Catering to religious constituents and ignoring federalism values: the Religious Land Use and Institutionalized Persons Act.

The Supreme Court heard oral argument yesterday in Cutter v. Wilkinson, a case about the Religious Land Use and Institutionalized Persons Act. This is an important case about religious freedom and federalism. The Free Exercise clause standing alone does not require the state to give special accommodations to religious believers, but Congress has attempted to require the states, as it runs its prisons, to make those accommodations.

The government "follows the best of our traditions" when it relieves burdens on religious practice for all religions, not just "majoritarian" ones, the acting solicitor general, Paul D. Clement, told the justices....

Douglas R. Cole, Ohio's state solicitor, asked the justices: "Can Congress really say to prisoners, 'We'd like you to be religious and we'll give you a better show for getting out from the rules that apply to everyone else?' "...

He also said the law provided an "impermissible incentive" to inmates to adopt a religion as a way of obtaining favored treatment. He said the law invited "constant pressure, day after day, if you want this set of benefits, get religion."

Quite aside from whether the Establishment Clause even permits states to choose to give special treatment to prisoners who invoke religion, the federal statute is a severe intrusion into the way states run their prisons. Was that intrusion justified? Were the states really inconsiderate of the religious needs of prisoners? Or was this like the Schiavo legislation -- Congress catering to its religious constituents and ignoring federalism values?