. App. 19a, and that “Tb]oth

the protection of the religious exercise of prisoners and

their rehabilitation are rational goals of Congress, and

those goals are related to the use of federal funds for

state prisons.” /d. (quoting Benning, 391 F.3d at 1308).

Regarding the fourth Do/e factor, the court of

appeals rejected the contention that RLUIPA

contravenes the doctrine of separation of powers by

creating a higher standard of review than that which

applies to constitutional claims. As Cutter previously

noted, the court of appeals expressly held that:

RLUIPA appropriately views _ the

constitutional standard as a floor, not a

ceiling, and provides additional statutory

protection for religious worship in a

particular context. See Mayweathers, 314

F.3d at 1070 (stating the Court in

14

Employment Div. v. Snuth, 494 U.S. 872,

890 (1990), ‘explicitly left [the question of

whether to provide] heightened legislative

protection for religious worship to the

political branches’).

Pet. App. 20a-21a.

Thus, “Congress’s policy decision to provide this

heightened protection is well within Congress’s

appropriate legislative role. ‘Ncthing in the Spending

Clause .. . forecloses Congress from placing conditions

on federal funds that reach beyond what the

Constitution requires.” Pet. App. 21a (citation omitted).

Finally, finding that RLUIPA’s conditions are not

unconstitutionally coercive, the court of appeals rejected

the idea that the states are forced to comply with

RLUIPA. “While a potential loss of 100% of the federal

funding for state prisons would indeed be painful, the

statute is intended as an inducement, and the final choice

is left to each state.” Pet. App. 22a. “{Hlard choices do

not alone amount to coercion.” Jd. (quoting Madison v.

Virgiua, 474 F.8d at 118, 128 (4th Cir. 2006)). “If a

State’s citizens view federal policy as_ sufficiently

contrary to local interests, they may elect to decline a

federal grant.’”” Jd. (quoting Jim C., 235 F.3d at 1082

(quoting New York v. United States, 505 U.S. 144, 168

(1992)). Thus, “[wJe conclude that ‘the Spending Clause

allows Congress to present States with this sort of

choice,’ id, and that RLUIPA is not unduly coercive.”

Id.

ld

On the merits of the RLUIPA claims, the court of

appeals affirmed the denial of summary judgment,

finding that the prison’s refusal to allow Petitioner to

celebrate the festival of Sukkot in a succah, as the Jewish

faith requires, imposed a substantial burden under

RLUIPA, and reversed summary judgment on the

remaining injunctive relief claims. Pet. App. 33a-37a.

IV. Proceedings in This Court

On January 8, 2010, a petition for a writ of

certiorari in Sisney v. Reisch, No. 09-821, was filed,

raising the question whether the Eleventh Amendment

bars private suits for money damages by prisoners

against state officials for violations of Section 3 of

RLUIPA, and whether the express prohibition against

discrimination by federal funding recipients set forth in

CRREA effectuates a waiver of Eleventh Amendment

immunity, either alone or in combination with RLUIPA.

Pet. at i-ii, 32-39; Pet. App. 23a-30a, 70a-76a.

On February 9, 2010, Respondent South Dakota

filed a conditional cross-petition for a writ of certiorari to

consider the constitutionality of RLUIPA under the

Spending Clause. Feisch v. Sisney, No. 09-953.

On March 18, 2010, pursuant to this Court’s

November 2, 2009, invitation. the Solicitor General filed

amicus curiae briefs expressing the views of the United

States in Sossamon v. Texas, No. 08-1438, and Cardina/

v. Metrish, No. 09-109, on the question whether

RLUIPA effectuates a waiver of Eleventh

Amendment immunity. The Solicitor General

recommended that certiorari is warranted to resolve

16

the split among the circuits on whether RLUIPA

contemplates private suits for money damages and, if

so, whether such suits are barred by the Eleventh

Amendment, see Brief for the United States in

Cardinal v. Metrish at 6, 14-21, and further that

CRREA effectuates a waiver of Eleventh Amendment

immunity by federal funding recipients. /d. at 8-13.

The Solicitor General recommended that certiorari

should be granted in Cardinal] and that Sossamon

should be held pending disposition of Cardinal.

On April 12, 2010, the Solicitor General filed her

response recommending that Sisney be held pending

Cardinal. South Dakota filed a brief in opposition.

REASONS FOR DENYING THE WRIT

I. THE QUESTION PRESENTED FAILS TO

IMPLICATE A SPLIT AMONG THE CIRCUIT

COURTS OF APPEALS AND DOES NOT

WARRANT REVIEW, AS ALL SIX

CIRCUITS THAT HAVE CONSIDERED THE

QUESTION HAVE UPHELD RLUIPA AS

VALID SPENDING CLAUSE LEGISLATION

Cross-Petitioners have failed to demonstrate

that review of the Eighth Circuit’s decision is

warranted by this Court. Six circuit courts of appeals,

including the Fourth, Sixth, Seventh, Eighth, Ninth

and Eleventh Circuits, have concluded that RLUIPA

constitutes a valid exercise of Congress’ legislative

power under the Spending Clause. Every cireuit that

has considered the question has determined that

17

RLUIPA constitutes valid Spending Clause legislation,

and every circuit that has considered the question has

determined that RLUIPA was enacted in pursuit of

the general welfare. There is no split among the

circuits on this question, not even a dissenting opinion.

In expressly adopting the reasoning set forth by

its sister circuits, the Eighth Circuit joined every other

circuit that has rejected a Spending Clause challenge,

“with little to add.” Pet. App. 14a. See Madrson v.

Virginia, 474 F.3d 118, 123-29 (4th Cir. 2006); Cutter v.

Wilkinson, 423 F.3d 579, 584-90 (6th Cir. 2005); Benning

v. Georgia, 391 F.3d 1299, 1305-09 (11th Cir. 2004);

Charles v. Verhagen, 348 F.3d 601, 606-11 (7th Cir.

2003); Mayweathers v. Newland, 314 F.3d 1062, 1066-67

(9th Cir. 2002), cert. denied, 540 U.S. 815 (2003); see

also Sossamon v. Texas, 560 F.3d 316, 328-29 (5th Cir.

2009), petition for cert. pending, No. 08-1438 (filed May

18, 2009) (concluding that RLUIPA “was passed

pursuant to the Spending Clause”); Smyth v. Allen, 502

F.3d 1255, 1270, 1274 n.9 (11th Cir. 2007) (agreeing that

RLUIPA “hinges on Congress’ Spending Power’).

Every one of those circuits easily found that

RLUIPA satisfies the first Dole restriction. See

Madison, 474 F.3d at 125 (noting that Dole requires

substantial deference to Congress’ legislative

judgment, citing Cutter for its finding that “Congress

sought to protect prisoners’ religious liberty from

unjustified and substantial burdens,” and concluding

that “RLUIPA’s ‘attempt to protect prisoners’

religious rights and to promote the rehabilitation of

prisoners falls squarely within Congress’ pursuit of the

1s

general welfare.””) (quoting Charles, 348 F.3d at 607);

Cutter, 423 F.3d at 585 (“Heeding the Supreme Court’s

instruction to ‘defer substantially’ to Congress’

legislative judgment, we agree with our sister circuits

that RLUIPA furthers the general welfare.”); Charle:

348 F.3d at 607 (“RLUIPA follows in the footsteps of a

long-standing tradition of federal legislation that seeks

to eradicate discrimination and is ‘designed to guard

against unfair bias and infringement on fundamental

freedoms.” ... Given the Supreme Court’s directive to

defer substantially to Congress’ judgment, we agree

with the Ninth Circuit that RLUIPA’s attempt to

protect prisoners’ religious rights and to promote the

rehabilitation of prisoners falls squarely within

Congress’ pursuit of the general welfare under its

Spending Clause authority.”) (citation omitted);

compare Benning, 391 F.3d at 1805 (finding RLUIPA

valid under the Spending Clause but declining to

address first Do/e restriction where state did not

dispute that RLUIPA serves the general welfare).

The circuit courts have been in complete accord

since 2002, when the Ninth Circuit recognized that

“Congress possesses great leeway to determine which

statutory aims advance the general welfare” and held:

[P]rotecting religious worship in

institutions from substantial and

illegitimate burdens does promote the

general welfare. The First Amendment,

by prohibiting laws that proscribe the

free exercise of religion, demonstrates

the great value placed on protecting

19

religious worship from impermissible

government intrusion. By ensuring that

governments do not act to burden the

exercise of religion in_ institutions,

RLUIPA is clearly in line with this

positive constitutional value. Moreover,

by fostering non-discrimination,

RLUIPA follows a long tradition of

federal legislation designed to guard

against unfair bias and infringement on

fundamental freedoms. See, e.g., Title

VI, 42 U.S.C. § 2000d et seg. (2002); Title

VII, 42 U.S.C. § 2000e et seg. (2002); Title

IX, 20 U.S.C. § 1681 (2002). No sound

reason exists to disturb Congress’s

finding that RLUIPA promotes the

general welfare.

Mayweathers, 314 F.3d at 1066-67 (emphasis in

original); see also Madison, 474 F.3d at 128 (stating that

“Congress has a legitimate interest in seeing how

federal funds are spent. Congress also has a legitimate

interest in protecting the religious freedoms of inmates

and in not funding systems that violate them”).

In sum, there is simply no serious dispute among

the circuit courts that Section 3 of RLUIPA promotes

the general welfare, the purpose of which was

documented in evidentiary hearings before Congress

and recognized by this Court in Cutter.

So, too, the circuit courts of appe als have

uniformly rejected the contention that RLUIPA

20

usurps the regulation of a core state function in

violation of the Tenth Amendment or _ state

sovereignty. While punishment remains a basic police

power, the Sixth, Seventh, Ninth, and Eleventh

Circuits, those courts which have addressed the

question, have concluded that RLUIPA does not

regulate the operation of state prisons or commandeer

compliance; rather, prison officials remain free to run

prisons as they see fit so long as they avoid

substantially burdening prison inmates’ free exercise of

religion. See Cutter, 423 F.3d at 589-90 (“RLUIPA

does not regulate a state’s operation of its prison

Congress’s power to place conditions on federal

funding;” rather, “Congress prohibited the operators of

prisons and other institutions that receive federal

funding from engaging in certain conduct.”); Benning,

391 F.3d at 1308-09 (““RLUIPA’s core policy is not to

regulate the states or compel their enforcement of a

federal regulatory program, but to protect the exercise

of religion, a valid exercise of [the power of Congress],

which does not run afoul of the Tenth Amendment’s

protection of the principles of federalism.”’) (citation

omitted); Charles, 34% F.3d at 609 (“[T]he Tenth

Amendment does not restrict the range of conditions

Congress can impose on the receipt of federal funds,

even if Congress could not achieve the goal(s) of those

conditions directly.”); Mayweathers, 314 F 3d at 1069

(RLUIPA “does not regulate the yperation ol

21

governmental interests, or states can simply decline

federal funds and voluntarily opt out. See Cutter, 423

F.3d at 589 (“RLUIPA does not require the states to

enact or administer a federal program. The Act does

not demand that states take any affirmative action at

all. To the contrary, RLUIPA requires states to

refrain from acting in a way that interferes with

inmates’ exercise of religion, unless the states’ actions

are the least restrictive means of furthering a

compelling governmental interest.”); Madison, 474 F.3d

at 128 (rejecting claim that RLUIPA intrudes on state

sovereignty where “one attribute of State sovereignty

is the ability to waive it in pursuit of other objectives,

in this case pursuit of federal funding”); Benning, 391

F.3d at 1308-09 (“RLUIPA does not compel the states

to regulate in a specific manner” because “RLUIPA...

‘leaves individual states free to eliminate the

discrimination in any way they choose, so long as the

discrimination is_ eliminated.) (citation omitted);

Mayweathers, 314 F.3d at 1069 (“If states disagree

with the requirements of RLUIPA they remain free to

forgo federal funding and opt out of its mandates.”).

Here, too, on the question of whether RLUIPA

interferes with local concerns the circuit courts of

appeals are in complete accord, and not one has

endorsed Cross-Petitioners’ position. Given the

substantial deference courts are instructed by Dole to

accord Congress, the explicit invitation extended to the

political branches in Smuth, the extensive evidentiary

record Congress amassed as recognized in Cutter, and

the sovereign authority retained by the states to

implement or opt out of RLUIPA as they see fit, “[t]o

2?

strike RLUIPA down on Spending Clause grounds

would be an extraordinary assertion of judicial

authority.” Madison, 474 F.3d at 129.

Absent a split among the circuits, or any

decicion supporting Cross-Petitioners’ construction,

review by this Court is not warranted.

1. THE QUESTION PRESENTED FAILS TO

[IMPLICATE A CONFLICT WITH ANY OF

THIS COURT'S PRECEDENTS, AS THE

EIGHTH CIRCUIT'S DECISION

REPRESENTS A STRAIGHTFORWARD

APPLICATION OF BUTLER AND DOLE

Cross-Petitioners contend that review is

warranted because the Eighth Circuit deviated from

Dole by deferring to Congress’ legislative policy

determination that RLUIPA prumotes the general

welfare, and to the extent the courts of appeals have

declined to apply Vo/e in a manner that restricts the

scope of Congress’ legislative power under the

Spending Clause to its enumerated Article I fields.

Despite Cross-Petitioners’ characterization, the Eighth

Circuit, and the five circuit courts it followed, engaged

in a Straightforward application of Do/e and did not

remotely deviate from this Court’s precedents. Indeed,

Dole expressly forecloses Cross-Petitioners’ argument

In Dole, this Court made clear both that court

should substantially defer to Congres policy

idgments regarding the yveneral welfare, and that

Congress’ power to legislate under the Spending

(Clause is not limited to Article I’s enumerate

lhe Spending Clause gives Congress the powe!

Itjo lay and collect Taxes, Duties, Imposts and

E;xcises, to pay the Debts and provide for the common

Defence and general Welfare of the United States.’

5. CONST. art. I, § 8, cl. 1. Congress’ power under the

Spending Clause includes the power to require state:

to comply with federal directives as a condition of

receiving federal funds. See South Dakota v. Dole, 483

U.S. 203, 206 (1987) (holding that Congress may

require states to raise the minimum drinking age to 21

as a condition of receiving federal highway fund:

While Congress cannot force the states to enact o1

administer a federal regulatory scheme, the Spending

Clause is a “permissible method of encouraging a State

to econtorm to federal policy choices,” because “the

iltimate decision” of whether to conform is retained b‘

the state who can always decline the federal grant

Vew York v. United States, 505 U.S. 144, 168 (1992

In the Spending Clause context, Congress has “broad

power to set the terms on which it disburses

money to the States.” Ar/ington Cent. Sch. Dist. Bd. of

Educ. v. Murphy, 548 U.S. 291, 296 (2006); see also

Dole. $755 UJ 5. at ZA) (Loneres:s fia re peated]

( pl j I Spe f ig (Clay f nowe! tO turtner

Droaa =p ective Dy conditioning re ry [

fede mi pon comphance by the recipient wit

ie) Latutol ! idm Lrat f d r'¢ PS

‘ y ’ po LeQy y aa ~*~

( | State Sch. & H Vv. Halderma 151 I

2A

general welfare, (2) conditions on the state’s receipt of

federal funds must be set out unambiguously so that

participation is the result of a knowing and informed

choice, (3) conditions on federal funds must be related

to the federal interest in particular national projects or

programs, (4) conditions must not be prohibited by

other constitutional provisions, and (5) the

circumstances must not be so coercive that “pressure

turns into compulsion.” Do/e, 483 U.S. at 207-11.

Even so, this Court has expressly recognized

that Congress’ power to legislate pursuant to the

Spending Clause is not limited to the scope of its

enumerated powers; rather, Congress may use its

spending power to pursue policy objectives outside the

scope of Article I’s “enumerated legislative fields.”

Dole, 483 U.S. at 207 (quoting United States v. butler,

297 U.S. 1, 65 (1986)). Indeed, this Court long ago

considered the historical commentaries of Hamilton

and Madison and expressly rejected Cross-Petitioners’

narrow construction of the Spending Clause:

Hamilton, on the other hand, maintained

the clause confers a power separate and

distinct from those later enumerated

{and]| is not restricted in meaning by the

grant of them, and Congress

consequently has a substantive power to

tax and to appropriate, limited only by

the requirement that it shall be exercised

to provide for the general welfare of the

United States. ... Mr. Justice Story, in

his Commentaries, espouses the

20

Hamiltonian position. . . . Study of all

these [writings] leads us to conclude that

the reading advocated by Mr. Justice

Story is the correct one. While,

therefore, the power to tax is not

unlimited, its confines are set in the

clause which confers it, and not in those of

section 8 which bestow and define the

legislative powers of the Congress. It

results that the power of Congress to

authorize expenditure of public moneys

for public purposes is not limited by the

direct grants of legislative power found In

the Constitution.

Butler, 297 U.S. at 65-66 (emphasis added); see a/so

Dole, 483 U.S. at 207 (“([O]bjectives not thought to be

within Article I’s enumerated .egislative fields, may

nevertheless be attained through the use of the

spending power and the conditional grant of federal

funds.”) (internal citation and quotation omitted).

This Court has not retreated from But/er, or

from Dole, since. See, e.g., Rumsfeld v. FAIR, Inc., 547

U.S. 47, 58-59 (2006) (rejecting Spending Clause

chailenge and noting that where Congress was free to

regulate directly pursuant to its Article I powers, it

could necessarily impose conditions pursuant to its

spending power, which is “arguably greater” than

Congress’ power to regulate directly because funding

recipients are “free to decline the federal funds”); New

York, 505 U.S. at 167 (stating that where Congress

may lack the power to regulate directly, “[tJhis is not to

26

say that Congress lacks the ability to encourage a State

to regulate in a particular way, or that Congress may

not hold out incentives to the states as a method of

influencing a State’s policy choices,” and citing Dole as

one of many examples of validly exercised Spending

Clause power by which “Congress may urge a State to

adopt a legislative program consistent with federal

interests”).4 No circuit court has suggested otherwise.

Compare Madison, 474 F.3d at 126-27 (rejecting

contention that this Court adopted the Madisonian,

rather than the Hamiltonian, view of the Spending

Clause, and refusing to overrule “decades of clear

directives” concerning the scope of Spending Clause

power.)

Just as fundamentally, and despite Cross-

Petitioners’ suggestion to the contrary, this Court has

directed, clearly and expressly, that: “In considering

whether a particular expenditure is intended to serve

general public purposes, courts should’ defer

substantially to the judgment of Congress.” Dole, 48%

U.S. at 207. “When money is spent to promote the

general welfare, the concept of welfare or the opposite

is shaped by Congress ....” AHe/lvering v. Davis, 301

U.S. 619, 645 (1987). As Justice Cardozo observed:

“The discretion, however, 7s not confided to the courts.

The discretion belongs to Congress, unless the choice is

4 Specifically, according to this Court, “[slimilar examples

abound.” Id. at 167 (collecting cases); see also Erwin

Chemerinsky, “Protecting the Spending Power,” 4 CHAP. L. REV.

89, 89-97 (2001) (discussing Hamilton’s view and pre- and post-

Dole authority for a broad construction of the Spending Clause).

27

clearly wrong, a display of arbitrary power, not an

exercise of judgment.” /d. at 640 (emphasis added).

This Court has left to the political branches the

determination of what promotes the general welfare

absent “a showing that by no reasonable possibility can

the challenged legislation fall within the wide range of

discretion permitted to the Congress.” Jd. at 641

(quoting Butler, 297 U.S. at 67) (emphasis added).

Indeed, the deference due Congress’ policy

judgments is such that this Court has indicated doubt

whether a failwre to advance the general welfare could

ever be adequate grounds for invalidating an otherwise

valid federal statute. See Dole, 483 U.S. at 207 n.2; see

also Mayweathers, 314 F.3d at 1066.

Such deference to Congress’ legislative

determinations and policy choices is particularly apt in

this case, in light of RLUIPA’s long history and this

Court’s express invitation for the political branches to

provide heightened legislative protection for religious

liberty beyond what the Constitution requires. See

Employment Div. v. Smith, 494 U.S. 872, 890 (1990).

Here, as this Court in Cutter expressly

recognized, Congress, in enacting RLUIPA, sought to

protect religious liberty from unjustified and

substantial burdens. Congress certainly has a

legitimate interest in ensuring that its funds do not

subsidize discriminatory behavior or conduct that

infringes upon individual liberties, such as the free

exercise of religion. See Benning, 391 F.3d at 1303;

Charles, 348 F'.3d at 608-09; May weathers, 314 F.3d at

9) has

1067; see also Davis v. Monroe County Bd. of Educ.,

926 U.S. 629, 652-54 (1999) (upholding §anti-

discrimination prohibition of sexual harassment in

schools and corresponding private right of action as a

condition on receipt of federal funds under Title TX).

RLUIPA’s aim to protect institutionalized persons’

free religious exercise and promote rehabilitation falls

squarely within the scope of the general welfare.

Under Dole, that policy choice deserves

substantial deference. Cross-Petitioners cite no

contrary precedent from this Court.

Cross-Petitioners furthermore dedicate several

pages to historical references offered in support of a

narrow Madisonian construction of the Spending

Clause. Cross-Pet. at 11-18, 20. However, as

discussed, this Court has expressly rejected the

Madisonian view, and has not indicated a willingness to

overrule Butler or Dole. Moreover, in each of the

examples Cross-Petitioners cite, the political branches

of government declined to spend federal money; Cross

Petitioners provide no example where the courts

struck down a spending program as exceeding the

scope of Congress’ powers. None exist. See

Chemerinsky, supran.A, at 105 n.5.

Finally, Cross-Petitioners never advanced these

historical arguments or argued that the spending

power is limited to enumerated Article I fields before

the court of appeals. Their arguments should not be

considered for the first time here.

29

Wi. THE EIGHTH CIRCUIT CORRECTLY

DETERMINED THAT RLUIPA PROMOTES

THE GENERAL WELFARE AND DOES NOT

ENCROACH UPON LOCAL CONCERNS

Cross-Petitioners contend that review is

warranted because RLUIPA encroaches on areas of

local concern and interferes with the states’ police

power. As discussed above, however, this Court has

long recognized that Congress has broad power to

condition federal funds upon compliance with its

legislative policy directives, including anti-discrimination

policies, see Davis, 526 U.S. at 649-50, and that

Congress enacted RLUIPA based on well-documented

evidence that “frivolous or arbitrary” barriers

impeded institutionalized persons’ free religious

exercise. Cutter, 544 U.S. at 716. RLUIPA

effectuates validly enacted federal legislative policy to

protect fundamental rights; it does not regulate the

operation of state prisons and local affairs.

The federal government has the power under

the Supremacy Clause to ensure compliance with

federal law. While Congress cannot force the states to

enact or administer a federal regulatory scheme, the

Spending Clause and the Commerce Clause are treated

differently with respect to _ traditional Tenth

Amendment and _ federalism concerns. Because

Congress can regulate indirectly under the Spending

Clause that which it cannot regulate directly under the

Commerce Clause, and because states retain the

ultimate power and choice to decline participation in

the federal programs, state sovereignty is preserved.

30

In Dole, this Court observed that “a perceived

Tenth Amendment limitation on congressional

regulation of state affairs [does] not concomitantly limit

the range of conditions placed on federal grants.” Dole,

483 U.S. at 210. To the contrary, the Court stated that

conditions on funding do not intrude on_ state

sovereignty precisely because they leave each state

with “the ‘simple expedient’ of not yielding to what [the

state] urges is federal coercion.” J/d. (citing Oklahoma

v. Civil Serv. Comm’n, 330 U.S. 127, 143-44 (1947)).

This Court’s post-Do/e decisions did not alter

the constitutional calculus. Unlike New York v. United

States, 505 U.S. 144 (1992), and Printz v. United States,

521 U.S. 898 (1997), RLUIPA does not commandeer

state governments into service for a _ regulatory

purpose. As the Sixth Circuit in Cutter, 423 F.3d at

589, held, RLUIPA does not require the states to enact

or administer any federal program. It does not require

the states to take any affirmative action at all. Instead,

“RLUIPA requires states to refrain from acting in a

way that interferes with inmates’ exercise of religion,

unless the states’ actions are the least restrictive

means of furthering a compelling governmental

interest.” Jd; compare Reno v. Condon, 528 U.S. 141,

144, 151 (2000) (upholding federal statute prohibiting

states from disclosing drivers’ personal information

where statute did not require states to enact federal

laws or regulations or assist in enforcement).

Cross-Petitioners’ reliance on this Court’s

decisions in United States v. Lopez, 514 U.S. 549

(1995), and United States v. Morrison, 529 U.S. 598

ol

(2000), striking federal legislation as beyond Congress’

Commerce Clause power, is misplaced. As discussed,

Congress’s power to condition funds pursuant to its

spending power is broader than and distinct from its

power to regulate directly under the Commerce

Clause. In New York, this Court expressly recognized

the power of Congress, through its spending authority,

to induce states to do what could not be compelled

through the commerce power. See Chemerinsky, supra

n.4, at 101.

As Justice O’Connor wrote in distinguishing the

two powers in New York, 505 U.S. at 166-67:

This is not to say that Congress lacks the

ability to encourage a State to regulate in

a particular way, or that Congress may

not hold out incentives to the States as a

method of influencing a State’s policy

choices. Our cases have identified a

variety of methods, short of outright

coercion, by which Congress may urge a

State to adopt a legislative program

consistent with federal interests.

First, under Congress’ spending power,

‘Congress may attach conditions on the

receipt of federal funds,’... Where the

recipient of federal funds is a State, as is

not unusual today, the conditions

attached to the funds by Congress may

influence a State’s legislative choices.

Id. (quoting Dole, 483 U.S. at 203 (citations omitted));

see also Coll. Sav. Bank vy. Fi. Prepaid Postsecondary

Educ. E’'xpense Ba., 527 U.S. 666, 686 (1999).

Moreover, unlike the sweeping and potentially

unlimited legislation at issue in Lopez and Morrison,

RLUIPA, by its terms, is limited to substantially

burdensome infringements, and even those burdens

can be justified (and thus exempted from liability

under RLUIPA) where the state’s actions are the least

restrictive means of furthering a compelling

governmental interest. 42 U.S.C. § 2000cc-1. Not only

can states opt out of RLUIPA (an option not available

in Lopez or Morrison), but RLUIPA provides that

participating states can avoid the preemptive force of

the statute by changing their policies and practices in a

manner that eliminates the substantial burden, or by

retaining their policies and exempting the substantially

burdened religious exercise. 42 U.S.C. § 2000cc-3(e).

The absence of similar, or any, limiting principles was a

driving force in Lopezand Morrison.

Unlike the “unlimited Commerce Clause

authority rejected in Lopez,’ Cross-Pet. at 23, the

validity of RLUIPA is constrained by the restriction:

in Dole. More fundamentally, compliance is not

mandatory and is ultimately subject to rejection by the

states. See Bd. of Educ. v. Mergens, 496 U.S. 226, 241

(1990); see also Cutter, 544 U.S. at 733 (stating that

“the States’ voluntary acceptance of Congress’

condition undercuts Ohio’s argument that Congress is

encroaching on its turf’) (Thomas, J., coneurring).

Prison officials are not commandeered. To the

contrary, this Court recognized in Cutter that

Congress, in enacting RLUIPA, expressly anticipated

that “courts will continue the tradition of giving due

deference to the experience and expertise of prison and

jail administraters in establishing necessary

regulations and procedures to maintain good order,

security and discipline, consistent with consideration of

costs and limited resources.” 146 Cong. Rec. at S7775

Cutter, 544 U.S. at 722-23 (noting “{llawmakers

supporting RLUIPA were mindful of the urgency of

discipline, order, safety, and security in penal

institutions” and stating “[wl]e have no cause to believe

that RLUIPA would not be applied in an appropriately

balanced way, with particular sensitivity to security

concerns’); see id. at 725-26 (noting ‘““the federal

bureau of Prisons has managed the largest correctional

system in the Nation under the same heightened

scrutiny standard as RLUIPA without compromising

prison security, public safety, or the constitutional

rights of other prisoners,” and that “(t]he Congress

that enacted RLUIPA was aware of the Bureau’s

experience’) (citation omitted).

RLUIPA does not, as _ Cross-Petitioners

suggest, contemplate “{a|bject deference” to Congress’

policy determinations, nor have the lower courts

turned a blind eye to Vole. Cross-Pet. at 23. As

demonstrated above, the courts of appeals have

thoughtfully and correctly applied the Dole factors.

What Cross-Petitioners seek, in effect, is to overrule or

profoundly limit Dole, to impose a judicial limitation on

Congress’ constitutional power to condition federal

Hole remains the law of the la)

neress judgment tnat RLUIPA

creneral welfare merits subst:

intial deference

defi

rence of such a profound nature and degree that

nis Court has questioned whether it is judicially

enforceable. Dole, 4838 U.S. at 207 n2 A

«' ‘ a

designe d to protect First Amendment val

substantially burdensome interferenc

+ +

r

hilé

Statute

ues against

Is certainly one

promotes the general welfare. Like

legislation

that conditions federal funds

on compliance wit}

analogous antidiscrimination provisions on the basis of

race (42 U.S.C. § 2000d), gender (20 U.S.C. § 1681(a)).

disability (29 U.S.C. § 794), and age (42 U.S.C. § 6102),

RLUIPA protects the integrity of important civil

rights by ensuring that substantial burdens are

rhe

imposed on religious exercise. This Court has

recognized the propriety of promoting core

constitutional values in

a

legislation like RLUIPA.

Smith, 494 U.S. at 890: see also Cutter, 544 U.S

». at 719.

Even if these were cognizable grounds for review, thes

rticular challenges were not advanced in or passed on by the

court of appeals Even on the question of whether RLUIPA

unduly interferes with the operation of local prisons, there is no

evidence in the record below to evaluate whether in fact RLUIPA

undermines state affairs.

Judgment on that issue should be

reserved for a case that allows consideration of ev identiary fact

Cross-Petitioners contend that deference to the

political branches in crafting Spending Clause

legislation is too broad, but they fail to articulate a

workable standard for governing judicial limitations or

Congress’ policy judgments concerning what is in the

general welfare, as opposed to what interferes with

“traditional” state activities. Ilistory shows that there

is good reason for judicial deference to Congress in this

context. In overruling Nationa/ League of Cities v

Usery, 426 U.S. 833 (1976), which had held that the

Tenth Amendment prevents Congress from interfering

with “integral” or “traditional” state activities, th

Court cited as a primary reason for its decision the

impossibility of judicially defining what constitute:

“Integral” and “traditional” state functions: “We

therefore now reject, as unsound in principle and

unworkable in practice, a rule of state immunity from

federal regulation that turns on a judicial appraisal! of

whether a particular government function is ‘integral’

or ‘traditional.”” Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 546-47 (1985). Arguing in favor of

judicial restraint, Justice Blackmun stated: “Any rule

of state immunity that looks to the ‘traditional,’

‘integral,’ or ‘necessary’ nature of governmental

functions inevitably invites an unelected federal

judiciary to make decisions about which state policies it

favors and which ones it dislikes.” Jd. at 546,

The Court’s reasoning in Garcia applies with

equal force here. Judicially imposed constraints on the

exercise of Congress’ legislative judgment to

determine what promotes the general welfare would

inevitably call for normative line-drawing in a manner

that the Constitution does not contemplate. Se

Chemerinsky, supra n.4, at 102-04. Requiring courts t

distinguish between the local and national welfare

would involve the kind of indeterminate, policy driven

analysis that has proven unenforceable in the past

Cross-Petitioners contend that RLUIPA hould be

characterized as a form of prison administration, which,

to them, is a matter of local concern. However,

RLUIPA is more accurately described as a civil right

statute intended to protect the religious liberty of

members of minority faiths. The civil rights of

minorities have been a matter of national concern and

welfare since 1862, and cannot seriousl\ be considered

merely a matter of state or local concern.

Indeed, RLUIPA has international as well a:

national implications. The rights of the imprisoned, the

accused and the detained are most certainly a matter of

international concern today. United States foreign

policy initiatives to promote religious liberty and

tolerance in other countries would obviously be

undercut by a failure to protect the religious liberty of

minority faiths at home in our own institutions.

Cross-Petitioners advocate for a standard of

judicial enforcement that has not had the benefit of

evaluation and development in the lov ~~ courts.

Cross-Petitioners fail to articulate how tnis new

standard is supposed to work, and where, exactly, the

line between local and national is to be judicially

drawn. This Court should not reach out to craft a new

Spending Clause standard that has not bee

thoroughly adjudicated and tested in the lower courts.

eek a return to a pre-Sut/er reading of the Spending

ressiv rejected -

~~

and, in so doing, seek to etfectively overrule 75 years ot

—_— ] ‘

(‘rocce_-Pe ifioners ruie wou (| Invaliaqate . ibstanti:

<i

modern spending legislation and render the Spendir

'

ease where this Court struck federal legislation o1

Spending Clause grounds, and they have failed 1

articulate cognizable erounds for certioran Lopez ai i

Vorrison involved distin t Article | powers, al d wert

not subject to the same limiting principles RLUIPA

} ; f

United States, 541 U.S. 600, 607-08 (2004) (declining 1

engenders They are Inapposite S€0, @.L2., OAD)

: Even in area tnat implicate traditional area

concern, Congress can regulate pursuant to the Commerce

and judicially enforceable limits on federal power aré nstri

See, eg., Gonzales v. Raich, 545 | OVS upholding

constitutionality of Controlled Substances Act as applied to nor

commercial intrastate | f 16 ind r impt ) I med

decisions do not control where regulation falls within

Congress’ spending power). If South Dakota objects to

refraining from prison practices that substantially

burden religious exercise, then South Dakota can say

no to federal funds.’ But it should not be permitted to

take federal money and, at the same time, contend that

Congress has unduly interfered with its local affairs.

CONCLUSION

lor the reasons above, the conditional cross

petition for a writ of certiorari should be denied.

Dated: April 16, 2010

Respectfully submitted,

Richard L. Johnson Kathryn M. Davis

300 North Dakota Avenue Counsel of Record

Suite 406 c/o CHAPMAN UNIVERSITY

Sioux Falls, SD 57104 SCHOOL OF LAW

Telephone: (605) 338-2626 APPELLATE LITIGATION CLINIC

rljatty@aol.com One University Drive

Orange, CA 92866

Telephone: (714) 628-2504

Kathryn.Davis@Kmdavislaw.com

Allowing the states to decide for themselves whether to accept

federal funds, and thus whether to support federal policy choices,

does far more to preserve state sovereignty than a rule that vests

that choice, preemptively and categorically, with the federal

courts. See Oklahoma v. Crvil Serv. Comm'n, 330 U.S. at 143-44

(spending power does not violate state sovereignty).