RLUIPA and the Establishment Clause.

The Supreme Court has held that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which requires states to accommodate prisoners by relieving burdens on their free exercise of religion, does not violate the Establishment Clause.

Justice Ginsburg writes the opinion, for a unanimous Court. She notes that the law "alleviates exceptional government-created burdens on private religious exercise," that it does not "elevate accommodation of religious observances over an institution’s need to maintain order and safety," and that it does not prefer one religion over another religion.

It's important to see that the Court was looking at the statute in general, not at a specific application of the statute. If the statute in general violated the Establishment Clause, then "all manner of religious accommodations would fall":

Congressional permission for members of the military to wear religious apparel while in uniform would fail, as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate “traditionally recognized” religions: The State provides inmates with chaplains “but not with publicists or political consultants,” and allows “prisoners to assemble for worship, but not for political rallies.”

It remains to be seen what will happen in particular cases, where prisons assert that they have a "compelling interest" in discipline or some other such matter, and the prisoner claims a "substantial burden" on religion. The Court assumes courts will keep prisoners from having much success using the Act:

We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard, see supra, at 5, “[c]ontext matters” in the application of that standard.

Shouldn’t we worry that applying the statute in the context of prisons will lead courts to broaden what is a "compelling interest" and reduce the protection given to the right against race discrimination? The Court’s citation at this point is University of Michigan affirmative action case, Grutter v. Bollinger. That is, the Court has already made “compelling interest” susceptible to “context” in the race discrimination area. It seems that where the courts respect the government activities in question, they will regard more interests as compelling.

In this case, the Court signals that prison discipline deserves plenty of respect:

Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103—111, p. 10 (1993)).

What of the argument that the statute privileges religion over nonreligion? It says to prisoners, if you package your requests as religious needs -- a special meal, a special book -- you'll get better treatment. The Court dealt with this problem in footnotes 10 and 11, coming up with basically three answers:

1. The benefits to be gained are not that enticing:

While some accommodations of religious observance, notably the opportunity to assemble in worship services, might attract joiners seeking a break in their closely guarded day, we doubt that all accommodations would be perceived as “benefits.” For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet “a fruit, a vegetable, a granola bar, and a liquid nutritional supplement–each and every meal.”

2. The state already gives special treatment to requests based on religion -- it “provides chaplains, allows inmates to possess religious items, and permits assembly for worship” -- and we wouldn’t want to make that unconstitutional.

3. The state’s needs will come in for good-enough deference as courts define “compelling interest” fairly broadly.

Justice Thomas concurs, applying his federalism theory of the Establishment Clause, which is that the clause only forbids the federal government from interfering with established religions in the states. But in this case, the state doesn't have an established religion, the state is resisting accommodating religion.

This provision does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion.

It's important to note the questions the Court did not reach. It did not consider whether Congress had the power to pass RLUIPA using either the Commerce Power or the Spending Power and whether it violates the Tenth Amendment. It only decided that the act, taken on its face, didn't violate the Establishment Clause. As noted, it remains possible to challenge the act under the Establishment Clause as it is applied in particular cases.