Religious Liberty Decision

The Supreme Court issued an opinion yesterday in a major religious liberty case, Cutter v. Wilkinson. The case involves the Religious Land Use and Institutionalized Persons Act, passed by Congress in 2000, which said that jails and prisons could not "impose substantial burden on the religious exercise of a person residing in or confined to an institution" unless there was a "compelling governmental interest" at stake and the "least restrictive means" was used to secure that interest. The suit was brought by a group of inmates and former inmates against the state of Ohio, who claimed that the prison refused to allow them to practice their religion, Satanism. In a unanimous decision, the Supreme Court ruled for the inmates and against the state. Justice Ginsburg wrote the majority decision, and Clarence Thomas wrote a concurring opinion in which he reiterated his position that the Establishment clause was solely a federalism provision and therefore not incorporated against the states (more on that in a later post).

The state of Ohio had argued that the RLUIPA was itself an establishment of religion because it treated religion as something that must be accomodated, while non-religious beliefs did not have to be accomodated. The court rightly rejected that argument. Richard Garnett of the Notre Dame law school has a pretty good review of the decision in NRO.

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So activist judges are in the pay of Satan, too? I always knew it. When, oh when, will they turn back to the Christian foundations of America and the Common Law?

[Runs away very quickly, hiding the spray can...]

"...the Establishment clause was solely a federalism provision and therefore not incorporated against the states"

I agree that it WAS solely a federalist provision. I would think the 14th amendment changes the rules a bit.

I am looking forward to your post on this issue.

I'm going to have more to say on this. The problem with the "Establishment Clause is a federalism only provision" argument is that the entire Constitution, in many ways, was a federalism document.

The Free Exercise and Free Speech clauses were also federalism only clauses insofar as they only applied to the federal government and left the states free to violate such rights.

John wrote:

I agree that it WAS solely a federalist provision. I would think the 14th amendment changes the rules a bit.

Well, these two issues are tied up together to some extent. Clarence Thomas takes two positions on the subject:
A. That the establishment clause was written solely to prevent the Federal government from tampering with state establishments of religion.
B. That the establishment clause is not incorporated against the states by the 14th amendment because it does not establish a positive right.
Thomas would thus overturn the entire body of rulings on state establishments - Engel, Epperson, Edwards, Everson, Lee, Lemon, and so forth. I think Thomas is wrong on both arguments, but of the two the second one is considerably more plausible. The historical record simply doesn't support the federalism-only interpretation of the establishment clause. During the debates over the wording of that amendment, there was no discussion at all about state establishments and federalism. The discussion focused entirely on what constituted an establishment of religion and what the Federal government was prevented from doing at the federal level, not whether it could or could not interfere at the state level. Anyway, all of that and much more will go into a longer post on that particular subject. I need to finish reading a couple of articles before I write that though.

I am a novice so please bear with me.

It would seem to me that Thomas first point would be more plausible, since at the time of the adoption of the first ammendment, some states had established churches.

John wrote:

It would seem to me that Thomas first point would be more plausible, since at the time of the adoption of the first ammendment, some states had established churches.

Certainly true, but there was no concern voiced by those states that had official churches (all of them in New England, by the way) at the time that the new Federal government would do away with them. All of the discussion was focused on what the Federal government could or couldn't do at the Federal level. The federalism-only interpretation would mean that the Federal government is entirely free to establish an official church, so long as that establishment does not violate the free exercise clause, and that flies in the face of the historical record completely.

"The federalism-only interpretation would mean that the Federal government is entirely free to establish an official church, so long as that establishment does not violate the free exercise clause..."

It seems clear to me that the establishment clause flat out states that Congress can not establish a church, regardless of it's effect on free exercise.

I agree with you that Thomas is wrong. I am not trying to argue, I just want to try to understand the issue better.

I have to agree with John here. Surely "Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof" explicitly forbids both establishment and interference at the federal level. And similarly, if there was no debate about the effect on state-established churches, that woul support the (pre-14th) federalism only argument. If they thought the constitution would have prevented/revoked establishment by states, surely there would have been some mention in the debate.

By Ginger Yellow (not verified) on 02 Jun 2005 #permalink

I agree with you both. You're taking what I would call the "federalism-and" position, as opposed to the federalism-only position. The Federalism part of the amendment was the first part, "Congress shall make no law...". The establishment clause itself prevented a federal establishment of religion, it didn't just prevent the federal government from overturning a state establishment.

Ed, this is the best blog on the net.

It was also interesting to note, that much of Ohio's original complaints were that the state was "being forced" to provide access and services for those who were members of those pesky non-traditional religions. When i was working on the research for documentation of issues that led to the writing and eventual passing of the American Indian Freedom of Religion Act of 1978, i found that Ohio was one of several states from which a high number of complaints was generated regarding restricting and prohibiting American Indian religious practices in the prison systems.

The Commerce Clause(Article 1 Section 8 Clause 3) empowers only Congress to make laws concerning Indians. Though a unique class of "citizens," native indigenous tribal members were/are subject to Federal laws, and states for the most part have little to no say in their affairs. This is an instance in which Federalism trumps states rights; the AIFRAof '78 was not ruled unconstitutional and is used across this nation to guide the behavior of states, counties, cities, etc in their response to the religious issues.