Cutter, Jon, et al. v. Wilkinson, Reginald (Dir., Ohio Dept. of Rehabilitation and
Correction), et al.
Docket: 03-9877
Term: 04-05
Appealed From: 6th Circuit Court of Appeals (Nov. 7, 2003)
Oral Argument: after Jan. 19, 2005
Opinion Issued:
Subject: Congressional power, Spending and Commerce clauses, 1st Amendment, establishment
clause, 10th Amendment, inmates, Religious Land Use and Institutionalized Persons Act
(RLUIPA)
Questions presented: Whether Congress violated the Establishment Clause by enacting the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 through §
2000cc-5, which requires state officials to lift unnecessary governmental burdens imposed on the
religious exercise of institutionalized persons under their control?
BY LORI FRADKIN, MEDILL NEWS SERVICE
It’s not every day that a Satanist, a witch, a racial separatist and two polytheists unite, but
together they are fighting for their right to practice their religious beliefs in prison.
Passed by Congress in September 2000, the Religious Land Use and Institutionalized Persons Act
(RLUIPA) states that government should not "impose a substantial burden on the religious
exercise of a person residing in or confined to an institution" unless it can demonstrate a
compelling interest necessitating the imposition. And if government does demonstrate the
interest, it must impose the burden using the "least restrictive means" possible. Essentially, prison
inmates should be allowed to practice their religious beliefs freely unless the government has a
strong reason to prohibit it.
Prior to the enactment of the federal law, inmates in Ohio state prisons filed suits against the Ohio
Department of Rehabilitation and Corrections (ODRC), claiming that prison officials were
denying them their right to religious exercise.
John Miller and Daryl Blankenship, members of a polytheistic religion called Asatru, claimed
that they were not allowed to wear religious medallions, even though the jewelry was similar to
that of mainstream religions.
John Gerhardt was a member of the Church of Jesus Christ Christian (Christian Identity Church),
whose followers believe that races should be separate. He, Miller and Blankenship claimed they
were denied the opportunity for group worship.
Jon Cutter said he was a Satanist, and J. Lee Hampton said he was a Wiccan witch.
All the plaintiffs claimed they were denied access to religious literature. According to their
attorney David Goldberger, prisoners can use their inmate accounts to order books, but when the
reading material arrives, officials determine whether it is appropriate or if should be sent back or
mailed to a designated family member.
Ohio Solicitor General Douglas Cole said officials might also regulate grooming habits that could
be used to signify gang membership or religious artifacts that could be used as weapons.
"The notion is the state has an obligation to maintain security in the prison environment," Cole
said.
The case originated as three separate suits, and each was amended to include the RLUIPA as a
basis for relief once it became law. The suits were combined into one when Ohio moved to
dismiss on the grounds that the RLUIPA was unconstitutional.
Ohio argued that the RLUIPA violated the 1st Amendment's Establishment Clause because it
acted as a governmental endorsement of religion. It also said the RLUIPA’s requirements were
not connected closely enough with the federal funds sent to the state to justify use of the
Spending Clause of the Constitution.
In addition, Ohio maintained that the federal law wasn't tied sufficiently to state commerce to
invoke the Commerce Clause. Finally, it argued that the RLUIPA violated state sovereignty
protected by the 10th Amendment and stripped away the "immunity from federal damage suits"
granted in the 11th Amendment.
"Congress is trying to interject itself in core state functions," Cole said.
Besides challenging the constitutionality of RLUIPA, the Ohio correction officials said religion
was used as a disguise for gang activity within the prisons. They said the RLUIPA led to
"degradations of security."
The American Jewish Congress filed a friend-of-the-court brief in March 2001 supporting the
constitutionality of the RLUIPA. It said use of the Spending Clause required that a law be enacted
in pursuit of the general welfare and the RLUIPA met this condition.
According to the brief, "it was surely reasonable for Congress to have concluded that religious
activity by inmates reduces the risk of recidivism or that the general welfare requires respect for
certain rights even for those incarcerated by the states." It said Ohio didn’t have to accept the
federal funds associated with the act if it wanted to "ignore what it deems frivolous complaints."
Supporters of the RLUIPA also argue that it is constitutionally valid under the Commerce Clause
because inmates buy religious medallions or literature only available in other states, Goldberger
said. In addition, the prisoners themselves are often transferred between jurisdictions.
On Aug. 27, 2001, U.S. Magistrate Terence P. Kemp recommended that the district court deny
the state’s motion to dismiss. He ruled that RLUIPA is a proper application of the Establishment
Clause and Spending Clause. He also held that the law was consistent with the 10th and 11th
amendments.
U.S. District Judge Edmund Sargus Jr. adopted Kemp’s recommendation about six months later
in ruling that the law was constitutional. The state officials then appealed to the 6th Circuit Court
of Appeals, whose jurisdiction covers Ohio, Michigan, Kentucky and Tennessee.
Ohio challenged the law on the same constitutional grounds as it had in the district court, but the
6th Circuit panel ruled only on the Establishment Clause. On Nov. 7, 2003, it reversed,
unanimously declaring the law unconstitutional as a violation of the Establishment Clause.
In an opinion written by Judge Ronald Lee Gilman, the panel stated that the law "advanced
religion by giving religious prisoners a preferred status in the prison community."
"RLUIPA also has the effect of encouraging prisoners to become religious in order to enjoy
greater rights," Gilman wrote.
The ruling conflicted with decisions in the 4th, 7th and 9th circuits, which all upheld the
RLUIPA.
The Becket Fund, a law firm devoted to defending religious expression, filed an amicus brief in
December 2003 urging the 6th Circuit to rehear the case. The document was filed on behalf of the
Aleph Institute, the ACLU, the American Jewish Committee, the American Jewish Congress, the
Baptist Joint Committee on Public Affairs and the Union of Orthodox Jewish Congregations of
America.
The Beckett brief contended that the 6th Circuit’s ruling was not a proper application of the
Establishment Clause, and cited other Ohio laws whose exclusive purpose was to accommodate
religious practices. For example, one statute gives minors the right to drink alcohol for religious
occasions. Another allows citizens to vote absentee when an election falls on a religious occasion.
The 6th Circuit denied all petitions for a rehearing, so in April 2004, Goldberger filed a petition
on behalf of the prisoners seek Supreme Court review. Despite Ohio’s win in the 6th Circuit, the
state too urged the high court to accept the case.
"This is an important issue for the Court to resolve because of the circuit split," Cole said.
Because the U.S. government had an interest in defending the constitutionality of a federal law,
the Solicitor General's office also filed a brief with the Court. But the office asked the Court to
hear a similar case stemming from Virginia (Madison v. Riter, now Bass v. Madison) first
because the Ohio case was more complicated and involved more than just the Establishment
Clause.
In his brief on behalf of Ohio, Cole asked the justices to consider all constitutional challenges
related to the RLUIPA. He said problems could occur if the issues were addressed in isolation: "If
the Court reviews only the Establishment Clause issue now, it might sustain the law by, perhaps,
a 6-3 vote. Then, in a few years, the Court might sustain the law against the Spending Clause
challenge, again by a 6-3 vote—but with a different three Justices in dissent. At that point, a
majority of six Justices will have found the law unconstitutional, but the law will stand, as it will
have separately withstood both challenges."
Cole also explained the government’s interest in not granting all religious rights to the prisoners.
"Those whose agendas overlap with disruptive gang activity often invoke demands for religious
freedom. For example, plaintiff Gerhardt is a racial separatist, and no one doubts that racial strife
is a problem in our prisons," he wrote in his brief.
Goldberger said that if a prisoner is using religion as a cover for gang activity, he or she should
not receive protection under the RLUIPA. But he argued the law itself is still constitutional. In the
case at hand, Ohio has stipulated that the prisoners’ beliefs are part of legitimate religions.
On Oct. 12, 2004, the Court accepted the case for review and allowed Cutter to have his case
heard without costs.
Goldberger said his case touches a widespread, prominent issue and explained that the recent
presidential election demonstrates this country’s focus on religion. But he expressed some worry
about the Court’s acceptance of Cutter.
"I’m concerned that the Court took our case rather than the Bass case because our clients are quite
controversial," Goldberger said. "In a close case, a justice could get distracted by the fact that the
clients are so controversial."
The Court is being asked to first decide whether to reverse on Establishment Clause grounds,
Goldberger said. If it decides that the 6th Circuit misinterpreted the law, it can either remand the
case to decide other constitutional issues or it can decide these issues itself.
According to Goldberger, if the RLUIPA is declared unconstitutional, questions will arise about
other situations related to the Establishment Clause, such as the legality of military clergy as fulltime employees of the federal government.
Plaintiff Gerhardt emphasized the far-reaching effects of this case in a letter posted on the
Christian Identity Web site.
"I personally know of a few hundred around the country, in various prisons and jails, or under
some kind of supervision, who have a very keen stake in the outcome of this case. Actually, this
case [affects] millions more, outside as well as inside prisons," he wrote.
Attorneys:
Attorneys for Petitioner:
David Goldberger
Ohio State University College of Law
(614) 292-1536
Clinical Programs
55 West Twelfth Avenue
Columbus,OH 43210
Party name: Jon B. Cutter, et al.
Attorneys for Respondent:
Paul D. Clement
Acting Solicitor General
(202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W., Room 5614
Washington, DC 20530-0001
Party name: United States
Douglas R. Cole
State Solicitor General
(614) 466-8980
30 East Broad St., 17th Floor
Columbus,OH 43215
Party name: Reginald Wilkinson, Director, Ohio Department of Rehabilitation and Correction, et
al.
Related Links:
6th Circuit opinion (Nov. 7, 2003)
Petition for certiorari - Cutter
4th Circuit opinion in Madison v. Riter (now Bass v. Madison)[pdf file]
U.S. Solicitor General's brief in Bass v. Madison
Posted by doppelt at October 12, 2004 10:37 PM