Politics & Policy


Supreme Court breaks from the standard on a religion case.

It is always easy to focus on the divisions and disagreements between and among the Supreme Court justices. Particularly in cases involving the usual hot-button suspects–e.g., religion, abortion, race–the standard story line involves 5-4 splits, convoluted concurring opinions, and close parsing of the tea leaves provided by a few “swing” justices.

Of course, there’s a reason for that standard line: It so often fits the story. Still, it is always worth noting–if only to complicate the account–the Supreme Court’s occasional unanimous rulings in not-obviously-slam-dunk cases. Last week, for example, in Lingle v. Chevron USA, the justices agreed that while the question whether a regulation of private property “substantially advance[s]” a “legitimate state interest[s]” might well be an important one, it is not relevant to the question whether that same regulation constitutes a regulatory “taking” within the meaning of the Fifth and Fourteenth Amendment to the Constitution. (In other words, a piece of regulation that reduces the value of private property can be foolish or inefficient without, for that reason, triggering the government’s obligation to provide “just compensation.”). And, on Tuesday, in a much-watched religious-freedom case called Cutter v. Wilkinson, the Court upheld–with no dissents–that the federal Religious Land Use and Institutionalized Persons Act of 2000.

The law provides, in the relevant part, that “no government shall impose substantial burden on the religious exercise of a person residing in or confined to an institution” unless that burden furthers a “compelling governmental interest” and does so by “the least restrictive means.” In a nutshell, the act goes beyond what the Free Exercise Clause requires in accommodating the religious beliefs and practices of persons “confined” in “institutions” that receive federal funds. (That clause is today understood as protecting religious believers and practices against discrimination, but not as conferring on believers a constitutional right to exemptions from burdensome, but generally applicable, laws and regulations.)

The petitioners in Cutter were current and former inmates of Ohio prisons who adhere to what everyone is delicately calling “non-mainstream” religions, e.g., “Satanism.” When these religionists complained that Ohio was not accommodating their religious needs to the extent they believed the act requires, Ohio responded with the argument that the law itself unconstitutionally “establishes” religion. And, the United States Court of Appeals for the Sixth Circuit agreed, ruling that the act “impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights”, and noting that it “encourag[es] prisoners to become religious in order to enjoy greater rights.” In other words, the court concluded that Congress had gone too far, and crossed the line between permissible accommodations and unconstitutional preferences and promotion.

Ginsburg Leads the Pack

Justice Ruth Bader Ginsburg–a jurist whom no one could accuse of being cavalier about possible entanglements between religion and government–wrote the opinion for a unanimous Supreme Court reversing the Sixth Circuit. She reaffirmed that the Constitution leaves “some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause,” and determined that the act “fits within the corridor between the Religion Clauses.” This is because the act “alleviates exceptional government-created burdens on private religious exercise” in state-run institutions “in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise.”

At the same time, Justice Ginsburg was careful to note, the act does not “elevate accommodation of religious observances over an institution’s need to maintain order and safety. . . . [A]n accommodation must be measured so that it does not override other significant interests”, including the government’s entirely appropriate prison-security concerns. She also emphasized that the law “does not differentiate among bona fide faiths,” “confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.”

Now, the “bottom line” in Cutter comes as no surprise; most observers expected that the justices would reject the intermediate court’s conclusion that Congress had impermissibly “advanced” religion merely by tinkering with the standard to be used when evaluating prisoners’ requests for accommodations. Still, the ruling is important, and interesting, for a number of reasons.

For starters, Cutter highlights the flip-side of the “play in the joints” argument on which the Court had relied in last year’s marquee religion-clause case, Locke v. Davey. In that case, the Court ruled (incorrectly, in my judgment) that the State of Washington’s decision to deny scholarship benefits to an otherwise eligible college student, merely because the student elected to major in theology, did not violate the Free Exercise Clause. The majority in that (non-unanimous) case recognized that the Establishment Clause would permit Washington to provide the scholarship, but insisted that the Constitution did not require equal treatment in this situation. There is, the Court stated, some “play in the joints” between what the Establishment Clause permits and what the Free Exercise Clause requires. In Cutter, the justices acknowledged that this argument cuts both ways: There is also “play in the joints” between what the Free Exercise Clause requires and what the Establishment Clause forbids.

Cutter is also interesting for the many questions left tantalizingly unanswered. For example, even if the prison-related provisions of law do not “establish” religion, what about the land-use and zoning-related provisions? Or, even if the act does not run afoul of the First Amendment, does Congress have the power to enact the law in the first place? (Remember, the Rehnquist Court has several times reminded us that ours is a federal government of enumerated and limited powers, and that just because a policy is wise or humane does not mean Congress has the power to pursue it through regulations). And, the justices determined only that the law itself did not violate the First Amendment; they left open the possibility that particular applications of the law might nonetheless fall short of constitutional requirements. All these (and many other) questions are being litigated, and will almost certainly be confronted by the Court.

Finally, engaged readers and constitutional-law students should spend some time with Justice Thomas’s typically provocative concurring opinion. In that opinion, he restates his view that the Establishment Clause has been badly misunderstood over the last 50 years, and converted from a federalism provision–one that protected the states’ church-state arrangements from federal interference–to a general requirement that governments not endorse or even acknowledge religion. As he did in Elk Grove School District v. Newdow, last year’s Pledge of Allegiance case, Justice Thomas reminds us that the Establishment Clause prohibited Congress “from enacting legislation ‘respecting an establishment of religion’; it does not prohibit Congress from enacting legislation ‘respecting religion’ or ‘taking cognizance of religion.’” The act, he noted, “is a law respecting religion, but not one respecting an establishment of religion.” To be sure, when it comes to the religion clause, Justice Thomas appears to be alone, or at least lonely, on the Court. Still, he is doing us all a service by challenging us to rethink longstanding, but possibly ill-founded, premises and doctrines.

In a few weeks, or even days, the Justices will hand down decisions in big-ticket cases involving public displays of the Ten Commandments. It would not be going out on a limb to say that no one should expect Tuesday’s unanimity to be on display in these upcoming cases. Stay tuned.

Richard W. Garnett is an associate professor at Notre Dame’s law school.


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