Prisoner rights, land use cases buffet religious liberty law

BP News/November 14, 2003

Washington -- A federal appeals court has delivered a setback to a three-year-old law that includes provisions for prisoners' religious rights.

The U.S. Sixth Circuit Court of Appeals, based in Cincinnati, ruled the provision on inmates in the Religious Land Use and Institutionalized Persons Act (RLUIPA) is unconstitutional. A three-judge panel of the court declared that section violates the First Amendment prohibition of government establishment of religion.

The plaintiffs are Ohio prisoners who assert unconventional religious beliefs. Miller and other co-plaintiffs are followers of Asatru, a polytheistic religion that originated with the Vikings, and includes Thor as one of its gods. Gerhardt is an ordained minister of the Church of Jesus Christ Christian, a white supremacist group that espouses a belief that the races should be separated. Hampton is a Wiccan and practicing "witch," and co-plaintiff John Cutter is an avowed Satanist. All of them assert that Ohio prison regulations denying them access to religious literature and the opportunity to conduct religious services are violations of RLUIPA and the Ohio Constitution.

Among other recent developments related to RLUIPA, a federal judge in San Antonio, Texas, is expected to rule soon in a land-use case involving a large Southern Baptist church. Federal Judge Royal Ferguson heard arguments Oct. 22 on cross motions for summary judgment in a standoff between Castle Hills First Baptist Church and the city of Castle Hills, according to the Becket Fund for Religious Liberty.

The city has challenged RLUIPA and the Texas Religious Freedom Restoration Act. Lawyers from the U.S. Department of Justice and the office of the Texas attorney general defended the constitutionality of the laws. The suburb of San Antonio has refused for years to permit the church to complete a portion of a building and to establish parking lots on land it has purchased. Ferguson said he would rule in three or four weeks, according to the Becket Fund.

RLUIPA, signed by President Clinton in September 2000, bans government policies that substantially burden free exercise of religion by inmates and, in land-use cases, by a person or institution. The government, however, can gain an exemption if it can demonstrate it has a compelling interest and is using the least restrictive means to advance that interest.

In the Sixth Circuit's decision on prisoner rights, Judge Ronald Lee Gilman wrote in the panel's opinion that RLUIPA "has the effect of impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights."

The law not only sends a message of endorsement of religion, Gilman wrote, but it "also has the effect of encouraging prisoners to become religious in order to enjoy greater rights. One effect of RLUIPA is to induce prisoners to adopt or feign religious belief in order to receive the statute's benefits."

The four prisoners in the case, Cutter v. Wilkinson, charged officials of the Ohio Department of Rehabilitation and Corrections with refusing to accommodate their religious exercise. Prison officials argued RLUIPA permits prison gangs to use religion in an effort to "insulate their illicit activities from scrutiny," according to the circuit court panel.

Supporters of the law rejected the decision and the panel's reasoning.

The panel's reliance on the establishment clause is "an engraved invitation to reversal," said Anthony Picarello, Becket Fund vice president.

The panel "relied on two district court opinions, one of which the court acknowledged has already been overruled by the Seventh Circuit, and another, in the Fourth Circuit, that is very likely to be overturned soon," Picarello said in a written statement. "This same line of reasoning has been adopted by one -- and only one -- sitting justice of the Supreme Court and by a very small cadre of legal academics."

The Seventh and Ninth circuits have ruled RLUIPA does not violate the establishment clause but accommodates the religious rights of prisoners. If the full Sixth Circuit does not overrule its panel, it would increase the potential for the Supreme Court to rule on the law. In November, the high court declined to hear an appeal of the Ninth Circuit's opinion.

The Sixth Circuit consists of federal courts in the states of Tennessee, Kentucky, Ohio and Michigan.

While there have been conflicting appellate decisions on the prisoners section of RLUIPA, the first federal court opinion against the land-use provision in the law came in June. Federal Judge Stephen Wilson of California ruled RLUIPA exceeded congressional authority. Wilson rejected Elsinore Christian Center's claim under the law against the city of Lake Elsinore, Calif., which refused to grant a permit to the church to purchase a downtown building.

In other recent developments related to RLUIPA:

-- A panel of the Fourth Circuit Court of Appeals heard oral arguments Oct. 28 in an appeal of a federal court ruling striking down the prisoners section of RLUIPA. The case is Madison v. Ritter.

-- The Florida Department of Corrections agreed in late October to provide a kosher diet to a Jewish prisoner, according to the Becket Fund. Lawyers from the Becket Fund and a Miami firm filed suit in 2002 against the Florida DOC in an effort to gain the diet for Alan Cotton.

Congress passed RLUIPA after the Supreme Court invalidated the more expansive Religious Freedom Restoration Act. In approving the measure, Congress -- with the support of a diverse coalition of organizations, including the Southern Baptist Ethics & Religious Liberty Commission -- sought to address two of the areas in which government most commonly inhibits religious free exercise.