NOV. 30, 2004
UPDATED FEB. 28, 2005
UPDATED MAY 31, 2005

CUTTER v. WILKINSON
High Court Sides With Inmates on Religion
Gina Holland/Associated Press (5/31/05: Washington Post)
WASHINGTON -- The Supreme Court on Tuesday upheld the constitutionality of a federal law requiring state prisons to accommodate inmate religions.

High Court Sides With Inmates on Religion
Associated Press (5/31/05: New York Times)
Justices unanimously sided with Ohio inmates, including a witch and a Satanist, who had claimed they were denied access to religious literature, ceremonial items and time to worship.

Posted by the Legal Information Institute at Cornell University Law School:
• Read the opinion by Justice Ruth Bader Ginsburg
• Read a concurring opinion by Justice Clarence Thomas

U.S. SUPREME COURT
Case tests inmates’ religious rights

On May 31, the U.S. Supreme Court upheld a federal law protecting the rights of prisoners to practice their religion. Cutter v. Wilkinson questioned how far prisons must go to accommodate inmates’ religious beliefs. It’s a critical case with rich stories related to inmates’ civil rights, the immense diversity of faith practices among the nation’s enormous prison population, the promise religion has shown in helping turn inmates’ lives around and religions’ obligation to tend to the imprisoned.

Cutter v. Wilkinson pitted security-minded prison authorities against a broad and unlikely coalition of religious organizations and civil libertarians who want to make sure inmates’ religious beliefs are respected. Religious liberty is the rallying cry of this coalition, which is focusing on support for the Religious Land Use and Institutionalized Persons Act of 2000, commonly referred to as RLUIPA. The act puts the burden on the government, particularly in prisons and in zoning law, to justify instances when it says it cannot accommodate religious requests. The U.S. Supreme Court heard arguments in the case on March 21, and announced the decision May 31.

RLUIPA was under attack in Cutter v. Wilkinson, which involves the rights of several Ohio prisoners to practice aspects of their religions, including Wicca, Satanism and the racial separatist Christian Identity Church. The sincerity of inmates' religion is an issue. The Sixth Circuit Court found RLUIPA unconstitutional in the case because of its "message of endorsement" that "has the effect of encouraging prisoners to become religious in order to enjoy greater rights." The Fourth, Seventh and Ninth circuits have upheld RLUIPA's constitutionality.

Why it Matters
The Supreme Court's decision will have far-reaching implications, including whether American Indian prisoners may grow their hair long for religious reasons, Jewish and Muslim inmates can be forced to handle pork, Catholic prisoners may wear a crucifix, Jews behind bars can have a kosher diet and Christian inmates can receive communion wine.

Also at issue is a less dramatic but perhaps more common set of concerns: Houses of worship across the country sometimes are made to jump through hoops by governmental zoning and planning departments in order to build, locate or expand in neighborhoods or commercial areas. RLUIPA protects religious institutions from prejudice in land use decisions.

Questions for reporters
People across the religious spectrum are working together to preserve RLUIPA. You'll find conservative Christians fighting for the rights of Wiccans and Muslims, Orthodox Jews protecting the freedoms of the Christian Identity Church, and liberal civil rights activists such as People for the American Way, Americans United for Separation of Church and State and the ACLU working alongside the conservative Christian Legal Society, the Mormon Church and Prison Fellowship Ministries. Have friendships and associations developed across otherwise hard-and-fast partisan lines? Have those relationships changed the views of longtime antagonists?

Interview prison officials and inmates about the perennial tension between the need for prison security and inmates' right to practice religion, considered by many to be a force for rehabilitation benefiting both the individual and society. City and county jails, too, are subject to RLUIPA provisions if they receive federal funds.

What do congregations, city officials and neighborhood leaders in your area say about RLUIPA's land use provisions? How are the different sides working to resolve any tensions that have developed?

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Click the map for interview sources in your state and region

National sources

• Douglas R. Cole, Ohio's solicitor general, is attorney of record for the state's prisons in Cutter v. Wilkinson. Contact through Kim Norris, 614-466-3840, KNorris@ag.state.oh.us. Assistant Attorney General Todd Marti in Ohio's prison litigation office has been in the forefront of fighting both RFRA and RLUIPA. Contact through Norris or through Bob Beasley, 614-466-3840, bbeasley@ag.state.oh.us.
• David Goldberger is the attorney of record for the prisoners, the plaintiffs in Cutter v. Wilkinson. He is a law professor and director of clinical programs at Ohio State University College of Law in Columbus. Contact 614-292-1536. Benson A. Wolman of Wolman, Genshaft & Gellman in Columbus is co-counsel, representing plaintiff John Gerhardt. Contact 614-280-1000.
• Melissa Rogers was a leader in the coalition that urged Congress to pass RLUIPA. She is an expert on church-state issues, having previously been founding executive director of the Pew Forum on Religion and Public Life and general counsel of the Baptist Joint Committee on Public Affairs. She now serves as a visiting professor of religion and public policy at Wake Forest University Divinity School in Winston-Salem, N.C. Contact 336-758-5121 or 202-904-4936, rogersm@wfu.edu.
• Professor Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City. She is a visiting scholar at Princeton Theological Seminary and an expert on constitutional law who often consults on cases before the U.S. Supreme Court. She represented the city of Boerne, Texas, before the Supreme Court, resulting in the landmark decision in Boerne v. Flores overturning the Religious Freedom Restoration Act. She says that with RLUIPA, Congress has tilted the scale toward inmate religion and away from prison administrations, resulting in expensive and needless litigation, sham religions and weakened prison security. On the land use side, the law has been "a disaster," she says. "Talk to any city in the country." Contact 215-353-8984, hamilton02@aol.com.
• The National League of Cities opposes RLUIPA as burdensome to municipalities. Contact Veronique Pluviose-Fenton, principal legislative counsel, 202-626-3029, Pluviose-Fenton@nlcmutual.com.
• Derek Gaubatz is senior legal counsel at the Becket Fund for Religious Liberty, an interfaith law firm that aggressively litigates cases involving federal or state religious constitutional issues. He has devoted much of his career to supporting RLUIPA and religious freedom. He has authored several briefs that Becket has submitted in cases where religious liberty, particularly RLUIPA, is challenged, and he wrote a forthcoming law review article on the act. Contact 202-955-0095, dgaubatz@becketfund.org.
• Marc D. Stern is co-director of the Commission on Law and Social Action of the American Jewish Congress. In the late 1990s the AJC organized the Coalition for the Free Exercise of Religion, which supported the Religious Freedom Restoration Act, predecessor law to RLUIPA. Read a 1997 news release listing the coalition's member organizations. Contact 212-879-4500, communications@ajcongress.org.
• Eliot Mincberg is legal director of People for the American Way. Mincberg co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise of Religion. Contact 202-467-4999.
• Attorney Gene Schaerr helped draft RLUIPA, testified on its behalf before Congress and has been heavily involved in defending it. He co-chairs the RLUIPA Litigation Task Force, an arm of the Coalition for the Free Exercise of Religion, the driving force behind the law in Congress. Contact 202-736-8141, schaerr@sidley.com.
• Greg Baylor is director of the Center for Law and Religious Freedom, the legal advocacy arm of the Christian Legal Society. The 42-year-old society advocates for religious liberty from its base in Annandale, Va. The center was a key player in the process that resulted in RLUIPA, as a member of the Coalition for the Free Exercise of Religion. Contact 703-642-1070 ext. 3502, GBaylor@clsnet.org.
• Hollyn Hollman is general counsel of the Baptist Joint Committee, dedicated to advancing religious liberty and protecting church-state separation. The committee, which is based in Washington, D.C, submitted a brief in Cutter v. Wilkinson supporting RLUIPA. Hollman is the BJC's representative to the Coalition for Free Exercise of Religion. Contact 202-544-4226, hhollman@bjcpa.org.
• David Fathi is senior staff counsel at the ACLU National Prison Project, based in Washington, D.C., which litigates to enforce the Constitution for those in prison. He has been deeply involved in supporting RLUIPA and says the ACLU will file an amicus brief, either independently or with others. Elizabeth Alexander is project director. Contact 202-393-4930, dfathi@npp-aclu.org.
• Pat Nolan is president of Justice Fellowship, the public policy arm of Prison Fellowship. Prison Fellowship has intervened as a friend of the court in Cutter v. Wilkinson. Nolan, a former California state assemblyman, served prison time on racketeering charges and experienced a religious conversion there. Nolan faults the Ohio court's decision in Cutter v. Wilkinson for letting prison authorities decide whether to accommodate prisoners' exercise of religion, something he says has been proven to better their lives and give them hope for successful re-entry to society. Contact through Jennifer Sheran, 770-813-0000 (office), 770-757-5031 (cell), Sheran@demossgroup.com.
• Paul Rogers is president of the American Correctional Chaplains Association. He can talk about uses and abuses of the law by prisoners and whether he observes an increased risk to security, or increased chances of rehabilitation, because of RLUIPA. Contact 920-324-6298, Paul.Rogers@doc.state.wi.us.
• Rabbi Menachem M. Katz is director of prison programs at the Aleph Institute, http://www.aleph-institute.org/ in Surfside, Fla., which provides Jewish services and support for inmates. It publishes bulletins for wardens, chaplains and institutional staff regarding Jewish daily and holiday religious practices. Aleph maintains a telephone hotline so institutional staff may get answers to questions about Jewish practices, and the institute works with such staff to help avoid litigation over the constitutional rights of Jews to, for example, get kosher food. The institute was one of several signatories to the Becket Fund's amicus brief supporting RLUIPA provisions in Cutter v. WilkinsonContact 305-864-5553, mmk@aleph-institute.org.
• Suzan Shown Harjo, of Cheyenne and Hodulgee Muscogee lineage, is a founding trustee of the National Museum of the American Indian and a longtime activist on behalf of American Indians' religious liberty. Contact 202-547-5531.
• Michael Lieberman, Washington counsel for the Anti-Defamation League, says that this case and the recent history of many disparate groups working together for religious liberty has made a number of unlikely allies, allowing people to become friends across partisan lines. The ADL has a long history of working for religious freedom. Contact 202-261-4607, mlieberman@adl.org.
• The Rev. Barry Lynn, director of Americans United for Separation of Church and State, which often is at opposite sides of the issue from many RLUIPA supporters, in this case is also a supporter. Lynn says the Supreme Court has been too restrictive regarding religious freedom. Lynn advocates upholding RLUIPA in Cutter v. Wilkinson. Read an AU news release. Contact 202-466-3234.
• University of Texas law professor Douglas Laycock represented St. Peter's Church, whose plans for expansion were at the heart of the landmark Boerne v. Flores case. Contact 512-232-1341, dlaycock@mail.law.utexas.edu.

Background

CUTTER V. WILKINSON
• The Pew Forum on Religion and Public Life offers a legal analysis of the U.S. Supreme Court’s decision.
• RLUIPA.com outlines the issues in the Cutter v. Wilkinson with hotlinks to past court decisions, briefs, news stories and other resources.
• The First Amendment Center’s outline of the case includes hotlinks to briefs filed and the parties involved.
• See Duke Law School’s description of the case.
• Follow the status of the case at the Supreme Court's web site.
• According to professor Melissa Rogers, one of the principals in the movement to win passage of RLUIPA, and professor Marci Hamilton, who successfully argued against similar legislation before the U.S. Supreme Court, what's at issue in Cutter v. Wilkinson is whether RLUIPA's institutionalized-persons provisions are constitutionally valid. These provisions require state and federal officials to lift unnecessary governmental burdens on religious practice by prisoners and others institutionalized by the government. The 6th U.S. Circuit Court of Appeals in Cincinnati ruled that the provisions violate the First Amendment's Establishment Clause, but several other appellate courts have ruled differently. See a Findlaw.com summary of Cutter v. Wilkinson.
• In addition to considering the provisions' constitutionality under the Establishment Clause, the court might address whether they are a proper exercise of congressional power.

ABOUT RLUIPA
• Read the text of RLUIPA, the Religious Land Use and Institutionalized Persons Act of 2000, posted by the Becket Fund for Religious Liberty. The Becket Fund also hosts RLUIPA.com, which tracks lower court decisions on the act's constitutionality, a section on religious freedom and land use and another on prisons.
• The Pew Forum on Religion & Public Life has published a non-partisan backgrounder on the RLUIPA case recently issued an addendum, analyzing the Supreme Court’s opinion in the case. The website contains transcripts from recent public events on RLUIPA.
• Read an FAQ about RLUIPA and other issues of religious liberty and the law by the First Amendment Center at Vanderbilt University in Nashville.
• RLUIPA, passed in 2000, was not the first law of its kind. In the 1990s, a large interfaith group, the Coalition for the Free Exercise of Religion, formed after the U.S. Supreme Court dramatically diminished the constitutional protection of religious exercise in a case called Employment Division v. Smith. The coalition drafted and lobbied for passage of the Religious Freedom Restoration Act. RFRA became law in 1993 but was struck down in 1997 as too broad, in the case of City of Boerne v. Flores. Read a history of the RFRA at ReligiousTolerance.org. Read the act at The Religious Movements Homepage Project at the University of Virginia.
• For a concise explanation of how the Supreme Court struck down RFRA and other background on religious freedom and legislation, see an online essay at Religioustolerance.org, sponsored by Ontario Consultants on Religious Tolerance.

RELATED CASES
• Bass v. Madison: In April 2004, Virginia prison officials ask the U.S. Supreme Court to review a prison case with issues similar to those in Cutter v. Wilkinson - whether RLUIPA is unconstitutional under the Establishment Clause. The question of review is still pending.
• City of Boerne v. Flores: The Supreme Court strikes down the RFRA, predecessor to RLUIPA, in 1997.
• Madison v. Riter: In 2003, the 4th U.S. Circuit Court of Appeals upholds the constitutionality of RLUIPA in this prison case.
• Charles v. Verhagen: In this land use case, the 7th U.S. Circuit Court of Appeals rules in 2003 that RLUIPA was a constitutional exercise of congressional power. See a summary.
• Mayweathers v. Newland: A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in 2002 that RLUIPA merely accommodates and protects the free exercise of religion, which the Constitution allows. Read the case at Findlaw.com.
• Freedom Baptist Church v. Township of Middletown: See a June 3, 2002, New York Times article on the web site of Shields & Hoppe, the Media, Pa., law firm that represented Freedom Baptist, which prevailed in this zoning case.
• The Becket Fund posts a list of related cases.

ARTICLES AND SOURCE MATERIALS
• Read the text of RLUIPA, the Religious Land Use and Institutionalized Persons Act of 2000, posted by the Becket Fund for Religious Liberty. The Becket Fund also hosts RLUIPA.com, which tracks lower court decisions on the act's constitutionality, a section on religious freedom and land use and another on prisons.
• Read an FAQ about RLUIPA and other issues of religious liberty and the law by the First Amendment Center at Vanderbilt University in Nashville.
• Professor Doug Linder at the University of Missouri-Kansas City School of Law has compiled an excellent online resource on free exercise of religion.
• Read an Oct. 12, 2004, Associated Press article on the U.S. Supreme Court agreeing to hear Cutter v. Wilkinson. A Nov. 10, 2003, Associated Press article about the 6th U.S. Circuit Court of Appeals finding RLUIPA unconstitutional.
• Read "Pagans Behind Bars: Nature Religions Flourish in an Unnatural World," a Beliefnet article by National Public Radio correspondent Margot Adler.
• Violent crime is decreasing in the United States, but the prison population is growing. Read a Nov. 8, 2004, column by Poynter's Al Tompkins on the issue and on the graying of prison populations.
• In an article published in the George Mason Law Review, Becket Fund attorneys Roman Storzer and Anthony Picarello Jr. write that churches are being eliminated from downtown and commercial areas because municipalities believe they do not attract enough traffic to generate retail and tax revenues. At the same time, Storzer and Picarello say, churches are being kept from residential districts for creating too much traffic and noise.
• For background and sources on Native American civil rights in prison and elsewhere, see a Nov. 30, 2004, ReligionLink tip.