Bench Memos

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Michael McConnell and the Religion Clause Mainstream


Last week, in Cutter v. Wilkinson, the Supreme Court unanimously upheld the Religious Land Use and Institutionalized Persons Act, Congress’s latest effort to accommodate the religious needs of prisoners. My take on the decision is available on NRO, here.

It is worth noting, as we all gather our breath for the upcoming judicial-nomination fights, that the (unanimous) Court’s framework for evaluating legislative accommodations of religion closely tracks the analysis advocated by then law professor (now Judge) Michael McConnell in a 1992 article, “Accommodation of Religion: An Update and a Response to the Critics.”
There, Judge McConnell argued that the Constitution required asking whether an accommodation “removes a significant obstacle to the exercise of a religious belief” or rather “induces the person to adopt (or feign) the religious belief in order to receive the benefits of the accommodation”; whether it imposes a “burden on nonbeneficiaries”; and whether it “favors one religion over another.”

Although Justice Ginsburg’s opinion for the Court does not cite this article, these are the same factors that she relied upon in upholding the religious freedom law for prisoners: whether it “alleviates exceptional government-created burdens on religious exercise”; whether it imposes “burdens . . . on nonbeneficiaries”; whether it is available “neutrally among different faiths”; and whether it creates an excessive incentive to change one’s religious behavior. Prior opinions had largely focused on the first factor–whether the accommodation removed a significant government-imposed burden on religion. The Court’s opinion in Cutter marks, I think, the first time it addressed all of these aspects of accommodation in an opinion joined by a majority of the Court.

Some have unpersuasively criticized the church-state views of Judge McConnell, a possible candidate for a future Supreme Court vacancy, as (there they go again . . . ) outside the “mainstream.” Evidently the nine members of the Court–led by left-leaning Democratic appointee Ruth Bader Ginsburg–do not agree.


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