Belief Behind Bars: Religious Freedom in Prison, RLUIPA, and the Establishment Clause

Transcription

1 Belief Behind Bars: Religious Freedom in Prison, RLUIPA, and the Establishment Clause Enrique Armijo 1. INTRODUCTION For the 17 years I've been in prison, people-from the outside and in here-have been telling me how bad I messed up. But Yokefellow is the only time anybody has ever tried to help me figure out what was going on inside of me when I committed that crime, and how not to do it again.l Whatever difference of opinion may exist as to whether prison discipline should be mainly directed to punish-to deter--or to reform, every one admits that it is necessary to check the growth of criminality and to attempt the reformation of criminals. The severest-the most vindictive-treatment of prisoners has never involved a refusal of their claims to whatever benefits might be conferred on them by Christian correction, warning, or consolation. 2 The religious freedom of incarcerated persons in the Fourth Circuit was threatened in January of 2003 by Madison v. Riter, in which a Virginia district court found that the incarcerated persons provision of the Religious Land Use and Institutionalized Persons Act of 2000 [hereinafter RLUIPA] was an unconstitutional violation of the Establishment Clause of the First Amendment of the United States Constitution. 3 The Fourth Circuit Court of 1. Testimonial of unidentified prisoner, in Yokefellow Prison Ministry of North Carolina : Celebrating 25 Years in the Ministry of Reconciliation 3 (Yokefellow Prison Ministry 1993) (on file with the North Carolina Collection, Wilson Library, University of North Carolina at Chapel Hill). 2. Rev. John Clay, Circular Letter to the Magistrates of North Lancashire, March 20, 1849, in THE PRIsON CHAPLAIN: A MEMOIR OF THE REV. JOHN CLAY 288 (Rev. Walter Lowe Clay ed., Patterson Smith 1969) (1861) F. Supp. 2d 566 (W.D. Va. 2003) [hereinafter Madison 1].

2 298 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 Appeals overruled the district court later that year. 4 Now however, with the Sixth Circuit's decision in Cutter v. Wilkinson, finding the same provision to be an unconstitutional favoring of religion, the religious rights of incarcerated persons face an uncertain future, one that will be determined by the Supreme Court when it hears Cutter on appeal. 5 The decisions and commentary regarding RLUIPA and the protections it offers the religious rights of incarcerated persons speak to the larger conceptual question of the government's role in accommodating religious individuals when it passes laws of general applicability which affect religious exercise. What is the state's role in ensuring the free exercise of religion, and at what point does that assurance become a grant of favored status, with one set of rules applicable to the religious and one to the nonreligious therefore constituting a violation of the Establishment Clause? Or alternatively, as the presence of the state becomes more prevalent in our lives, how does the government make law respective of the wall between church and state without building a wall around religion itself?. This Article argues that the Fourth Circuit's Establishment Clause analysis in Madison II is consistent with past applications of Lemon v. Kurtzman 6 and Supreme Court Establishment Clause doctrine, and therefore, the Court should resolve the split regarding the constitutionality of RLUIPA consistent with that opinion. Part I reviews the historical, social, and doctrinal justifications for a right to free exercise of religion for the incarcerated. Part II considers the judicial and legislative debate leading up to the passage of RLUIPA, beginning with the controversial Supreme Court decision of Employment Div., Dep 't of Human Resources of Oregon v. Smith. 7 Part III discusses Fourth and Sixth Circuit considerations regarding the constitutionality of RLUIPA as it relates to incarcerated persons. Part IV analyzes the Fourth Circuit's decision in light of recent Supreme Court Establishment Clause precedent and argues that the circuit court's rationale is consistent with existing doctrine. Part V briefly considers constitutional problems with RLUIPA that the Fourth Circuit did not reach in Madison II, and thereby anticipates other constitutional challenges to RLUIPA. Part V also proposes another mode of analysis that could serve to protect the religious rights of prisoners should RLUIPA be found an unconstitutional establishment of religion. The Article concludes that RLUIPA is a reasoned and tailored attempt to balance the religious liberty of the incarcerated with the interests of prison administrators. By 4. Madison v. Riter, 355 F.3d 310 (4th Cir. 2003) [hereinafter Madison 11] F.3d 257, 264 (6th Cir. 2003), cert. granted, 125 S. Ct. 308 (U.S. Oct. 12, 2004) (No ) U.S. 602 (1971) U.S. 872 (1990) [hereinafter Smith].

3 20051 BELIEF BEHIND BARS adopting the Fourth Circuit's Establishment Clause analysis in Madison H instead of the Sixth Circuit's incorrect application in Cutter, the Supreme Court will ensure the religious liberty of prisoners by upholding RLUIPA in a manner consistent with the Constitution. II. THE INCARCERATED INDIVIDUAL'S RIGHT TO FREE EXERCISE OF RELIGION The intent to protect religious exercise from governmental intervention within a fundamental individual rights framework predates the Constitution. 8 The right to religious liberty is the overriding interest which the religion clauses of the First Amendment seek to protect. The First Amendment guards the individual's right to be free from governmentally established religion and governmental action that excessively encumbers the right to express one's religion. 9 With respect to the Establishment Clause, the Framers felt that state establishment of religion had coercive effects on individual citizens which adversely affected the fundamental right to freedom of conscience. 10 The central tension in free exercise cases is the effect of government action of general applicability on an individual's right to religious belief and expression. 1 ' Central to both the Establishment Clause and the Free Exercise clause is the fundamental right to be free from significant governmental burden on one's beliefs. 12 Looking back on the religious liberty he ensured in his work at the Constitutional Convention in Philadelphia in advocating for the Bill of Rights, and later as President, James Madison stated that he had "no doubt that.., religion [and government] will both exist in greater purity, the less they are mixed together."' See, e.g., Louis FISHER, RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS (2002) (stating that the Supreme Court has consistently recognized that the Framers' intent in drafting the religion clauses was to provide Americans with the same kind of religious liberty afforded to colonists by Jefferson and Madison's Virginia Statute of Religious Freedom-the freedom of religious exercise from "civil incapacitations"). 9. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."). 10. See Lee v. Weisman, 505 U.S. 577, 592 (1992) ("A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346 (2002) (finding that the original intent of the Establishment Clause has its roots in the Lockean concept of liberty of conscience, and governmental establishment of religion frustrates this liberty). 11. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (stating that the free exercise clause "embraces two concepts-freedom to believe and freedom to act"). 12. See Michael W. McConnell, Accommodation of Religion, 1985 Sup. CT. REV. 1, 1 (1985). 13. Letter from James Madison to Edward Livingston (July 10, 1822), in JAMES

4 300 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 The incarcerated individual also enjoys rights under the Constitution, and courts have affirmed the principle that prisoners deserve protection from prison regulations that offend their fundamental constitutional rights. As the Supreme Court stated in Turner v. Safley, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution."' 15 However, the free exercise of religion, like other fundamental rights, is circumscribed in the prison context. 16 The Supreme Court has acknowledged that the daily existence of a prisoner is controlled by the state in the form of the prison institution, "in a way that few of us could imagine." 17 State control over the day-to-day, minute-to-minute activity of the prisoner's life leads to inevitable interference with free exercise rights of the incarcerated. Thus, the prisoner's exercise of his religious rights is controlled and often curtailed by general rules applicable to all prisoners which are often enforced by the prison administrator in the interest of prison security. 1 8 Courts have given significant deference to prison administrators in establishing regulations that affect prisoner's religious rights when those MADISON ON RELIGIOUS LIBERTY 83 (Robert S. Alley ed. 1985). 14. See, e.g., Procunier v. Martinez, 416 U.S. 396, (1974) (stating prisoners receive constitutional protection from overbroad prison rules regarding censorship of incoming and outgoing mail); Walker v. Blackwell, 411 F.2d 23, (5th Cir. 1969) (stating that prisoners have a right to access religious literature and communicate with religious leaders); MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: How THE COURTS REFORMED AMERICA'S PRISONS 40 (1998) (tracking the expansion of constitutional rights of prisoners in federal courts) U.S. 78, 84 (1987). 16. See, e.g., Pell v. Procunier, 417 U.S. 817, 822 (1974) (finding that a prisoner has only those constitutional rights which are not incompatible with his status as a prisoner); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (stating that a prisoner enjoys only those First Amendment rights which do not interfere with "legitimate penological objectives" of the correctional system). See also W.E. Shipley, Annotation, Provision of Religious Facilities for Prisoners, 12 A.L.R.3d 1276 (2005). 17. See O'Lone v. Estate of Shabazz, 482 U.S. 342, (1987) (Brennan, J., dissenting). 18. See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (finding that regulations which restrict prisoners' First Amendment rights regarding outgoing mail are in the interest of prison security); Benjamin S. Fischer, Power to the Prisoner: The Importance of State Religious Freedom Acts in Preserving the Religious Liberties of Prisoners, 10 J.L. & POL'Y 233, (2001) (stating that "[a] prisoner's religious freedom... is a tenuous liberty," and a prisoner's religious exercise is often regulated and under the control of prison officials); Developments of the Law-In the Belly of the Whale: Religious Practice in Prison, 115 HARV. L. REv (2002) [hereinafter Religious Practice in Prison] (stating that while prison regulations mandating uniformity of schedule, appearance and diet are priorities for security and economic reasons, those same regulations naturally conflict with prisoners' First Amendment right to religious liberty).

5 2005] BELIEF BEHIND BARS regulations are in the penological interests of the institution. In O 'Lone v. Estate of Shabazz, the Supreme Court articulated a test to uphold regulations that burden inmates' religious exercise so long as the reulation at issue is "reasonably related to legitimate penological interests."' 9 What is considered a "legitimate penological interest" is determined by the state, with significant deference granted to prison administrators. 20 Prisoner officials have been given broad discretion in establishing and preservinq order in the prison context, even in the face of free exercise challenges. 2 1 Part of the justification for this grant of discretion to interfere with constitutional rights lies in the difficulty of the charge which prison officials are given. 22 Other justifications arise from federalism and sovereignty concerns, and respect for the state's traditional and wellrespected role as developer and enforcer of criminal law. 23 Despite what seems like an inherent conflict between the constitutional rights of the individual prisoner and the administrator's need for uniform and collective regulation of the entire prison population, some commentators have argued that First Amendment rights take on added importance in the prison environment. The prison administrator's power to circumscribe or even revoke the prisoner's right to read a book, write a letter, or attend a religious meeting, as well as the total uniformity of the prison atmosphere, can make rights that are otherwise entrenched in everyday life more meaningful to a prisoner whose capacity to exercise his constitutional rights is far more tenuous. Professor Emily Calhoun finds judicial support for this proposition in case law: [F]irst Amendment guarantees taken for granted in society at large assume far greater significance [in prison]. The simple opportunity [to exercise a First Amendment right] supplies a vital link between the inmate and the outside world, and nourishes theprisoner's mind despite the blankness and bleakness of his environment U.S. at 349 (quoting Turner, 482 U.S. at 89). 20. See Turner, 482 U.S. at See id; O'Lone, 482 U.S. at 349; see also Marci A. Hamilton, Federalism and the Public Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act, 78 IND. L.J. 311, 341 (2003) (noting the Supreme Court's deferential posture towards prison administrators in free exercise challenges by prisoners against prison regulations). 22. See Procunier, 416 U.S. at (arguing that courts should give deference to prison administrators who regulate the relationship between the incarcerated and the outside world); Bell v. Wolfish, 441 U.S. 520, 540 (1979) (stating that the Constitution requires deference in areas, such as prison operations, which so clearly rest with the policymaking branches of government). 23. Hamilton, supra note 21, at Emily Calhoun, The First Amendment Rights of Prisoners, in PRISONERS' RIGHTS SOURCEBooK 43 (Ira P. Robbins ed., 1980) (quoting Wolfish v. Levi, 573 F.2d 118, 129 (2d

6 302 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 Constant control by the prison administrator over the prisoner's life can also complicate the important role that the development of a religious life can play in prisoner rehabilitation. Thus, allowing inmates to practice their religion benefits both the individual prisoner, as well as society at large. 25 The rehabilitative effects of religious practice and the social value of religious intuitions in the rehabilitation effort have also recently been recognized by the executive branch, and state and federal governments have instituted aggressive and constitutionally controversial efforts to facilitate the rehabilitative effects religion can have in an area that has traditionally been the task of the state. 26 In recognition of prisoners' rights to free exercise of religion, institutions have offered certain exemptions for prisoners from uniform regulations of general applicability. For example, prisons have accommodated religious prisoners' dietary requirements by offering pork- or meat-free diets, despite the additional costs and administrative expenses of preparing and providing such meals. 27 Correctional facilities also often allow inmates affiliated with religious groups to hold religious services, with all religious affiliations given equal access to available time and space. 28 However, grooming restrictions are generally upheld by courts when administrators argue that such exemptions can interfere with identification of inmates and provide Cir. 1978)). 25. See Barnett v. Rodgers, 410 F.2d 995, 1002 (D.C. Cir. 1969) (observing that allowing prisoners to practice religion furthers rehabilitation); FEELEY & RUBIN, supra note 14, at 38 (noting that in the interests of reform and rehabilitation inmates have been allowed a right to religious observance since the beginning of the modem penitentiary system); Matthew P. Blischak, O 'Lone v. Shabazz: The State of Prisoners' Religious Free Exercise Rights, 37 Am. U. L. REV. 453, 484 (1988) ("[P]ermitting prisoners to practice their religion arguably would provide significant benefits to the prison system and society."). 26. As part of the White House Faith-Based and Community Initiative, the Community Correction Center Project, a Department of Justice grant-making program to which faith-based organizations have been encouraged to apply, prepares federal offenders for re-entry into their home communities. Congress appropriated $143,000,000 of federal money for this program in FY See White House Office of Faith-Based and Community Initiatives, available at (last visited Apr. 23, 2005). On the state level, Florida recently announced a plan to open the Lawtey Correctional Institution, a faith-based prison near Jacksonville which will provide religious-based programs for 800 inmates who volunteer to be moved there. Prisoners will be involved in activities such as prayer sessions, religious studies, and religious counseling. To be accepted to Lawtey, inmates must be nearing release and have clean prison records for the past 12 months. See Jim Ash, Faith-Based Prison Planned, MIAMI HERALD, Dec. 6, 2003, available at (last visited Apr. 23, 2005). 27. Religious Practice in Prison, supra note 18, at Id. at 1905.

7 2005] BELIEF BEHIND BARS hiding places for contraband. 29 RLUIPA, which mandates the granting of prisoner religious exemptions, raises the issue addressed by this Article: Does the granting of a religious exemption from a generally applicable law constitute state establishment of religion in violation of the Constitution? 30 III. THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT: JUDICIAL DECLARATIONS AND LEGISLATIVE RESPONSES The road leading to RLUIPA, itself a reaction to a Supreme Court decision which struck down an earlier, broader statute that was protective of free exercise rights, is a wide-ranging and at times contentious dialogue between the judicial and legislative branches. Like the free exercise prison decisions mentioned above, this dialogue is marked along the way by each branch's attempts to balance the individual's protected right to exercise religious liberty and the state's capacity to regulate via laws of neutral applicability. When the collective laws passed by the state affect the religious exercise rights and liberties of the individual, each branch turns to its own interpretation of the original intent of the religion clauses in the First Amendment to justify the action it seeks to take. 31 The problem with such a results-based analysis, however, is that determining the intent of the religion clauses is at times as difficult as attempting to define religion itself Id. at 1909 (citing Jackson v. Dist. of Columbia, 89 F. Supp. 2d 48, (D. D.C. 2000)). 30. As shown below, this Article argues that the answer is no. See infra Part IV(B) (reviewing the argument that governmental accommodation based on religion constitutes a violation of the Establishment Clause). 31. See, e.g., Smith, 494 U.S. 872, (1990) (finding that the First Amendment's protection of religious liberty does not require exemptions from civic obligations, and the carving out of such exemptions is not a constitutional function, but should be left to the political process). But see Sen. Orrin G. Hatch, Religious Liberty at Home and Abroad: Reflections on Protecting this Fundamental Freedom, 2001 BYU L. REv. 413, 414 (2001) (stating that legislation which allows constitutional exemptions for religious persons from laws of general applicability which substantially burden religious exercise unless the government can survive the burden of strict scrutiny in justifying the law promotes religious freedom and is consistent with the Founders' belief in a "direct relationship between liberty and religion"). Sen. Hatch is an author and sponsor of both the Religious Freedom Restoration Act and RLUIPA. Id. at 413 n See School Dist. of Abington v. Schempp, 374 U.S. 203, 237 (1963) (Brennan, J., concurring) ("[T]he historical record [of the meaning and original intent of the religion clauses] is at best ambiguous, and statements can readily be found to support either side of the proposition."); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 12.1 (2d ed. 2002) (finding any attempt to determine the intent behind the religion clauses problematic since, in addition to historical ambiguity, the range and degree of religious diversity in the United States would be unimaginable by the Framers at the time of the First

8 304 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 A. The Smith Decision: Upending Free Exercise Rights In the facts leading to the Supreme Court's 1990 decision in Smith, two Native Americans were fired from their jobs as drug counselors after they were discovered to have ingested peyote as part of a religious ritual, conduct which violated a state controlled substances law. 33 Because they were fired for cause, the state of Oregon refused their requests for unemployment benefits as per state law. 3 The controlled substances law and the subsequent denial of benefits were challenged as a restraint on the free exercise of religion. 35 In a 5-4 decision, the Supreme Court rejected the claim that the Constitution required an exemption from a law of general applicability that burdened religious practice, even if that practice was central to the individual's religious belief. 36 Forcing the government to show a compelling interest for an across-the-board prohibition on a particular form of conduct, the Court stated, permits the individual to "become a law unto himself.", 37 Under such a regime, the government would be beholden to the religious objector as to every regulation of conduct it sought to make. 38 Placing the government in such a position would be untenable and contrary to "both constitutional tradition and common sense." 39 In rejecting the use of strict scrutiny for challenges to neutrally applicable laws that substantially burden religious practice, the Smith Court made a clear and unambiguous break from existing free exercise precedent, which treated free exercise of religion as a fundamental right and, like other fundamental rights, subjected any law that burdened it to strict scrutiny. 40 The decision in effect reduced the reach of the Free Exercise Clause from a protection of religious liberty from any governmental action, however Amendment's adoption) U.S. at Id. at Id. at Id. at ("We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."). 37. Id. at 879 (citing Reynolds v. United States, 98 U.S. 145 (1879) (rejecting a free exercise challenge in upholding the conviction of a Mormon for bigamy)). See also JESSE H. CHOPER, SECURING RELIGIoUs LIBERTY (1995) (stating that applying an unqualified heightened scrutiny level to all general regulations that affect religious freedom would make virtually every regulation of conduct open to challenge). 38. Smith, 494 U.S. at Id. at Id. at (O'Connor, J., concurring) (stating that the First Amendment requires the application of strict scrutiny to laws which substantially burden religious exercise) (citations omitted).

9 2005] BELIEF BEHIND BARS overinclusive that formulation may be, to a "prohibition on purposeful governmental discrimination against religion."' Under past free exercise cases, laws of general applicability that had the effect of substantially burdening religious practices, regardless of their intent, were only justified where the state showed a "compelling interest." 42 Those cases stood for the position that if the government could not meet this level of scrutiny, an exemption from the law was constitutionally compelled. 43 Post-Smith, those same laws had only to be reasonably related to a legitimate state interest, so long as they did not target religious practice. The government bore no burden to justify them. B. Congress's Answer: The Religious Freedom Restoration Act Congress wasted little time in responding to Smith. In 1993, it passed the Religious Freedom Restoration Act (RFRA), 44 a direct attempt to restore strict scrutiny as the test for free exercise claims against laws of general applicability. In RFRA, Congress stated not only that the approach offered by the Court in Smith was inadequate, but that the Court's interpretation of the Free Exercise Clause in that case was simply incorrect. 45 Its goals were to undo Smith 's virtual elimination of "the requirement that the government justify burdens on religious exercise imposed by laws neutral towards religion, ' 6 and "restore the compelling interest test.., and guarantee its application in all cases where free exercise of religion [was] substantially burdened."" 7 RFRA articulated a clear test for free exercise challenges. Its key provision stated that the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," except upon a showing that "application of the burden to the person (1) is in furtherance of a compelling governmental 41. Daniel 0. Conkle, Congressional Alternatives in the Wake of City of Boeme v. Flores: The (Limited) Role of Congress in Protecting Religious Freedom From State and Local Infringement, 20 U. ARK. LIT-LE ROCK L. REv. 633, 637 (1998). 42. See Sherbert v. Verner, 374 U.S. 398, (1963) (holding that only a compelling state interest could justify a law which substantially burdens religious practices); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims of free exercise of religion."). 43. See Yoder, 406 U.S. at U.S.C. 2000bb-2000bb-4 (1993). 45. See 42 U.S.C. 2000bb (a). See also FISHER, supra note 8, at (reviewing the political debate surrounding RFRA, including Congressional testimony regarding the restrictions on religious liberty that occurred in the wake of Smith) U.S.C. 2000bb(a)(4) U.S.C. 2000bb(b)(1).

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 48 A wide-reaching statute, applicable to federal, state or local law, or any branch, department, agency or official acting under the color of law, 49 RFRA's scope would eventually be its downfall. C. Boerne: The Court Blasts Congress (and RFRA) In passing RFRA, Congress pointed to its power under Section 5 of the Fourteenth Amendment to address state infringements upon civil rights such as violations of the Free Exercise clause. In the 1997 decision of City of Boerne v. Flores, RFRA was challenged by a local zoning authority who was sued under the statute for denying a church a permit. 5 Congress argued that its power was not limited to remedial legislation, and thus it could enact prophylactic remedies in order to prevent violations of civil liberties from occurring. 52 Its Section 5 power, stated Congress, extended to reach conduct that was not itself unconstitutional in the interest of protecting religious liberty. 53 The Supreme Court rejected this interpretation of Congress's Section 5 power and held RFRA unconstitutional as applied to the states. 54 In enacting RFRA, the Court stated that Congress was exercising "the power to determine what constitutes a constitutional violation"-not enforcing the Fourteenth Amendment, but rather altering its meaning and expanding constitutional rights. 55 Determining the breadth of a constitutional right was not the province of Congress, but a responsibility which belonged exclusively to the Court. 56 As far as the level of scrutiny to be applied to a state law which affected religious exercise, it was the "Court's precedent," including Smith, and "not RFRA, which must control. 57 The Court went on to state that since Congress's Section 5 power was "remedial" in nature, Congress's exercise of enforcement power must bear a "congruence and proportionality" between the injury Congress seeks to U.S.C. 2000bb-l(a)-(b). 49. See 42 U.S.C. 2000bb-2(1), 2000bb-3(a). 50. See U.S. CONST. amend. XIV, 5; 42 U.S.C. 2000bb-2(1); Religious Freedom and Restoration Act, S. REP. No , at (1993); H. R. REP. No , at 9 (1993) U.S. 507, 519 (1997) [hereinafterboerne]. 52. Id. at Id. at Id. at Id. at Id. at Id.

11 20051 BELIEF BEHIND BARS prevent and the remedy it chooses to take. 58 To show congruence and proportionality, Congress must articulate the breadth and scope of the constitutional injury wrought by state and local action, so that the steps taken can be measured "in light of the evil presented., 59 With respect to RFRA, Congress showed no evil. There was no evidence of significant state and local discrimination against religion, nor was there a pattern or practice to validate a massive intrusion on state and local governments, either "in practical terms of imposing a heavy litigation burden on the States [or] in terms of curtailing their traditional general regulatory power." 60 Congress simply failed to show an adequate record of infringement on religious liberties, as the right was defined in Smith, to justify such a wide-reaching law. 61 As a result, RFRA was an impermissible attempt by Congress to expand the free exercise right of religion; in determining the nature and scope of constitutional rights, the Court was supreme. 62 D. RLUIPA: Narrowing the Focus In response to Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act in In doing so, Congress sought to avoid the constitutional problems that doomed RFRA in two ways. First, Congress limited RLUIPA's scope to free exercise violations in two distinct (and unrelated) areas, and developed a record to show proportionality between those violations and the remedial measures taken. Second, Congress invoked authority from enumerated powers other than those granted to it under Section 5. Noting the Boerne Court's concerns regarding proportionality and congruence, RLUIPA sought not to cast a net over any federal, state, or local law which affected free exercise of religion, as RFRA did, but instead focused with precision on two areas where Congress felt it could reduce the burden of generally applicable state and local laws on religious practice: 58. Id. at Id. 60. Id. at id. at 530. See Conkle, supra note 41, at (arguing that Boerne's invalidation of RFRA as outside of the scope of Congress's Section 5 power "can fairly be described as an easy case," and stating that there is "no way" that RFRA's overinclusiveness can be explained or justified "by the magnitude of the constitutional problem being addressed"). Although three Justices dissented in Boerne, none challenged the majority's conceptualization of Congress's Section 5 power; rather, all three called on the Court to take the opportunity presented in Boerne to reconsider the Smith decision. See CHEMERINSKY, supra note 32, at Boerne, 521 U.S. at 536 (citing Marbury v. Madison, 5 U.S. 137 (1803)). 63. See 42 U.S.C. 2000cc-2000cc-5.

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 land use and institutionalized persons. Land use decisions, Congress noted, frequently implicate free exercise rights because the application of zoning law relies on "highly discretionary, individualized decisions" from quasijudicial bodies such as local boards of adjustment and historic preservation commissions. 64 The findings regarding violations of free exercise rights of institutionalized persons stated that without federal legislation, prisoners, detainees and institutionalized mental health patients faced substantial burdens in practicing their religious faiths. 65 Sponsors of the legislation also sought to protect institutionalized persons from "frivolous or arbitrary" rules which burdened their religious liberty. 66 RLUIPA established strict scrutiny as the standard for land use regulations and rules in institutions such as prisons or mental health facilities which substantially burden an individual's religious exercise. 67 In addition to broad bipartisan support in Congress, RLUIPA had significant support from religious and civil rights groups See 106 CONG. REc. S (daily ed. July 27, 2000). See also Kris Banvard, Exercise in Frustration? A New Attempt by Congress to Restore Strict Scrutiny to Governmental Burdens on Religious Practice, 31 CAP. U. L. REv. 279, 302 (2003). Commentators have focused to a much greater degree on the constitutionality of RLUIPA's land use provisions than the institutionalized persons provisions. See, e.g., Lawrence G. Sager, Free Exercise After Smith and Boerne, 57 N.Y.U. ANN. SuRv. AM. L. 9, (2000) (stating that the effect of RLUIPA's land use provision relating to the discretionary judgment of local officials is that at "almost any time a community does not allow the developmental plans of a church, it will face the costly and precarious prospect of defending itself in federal court, where its attempt to apply reasonable land use restrictions will be presumed to be invalid," and such an effect constitutes "a remarkable privileging of the land use interests of churches over all but the most weighty of land use concerns"); Ada-Marie Walsh, Religious Land Use and Institutionalized Persons Act of 2000: Unconstitutional and Unnecessary, 10 WM. & MARY BILL RTS. J. 189, 195 (2001) ("Every local zoning dispute now has the potential to become a federal case under... RLUIPA."). 65. See Religious Liberty Protection Act of 1998: Hearings on HR 4019 Before the Subcommittee on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2nd Sess. (1998) (statement of Marc Stern, Dir., Legal Dept., Am. Jewish Congress) (cataloging infringements of Jewish prisoners' free exercise rights in prison). 66. See 146 CONG. REC. S (daily ed. July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy) ("Far more than any other Americans, persons residing in institutions are subject to the authority of one or a few local officials. Institutional residents' right to practice their faith is at the mercy of those running the institution, and their experience is very mixed... Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways."). See also Banvard, supra note 64, at See 42 U.S.C. 2000cc-l(a). 68. See Walsh, supra note 64, at 195 (noting that more than seventy religious and civil rights groups support RLUIPA, including organizations such as the American Civil Liberties Union, Americans United for Separation of Church and State, Family Research Council, and the National Association for Evangelicals).

13 2005] BELIEF BEHIND BARS In advocating its Constitutional authority to pass RLUIPA, Congress pointed not to its newly circumscribed "remedial" power under Section 5 of the Fourteenth Amendment, but rather to its Spending Clause and Commerce Clause powers. 69 The provisions regarding institutionalized persons, for example, apply whenever the burden on religious freedom at issue "is imposed in a program or activity that receives Federal financial assistance."t7 RLUIPA's raising of the scrutiny level of generally applicable rules that affect prisoners' free exercise rights is a departure not merely from the rule in Smith, which changed the test for free exercise challenges to religionneutral laws more generally, but also from precedent which spoke directly to free exercise challenges brought by prisoners. In Turner v. Safley and 0 'Lone v. Estate of Shabazz, the Court established a reasonableness test for prison regulations that affected religious liberty. 71 As stated in Turner, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 72 By applying strict scrutiny to prison regulations of general applicability that burden religious exercise, RLUIPA arguably protects the religious rights of prisoners to the same degree of those who are not incarcerated See 42 U.S.C. 2000cc(a)(2)(A)-(B) U.S.C. 2000cc-l(b)(1). 71. See 482 U.S. 78, (1987); 482 U.S. 342, 349 (1987) U.S. at 89 (emphasis added). 73. Note that because Congress did not invoke its Section 5 power with respect to RLUIPA, the legislative intrusion on defining constitutional rights and the overinclusivity concerns of Boerne would not necessarily be determinative. The Court has not limited Spending Clause power to "remedial" measures as it has Section 5 power. Rather, the statute must pass the Spending Clause power requirements set forth by the Supreme Court in South Dakota v. Dole: it must give states clear and unambiguous notice of conditions attaching to federal funds, the conditions must be related to the federal interest in particular national projects or programs, and the condition must not amount to federal coercion. 483 U.S. 203, (1987). See Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 IND. L.J. 459, (2003) (arguing that RLUIPA may in fact violate the ambiguity and coercion requirements of Dole). But see Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (finding that RLUIPA is not unconstitutionally coercive under the Spending Clause since recipients of federal funds could simply forego funding rather than comply with the statute). Therefore, Cutter's requirement that the vulnerability of prisoner's free exercise rights be documented to justify the additional protection is misplaced since such a requirement is necessary under an exercise of Section 5 power, but not Commerce Clause power. See infra Part III(A)(1).

14 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 IV. RLUIPA AND THE ESTABLISHMENT CLAUSE: THE CIRCUIT COURT SPLIT A. The Sixth Circuit Cutter and the Virginia District Court Madison Decisions: RLUIPA as Violative of the Establishment Clause 1. The Sixth Circuit Decision: Cutter v. Wilkinson In September 2003, three consolidated cases of Ohio prisoners challenging violations of their First Amendment right to free exercise of religion and of their rights under RLUIPA by Ohio corrections officials came before the Sixth Circuit. In defense of these claims, the Ohio Attorney General filed a motion to dismiss the RLUIPA claim, stating that the section that applied to institutionalized persons, 42 U.S.C. 2000cc-1, improperly advanced religion in violation of the Establishment Clause; the motion was denied by the district court. 74 The Sixth Circuit reversed the district court decision, finding RLUIPA an unconstitutional violation of the Establishment Clause. Particularly, the Sixth Circuit found that the Act violated the second prong of the test articulated by the Supreme Court in Lemon, which finds government action violative of the Establishment Clause if the action has the principal and primary effect of advancing religious belief. 75 RLUIPA, the court stated, "impermissibly advance[es] religion by giving greater protection to religions rights than to other constitutionally protected rights." 76 Under prior cases such as Turner v. Safley and OLone v. Estate of Shabazz, the Supreme Court stated that restrictions imposed on the fundamental rights of prisoners were subject to rational basis review-by subjecting infringements on free exercise to strict scrutiny, RLUIPA had the effect of privileging religious rights over other fundamental rights. Such differential treatment violated the principle of neutrality that the First Amendment requires. 77 The Sixth Circuit searched the legislative history of RLUIPA and found no evidence that the religious freedom of inmates was threatened by prison administrators to a greater degree than those prisoners' other fundamental rights; therefore, increased protection of free exercise was not warranted. Such increased protection not only constituted an 74. See Cutter v. Wilkinson, 349 F.3d 257, (6th Cir. 2003). 75. Under Lemon's three-prong test for whether government action constitutes a violation of religion, the Court must first find that the statute has a secular legislative purpose; second, the statute's principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, (1971). 76. Cutter, 349 F.3d at Id.

15 20051 BELIEF BEHIND BARS unconstitutional endorsement of religion, it also had the effect of encouraging prisoners to become religious in order to enjoy greater rights. Such results would lead "an objective observer viewing RLUIPA's text, legislative history, and effect" to conclude that the Act conveyed a message of religious endorsement The Fourth Circuit District Court Decision: Madison v. Riter The issue of RLUIPA's constitutionality arose in the Fourth Circuit in the Western District of Virginia in January of 2003, ten months before Cutter. 79 The plaintiff, Ira Madison, was an inmate of the Greenville Correctional Center, a facility supervised by the Virginia Department of Corrections. 80 He claimed membership in a particular sect of Hebrew Israel faith called the Church of God and Saints of Christ, based in the Beth El Temple of Suffolk, Virginia. 81 As part of this faith, Madison was required to follow a kosher diet, an option available to prisoners in Madison's facility under the generic name "Common Fare Diet." 82 Madison requested the diet in July While the Greenville facility approved the request, the decision was overturned by Central Classifications Services, the classifications board in the state corrections department in Richmond charged with reviewing such requests, which stated that Madison "could satisfy his dietary needs from the regular food line [as] he had not shown a sincere belief in his religion." 84 Upon transfer to a different facility, Madison again requested the Common Fare Diet, and again his request was granted at the local facility, but denied by the review board. 85 Madison, after exhausting his administrative remedies within the prison system, filed 78. Id. at Madison 1, 240 F. Supp. 2d. 566 (W.D. Va. 2003). In fact, the Cutter court quoted Madison I at length in finding RLUIPA unconstitutional, stating that the opinion was a "remarkably well-worded and persuasive opinion[] that clearly set forth the history of RLUIPA, [and] the analytical basis for concluding that RLUIPA violates the Establishment Clause," and for that reason, the Sixth Circuit's "own analysis can (and will) be considerably streamlined by repeated references to Madison [I]." See Cutter, 349 F.3d at 262. Consequently, this Article's analysis of Madison I is greater in detail than its analysis of Cutter. 80. Madison I, 240 F. Supp. 2d at Madison II, 355 F.3d 310, 313 (4th Cir. 2003). 82. Madison L 240 F. Supp. 2d. at 567. See JAMES A. BECeFORD & SOPHIE GILLAT, RELIGION IN PRISON: EQUAL RIGHTS IN A MULTI-FAITH SOCIETY (1998) (reviewing the history of the development of the Common Fare Diet and its use in American federal prisons, including its administration and applicability to a range of faiths' dietary needs). 83. Madison I, 240 F. Supp. 2d. at Id. 85. Id.

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 his action under Section 3 of RLUIPA in August of 2001, claimin 6 g the denial of his request violated his right to free exercise of religion.' The state of Virginia, in its defense, argued that RLUIPA, among other constitutional flaws related to Congress's acting in excess of its constitutional authority in passing the statute, violated the Establishment Clause. 87 In January of 2003, the District Court for the Western District of Virginia heard Madison's appeal. The court began by stating that while many of Virginia's claims were rejected by the few courts that had reviewed the constitutionality of RLUIPA up to that point, the authority was not unanimous as to whether RLUIPA survived constitutional scrutiny. 88 In following those decisions which found RLUIPA unconstitutional, the district court held that RLUIPA's elevation of the scrutiny level applied to rules of general applicability that substantially burdened the religious rights of inmates constituted an elevation of religious rights over other fundamental rights, and had the primary effect of favoring religion over other rights. 89 Thus, the Court found that the sections of RLUIPA which pertained to institutionalized persons violated the Establishment Clause. 90 The court's decision first turned to precedent regarding decisions made by prison administrators that allegedly burdened a fundamental right of an individual inmate. In Turner, the court stated, the Supreme Court held that any actions taken by an administrator that affected a fundamental right was subject to a "rational-relationship test." 91 This test "represent[ed] a balance between the need to recognize the continuing vitality of the constitutional rights of inmates, and the fact that incarceration necessarily involves a retraction of some rights." 92 However, this was no equal balancing-the administrator's side of the scale was lightened (or to be more accurate, the prisoner's burden was made heavier) by the traditional deference given to 86. Id. 87. Id. at 570. The Defendants also claimed that RLUIPA exceeded Congress's authority under the Spending and Commerce Clauses, and violated the Tenth Amendment and separation of powers principles. See id. 88. Id. (citing In re Young, 141 F.3d 854 (8th Cir. 1998) (Bogue, J., dissenting); U.S. v. Sandia, 6 F. Supp. 2d 1278 (D. N.M. 1997); and Warner v. City of Boca Raton, 64 F. Supp. 2d 1272 (S.D. Fla. 1999)). 89. Id. See Cutter, 349 F.3d at 264 (finding that RLUIPA conveys a message of governmental endorsement of religion and favors religious rights over other nonreligious fundamental rights). 90. Madison 1, 240 F. Supp. 2d. at Id. at Id. at 573 (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)).

17 2005] BELIEF BEHIND BARS the administrator's judgment. 93 In altering this balance in the context of religious rights, the court stated that RLUIPA constituted a singling out of religious rights from other fundamental rights in a way which had the primary effect of advancing religious belief, and therefore violated the second "effects" prong of the Lemon test. 9 4 The court interpreted Lemon and the Establishment Clause to require legislative neutrality toward religion such that religious rights are given the same level of scrutiny that all other fundamental rights, such as freedom of speech and the right to privacy, receive. 95 By singling out religious rights and departing from the standard of review for the fundamental rights of prisoners generally set out in Turner, RLUIPA constituted an increased level of protection for those religious rights, an action which violated principles of legislative neutrality toward religious belief. 96 By shifting the burden of proof from the inmate to the prison administrator, the court found that RLUIPA raised religious rights to a position superior to other fundamental rights held by prisoners. 97 Such a shifting of the burden for alleged violations of a particular fundamental right advanced religion and was therefore unconstitutional. 98 The district court also voiced concerns over the problems associated with differential treatment of prisoners on the basis of religion, in that the resulting elevation of the status of religious inmates in prison society also constituted a violation of the Establishment Clause. 99 The court looked into the future and saw the practical effects of RLUIPA's strict scrutiny standard, a caste system in prisons based on religion where "religious prisoners are allowed to wear religious headgear and religious icons, have ungroomed hair and beards, receive extremist literature from outside the prison, refuse to submit to general medical tests and vaccinations, keep religious objects in their cells, and receive special diets," 100 while nonreligious prisoners would be afforded none of these freedoms. This differential treatment would lead to feelings of jealousy among 93. See supra notes and accompanying text (reviewing the rationales behind this granting of deference, including the limitations of the judiciary in determining the best way to manage and control the prison system). 94. See Madison, 240 F. Supp. 2d. at 572, Id. at See id at Id. at See id. at 577 n.9 ("[W]hen Congress acts to provide religious inmates, and only religious inmates, with a level of constitutional protection that the Supreme Court has deemed unnecessary to protect religious rights, it has gone beyond protecting religion to affirmatively advancing it."). 99. See id. at Id. at

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 nonreligious inmates, and thereby cause a rise in inmates claiming "religious rebirth" in order to cloak themselves "in the protections of RLIUPA" granted to religious inmates. 101 The privileging of religious inmates would thus establish two tiers of inmates-the favored believers and the disfavored non-believers--a result which violates the effects prong of Lemon, and therefore constitutes a violation of the Establishment Clause. 102 B. The Fourth Circuit Decision: Rescuing RLUIPA Since its determination of the constitutionality of RLUIPA involved a controlling question of law, the district court certified the question of RLUIPA's constitutionality for interlocutory appeal, and the Fourth Circuit heard oral arguments on the issue in October of In its de novo review, the circuit court first set out its conceptualization of the neutrality required under Lemon-a substantive definition markedly different from the formal neutrality adhered to by the lower court and the Cutter court, and a distinction which would lead to a different result The neutrality principle, the circuit court stated, does not require that the government be oblivious to the burdens that state action may place on religious exercise. 105 Rather, under the Supreme Court's decision in Corp. of Presiding Bishop v. Amos, alleviation of a governmental burden on religious exercise is a permissible secular purpose that accommodates the free exercise of faith without impermissibly advancing religion in violation of the first prong of Lemon. 106 Like the religious-based exemption from the statutory prohibitions against discrimination granted in Amos, RLUIPA did not advance a religious viewpoint or even favor religion over nonreligion; it simply facilitated inmates' free exercise of religion, and such a legitimate secular goal was consistent with Establishment Clause jurisprudence. 107 In addition to finding that the statute had a valid secular purpose, the court considered whether RLUIPA violated the effects prong of Lemon and found that the statute did not have the impermissible effect of advancing religion Despite the lower court's privileged fundamental rights 101. Id. at Id. at See Madison 1H, 355 F.3d See Shawn P. Bailey, The Establishment Clause and the Religious Land Use and Institutionalized Persons Act of 2000, 16 REGENT U. L. REv. 53, ( ) (discussing the formal neutrality applied by the district court in Madison 1) Madison 11, 355 F.3d at Id. at 317 (citing 483 U.S. 327, 335 (1987)) Id Id. at 318.

19 2005] BELIEF BEHIND BARS analysis, the Fourth Circuit did not find advancement of religion similar to the kind that the Establishment Clause sought to prevent-conduct such as "sponsorship, financial support, and active involvement of the sovereign in religious activity," ' which involves substantive entanglement with religion that goes beyond the mere procedural favoring that offended the district court. No such evidence of advancement of religion was present in RLUIPA, which the court interpreted as a legitimate legislative effort to lift governmental burdens on religious exercise rather than an attempt to "indoctrinate prisoners in [a] particular belief or to advance religion in general in the prisons." 1 10 The Constitution, the court found, simply does not mandate that all fundamental rights be afforded the same level of protection, as both the Madison lower court and the Cutter court had found.' 11 While novel, the proposition that all fundamental rights must be treated equally was not without support, although the authority in accordance with such a view was hardly the rising tide of departure that the Madison district court implied The authority for reading into the Constitution a "symmetry of protection" requirement for all fundamental rights can be traced to Justice Stevens' concurrence in Boerne, in which he stated that RLUIPA's predecessor, RFRA, violated the Establishment Clause by affording religion a preference over nonreligion. 113 Such a view, the circuit court pointed out, had not been adopted by a majority of the Court in Boerne. 114 "[T]he Constitution itself provides religious exercise with special safeguards[, a]nd no provision of the Constitution even suggests that Congress cannot single out [a particular] fundamental right[] for additional protection."' 115 Rounding out its Lemon analysis, the Fourth Circuit found that RLUIPA did "not create excessive governmental entanglement." 11 6 The broad definition of religious exercise used by RLUIPA prevents the government from entering into an invasive and entangling review of what does and does not constitute religious belief By applying such a generalized definition, 109. Id. (citations omitted) Id. Ill. Id See Madison 1, 240 F. Supp. 2d at 570 (stating that the backdrop of authority supporting the constitutionality of RLUIPA is not as unanimous as it might seem) See Boerne, 521 U.S. 507, 537 (1997) (Stevens, J., concurring) Madison 11, 355 F.3d at 319 n.2 (citing Boerne, 521 U.S. at ) Id. at Id. at Id. at 320. RLUIPA's definition of "religious exercise" includes "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Id. (citing 42 U.S.C cc-5(7)(A)). See Bailey, supra note 104, at 81 (arguing that a system which requires administrators to develop some familiarity with and sensitivity towards

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 the court stated, Congress created a built-in check on governmental entanglement by precluding too much administrative review as to what religion was and whether it was sincerely held Based on the standard for entanglement set in past Supreme Court cases, failing the entanglement prong of Lemon requires government conduct akin to "pervasive monitoring" of religious activity; the government's obligations under RLUIPA, the court found, do not rise to that level There were also policy reasons consistent with the Constitution which pointed to a finding that RLUIPA did not violate the Establishment Clause. To hold otherwise, the court stated, would severely limit Congress's ability to develop laws promoting the free exercise of religion in the interest of the First Amendment. 120 Under the district court's rigorous application of the neutrality principle, any law promoting or protecting free exercise would constitute favored treatment of religion at the expense of other fundamental rights, and would therefore be impermissible. 121 Such laws would also threaten a range of religious accommodation laws, from privileging statements made to clergy in the evidentiary context to exemptions from military service for divinity students to tax-exempt status for religious organizations. 122 The deferral to the expertise of prison administrators that past Supreme Court decisions like Turner and O Lone required would still be possible under RLUIPA. 123 A rule of generally applicability that substantially impaired a prisoner's religious exercise would still be upheld, provided the government could show the regulation was in furtherance of a compelling governmental interest and was narrowly tailored to meet that interest. The court found that RLUIPA was consistent with the tradition of accommodating belief and faith within the law. 125 For the moment, strict scrutiny was saved as the standard of review for prisoners' free exercise claims. religious exercise by prisoners does not constitute entanglement, but rather effectuates a more significant separation between church and state) Madison 1, 355 F.3d at 320 ("[T]he statute's broad definition of religious exercise to include any exercise of religion, whether or not compelled by, or central to, a system of religious belief mitigates any dangers that entanglement may result from administrative review of good-faith religious belief.") (internal quotation marks omitted) Id. at (citing Agostini v. Felton, 521 U.S. 203, (1997)) Id. at Id Id See id. at Id. As discussed below, if recent history before the courts is any indication, in reality, this will not be as high a burden for administrators to meet as it may at first seem. See infra Part IV(C) Id. at 321.

21 2005] BELIEF BEHIND BARS V. THE CONSTITUTIONALITY OF RLUIPA If, as Justice Brennan stated in School Dist. of Abington v. Schempp, the historical intent behind the Establishment Clause is at best ambiguous, 126 then what we have left is doctrine and stare decisis. And doctrinally, the Fourth Circuit's determination of RLUIPA's constitutionality is entirely consistent with the Supreme Court's interpretation of the Establishment Clause. A. RLUIPA Is Neutral Toward Religion While other theories such as strict separationism between church and state have guided Establishment Clause jurisprudence in the past, 127 most current decisions have rested on the neutrality approach referred to in all three RLUIPA decisions: the government may not favor one religion over the other, or religion over nonreligion. 128 The main analytical tool used by the Supreme Court in considering neutrality is the nonendorsement principle. Introduced by Justice O'Connor in her concurrence in Lynch v. Donnelly 129 and adopted by the Court in County of Allegheny v. ACLU, 130 the principle is used to determine neutrality toward religion by determining whether "the practice under review in fact conveys a message of endorsement or disapproval."' 131 For the government to violate the Establishment Clause under the neutrality approach means more than just giving religion a small boost, or even governmental receptiveness toward religion. 132 The threshold question for determining Establishment Clause violations under the nonendorsement principle is whether a reasonable person would see the governmental action as favoring or not favoring religion See 374 U.S. 203, 237 (1963) (Brennan, J., concurring). See also CHOPER, supra note 37, at 2-5 (articulating the difficulty of ascertaining the Framers' original intent, or for that matter even determining who the Framers of the Establishment Clause were for purposes of interpreting the religion clauses) See Ira C. Lupu, The Lingering Death of Separationism, 62 GEO. WASH. L. REV. 230, (1993) (showing how the Court's use of strict separation theory has markedly declined since 1980) See, e.g., Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994) (stating that the government must exercise authority in a religiously neutral way); Larson v. Valente, 456 U.S. 228, 246 (1982) (finding that the history of the Establishment Clause clearly indicates that states may not pass laws that prefer one religion over another) U.S. 668 (1984) U.S. 573 (1989) Lynch, 465 U.S. at 690 (O'Connor, J., concurring) See Bailey, supra note 104, at See Lynch, 465 U.S. at 694 (O'Connor, J., concurring); County of Allegheny, 492

22 318 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 The nonendorsement principle is not without problems. For example, whether the hypothetical "reasonable" person is a member of the religious mainstream could affect that person's degree of sensitivity to the impact of state action upon religious minorities. 134 Therefore, those who are most in need of constitutionally compelled free exercise protection can be the most vulnerable. However, RLUIPA is particularly suited to circumvent these concerns; as noted below, in both its formulation and application, RLUIPA seeks first to protect minority religious practices. 135 In prison, it is the minority religion which is most likely to be burdened by the prison administrator, who is likely uninformed as to the tenets, precepts and practices of the minority religion, and/or skeptical as to whether the minority religion is sincerely held by the prisoner. Relieving the burden of generally applicable rules on religious practice is not an endorsement of those particular beliefs, nor does it favor belief since the government is still free to make general rules. Where the government cannot meet its burden, the right to an exemption is granted on an individual, not a group-wide, basis. A loss for the prison administrator under RLUIPA would merely mean an exemption from the general rule. 136 The harm to the government will be the "cost" of an exemption granted to a single prisoner, or at most a small group of prisoners practicing what is likely to be a minority religion, rather than the "cost" of being unable to pursue the compelling interest altogether. The consequences to a state's regulatory interests are minor. The exemption avoids, rather than creates, conflict between religion and the state. 137 Removal of burdens on religious exercise does not rise to the level of U.S. at 641 (Brennan, J., concurring in part and dissenting in part). While the Court has used the reasonable observer principle in analyzing governmental use of public space, commentators have noted its applicability to other contexts, including the governmental granting of a benefit to religious groups or exempting religious groups from a law of general applicability. See CHOPER, supra note 37, at See CHOPER, supra note 37, at See infra note 155 and accompanying text See 42 U.S.C. 2000cc-3(e) ("[A] government may avoid the preemptive force of [RLUIPA] by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.") See Thomas C. Berg, The New Attacks on Religious Freedom Legislation, and Why They Are Wrong, 21 CARDOZO L. REv. 415, (1999) (providing an alternative balancing of prisoners' interests in religious liberty and the state's interest in prison regulation). Also, it should be noted that as more prisoners request exemptions which were previously granted to a prisoner of the same religion, the state's capacity to articulate its interest in prison order and security rises.

23 2005] BELIEF BEHIND BARS governmental indoctrination which the neutrality theory maintains the Establishment Clause guards against. In fact, as discussed below, religious exemptions from laws of general applicability neither encourage nor discourage religion; they merely preserve religious liberty in a neutral manner. B. Historical Religious Exemptions from Laws of General Applicability Are Consistent with the Controlling Interpretations of the Religion Clauses As Professor Thomas Berg has stated, "the state does not establish religion just by refraining from regulating it." 138 The historical exemptions from laws of general applicability that religion has consistently enjoyed undermine the symmetry of the protections expressed in the fundamental rights arguments made by the lower court in Madison and the Sixth Circuit in Cutter. As the Supreme Court stated in Corp. of Presiding Bishop v. Amos, an accommodation of religious practice is not violative of the Establishment Clause. 139 In Amos, a unanimous Court stated that it "has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause." 140 While there is no clear judicial distinction between accommodation, which is not violative of the Establishment Clause under Amos, and advancement, which is violative according to Lemon v. Kurtzman, legislatures have consistently granted exemptions for religious conduct which have been upheld by courts. To take the most obvious example, the Catholic Church is exempt from general laws which forbid giving wine to minors; in that case, as well as other cases, the benefit of freeing the particular religious activity from the burden of generally appropriate law has been found to outweigh the constitutional "harm" of granting individual accommodations. 141 Other statutory exemptions from laws of general applicability, such as state property tax exemptions for land owned by religious organizations and exemptions from humane animal slaughter legislation for kosher slaughtering, have been granted to protect free exercise interests without violating the Establishment Clause. 142 Such 138. Id. at , (finding that under a strict-scrutiny religious liberty statute like RFRA, "the believer can practice her faith, and the government can achieve its goal in the other ninety-nine percent of cases") U.S. 327, 334 (1987) [hereinafter Amos] Id. (citations omitted) See Hatch, supra note 31, at 423; Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 1003 (1990) (finding that in practical terms, even if exemptions "infinitesimally encourage religious activity, withholding religious exemptions severely discourage religious activity") See, e.g., In re Grand Jury Investigation, 918 F.2d 374, (1990) (finding

24 320 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 exemptions balance the regulatory needs of government against constitutional religious rights, and through the political process, allow for accommodations from generally applicable legislation in the interest of protecting religious liberty without constituting governmental endorsement of religion.1 43 The religious exemption doctrine has been attacked by academic commentators as inherently at odds with basic principles of free exercise. 144 Determining whether a right to free exercise lies, these commentators state, requires a threshold finding as to whether the exercise the individual claims is being burdened is in fact religious, and perhaps even more problematic, whether the expressed religious belief is sincerely held. 145 Anti-accommodations commentators also argue that, in practice, religious accommodation is incompatible with religious liberty since the government is more likely to accommodate widely-held and familiar religions, and less likely to accommodate unfamiliar minority religions. 146 Further, an exemption is special treatment, which by definition creates Establishment Clause problems since it constitutes favoring of religion over nonreligion, a state of religious affairs the Supreme Court has spoken out that Rule 501 of the Federal Rules of Evidence grants a clergy-communicant privilege exempting clergy from testifying before a federal grand jury); FISHER, supra note 8, at Whether it is the role of the judiciary or the legislature to grant such exemptions is beyond the scope of this Article. See Smith, 494 U.S. at (stating that those seeking religious exemptions from laws of general applicability should look to the political process and not the courts); Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. PA. L. REv. 555, (1991) (finding that Smith invites legislative bodies to create special benefits for religion and concurrently removes the courts from "the business of protecting religion;" such a shifting presents considerable separation of powers concerns). But see Erwin Chemerinsky, Do State Religious Freedom Restoration Acts Violate the Establishment Clause or Separation of Powers?, 32 U.C. DAVIS L. REV. 645, (1999) (stating that the Constitution's protection of fundamental rights represents the minimum degree of protection afforded to individuals, and the Ninth Amendment supports the view that Congress may provide more rights than the Constitution affords) See FISHER, supra note 8, at See, e.g., Marci A. Hamilton, The Religious Freedom Restoration Act is Unconstitutional, Period, 1 U. PA. J. CONST. L. 1, (1998) (finding that religious freedom legislation which grants exemptions entangles church and state by requiring the government to become a "theological overseer"); William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. CI-n. L. REv. 308, 310 (1991) (stating that the definitional exercises that courts must undergo in determining whether a religious exemption lies raise Establishment Clause issues) Marshall, supra note See Lupu, supra note 142, at 586 (stating that an accommodations regime is far more likely to privilege widely held religions and therefore aggravate conditions of religious inequality).

25 2005] BELIEF BEHIND BARS against. 147 The constitutionality of RLUIPA has also been attacked on these grounds, in that it offers the religious a cause of action which is not available to the secular and therefore impermissibly advances religion However, despite the distinction it makes on the basis of (and some would say in favor of' 4 9 ) religion, both RLUIPA's purpose and effects are secular in nature. The fact that a statute makes distinctions on the basis of religion does not constitute either a religious purpose or effect, under Lemon or any other Establishment Clause test applied by the courts. In coming to this conclusion in Madison II, the Fourth Circuit is consistent with its own precedent as well as that of the Supreme Court. In Ehlers- Renzi v. Connelly Sch. of the Holy Child, the Fourth Circuit held that, as per Amos, a government program or law that aids religion does not on that basis alone violate the Establishment Clause. 15 Pointing to the government's constitutionally acceptable position of "benevolent neutrality" toward religion laid out by the Supreme Court in Walz v. Tax Commission, the court firmly rejected the notion that an accommodation constituted a per se favoring of religion over nonreligion; in fact, without accommodations, the converse state of affairs would be true: without accommodation of religion, the "government would find itself effectively and unconstitutionally promoting the absence of religion over its practice." 151 Such an accommodation of private religious practice is consistent with the Establishment Clause requirements of secular purpose and effect, even if the religious individual or organization receives a benefit from the governmental action that the secular individual or organization does not.152 The anti-accommodation arguments also neglect another much more fundamental aspect: the explicit textual constitutional authority for the 147. See Bd. of Educ. of Kiryas Joel Village Sch. Dist., 512 U.S. at 703 (stating that the guiding principle of the Establishment Clause is that the government should neither favor one religion over the other, nor religion over nonreligion) See Walsh, supra note 64, at (stating that RLUIPA's land use provision violates the Establishment Clause by providing a benefit on an overtly religious basis) Support for this proposition has its basis in Justice Stevens' concurrence in Boerne. See supra note 115 and accompanying text F.3d 283, 287 (4th Cir. 2000) Id. (citing 397 U.S. 664, 669 (1970)) See Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 GEO. MASON L. REv. 929, 998 (2001) (noting that the Supreme Court has found that when the government lifts a regulation that burdens religious exercise, there is no need for the exemption to also include benefits to secular entities) (citing Amos, 483 U.S. at 338). But see Recent Cases, 114 HARv. L. REv. 932, (2001) (finding that the Fourth Circuit's decision in Ehlers-Renzi constituted a direct benefit on the basis of religion and therefore violated the Establishment Clause).

26 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 proposition that religious liberty enjoys favored status over other rights. The very existence of a Free Exercise Clause means that religious practices can be afforded protection from state action at a level which secular practices might not, and that such protection would not be violative of the Establishment Clause. As Professor Chemerinsky points out: If all aspects of freedom of conscience and behavior were protected by the Free Speech Clause of the First Amendment, the Free Exercise Clause would be a meaningless and redundant provision. The enumeration of free exercise as a right must be understood as providing it, in some circumstances, a preferred status. 153 While the position that religious liberty legislation may suffer from an inherent bias in favor of accommodating majority religions at the expense of minority ones may have some value in a broad doctrinal sense, religious liberty legislation as specifically applied to the prison context has the very goal in mind of protecting minority religious rights. It is hardly a coincidence that most claims brought by prisoners, first under RFRA and then under RLUIPA, have involved prisoners practicing minority religions.1 54 Such a history strongly implies that RLUIPA works to protect the religious liberty of those individuals practicing minority religions, which under any inte retation is one of the major premises of the Establishment Clause.155 For RLUIPA to be violative of the Establishment Clause, a heightened scrutiny level applied to generally applicable laws which burden religion must constitute an impermissible advancing of religion, an assumption that the case law prior to Smith does not support. Strict scrutiny has been the 153. See Chemerinsky, supra note 142, at However, this argument may be subject to critique by analogy to Press Clause jurisprudence, particularly with respect to the fact that the Court has consistently found that despite the existence of an independent Press Clause, the institutional press enjoys no special rights or protections under the First Amendment. See Branzburg v. Hayes, 408 U.S. 665, (1972) (holding that the Press Clause did not grant the press an exemption from rules of general applicability that apply to all individuals) The Becket Fund for Religious Liberty established a website which is dedicated to RLUIPA at The site tracks cases filed, pending and decided under the statute. The site finds that of the seven cases decided under the institutionalized prisoners provision of the statute, all involved prisoners practicing minority religions such as Buddhism, Rastafarianism, Judaism and Islam. Of the twenty-one cases the website lists as pending, all involved minority religions as well. See RLUIPA Court Cases, available at cases.html (last visited Apr. 23, 2005) See Larson, 456 U.S. at 255 (finding that a state law that preferred religions which received fifty percent of their revenue from member donations set up "precisely the sort of official denominational preference that the Framers of the First Amendment forbade" in passing the Establishment Clause); CHOPER, supra note 37, at 9,

27 20051 BELIEF BEHIND BARS traditional level of analysis for free exercise claims, and in no case would application of a higher standard to state action that incidentally affects religious liberty constitute a violation of the Establishment Clause. 156 RLUIPA does not favor the religious over the nonreligious, or one particular religion in any meaningful way; it merely protects a constitutional right that is particularly vulnerable in a particular context. As stated earlier, the prisoner's religious exercise is completely at the discretion of the administrator. Religious liberty legislation simply seeks to correct this imbalance, and in the process, protects the free exercise rights of the prisoner. With the passage of RFRA, for example, many state prison systems which were originally hesitant to hire prison chaplains with state funds due to constitutional concerns expanded their chaplainry programs to prevent prisoner claims under the new legislation, 157 or instituted formal procedures to provide diet alternatives for religious prisoners. 158 In prison, by giving attention to faith differences among prisoners, serving as an intermediary between these prisoners and prison administrators, and ensuring allocations of special diets and facilitating worship and education programs, the chaplain serves as both a manager of religious diversity and an advocate. 159 RLUIPA affords protection and allows this kind of freeexercise activity to continue. C. RLUIPA's Strict Scrutiny is Hardly "Fatal in Fact," Since the Government Can Still, and in Most Cases Will, Meet Its Burden Under RLUIPA While strict scrutiny has been "fatal in fact" in other constitutional contexts as some commentators have implied, 160 this is not so in the prison context. In responding to a RLUIPA charge, the government, as in any other case in which its action is subject to strict scrutiny, can defend a prison rule by showing that the rule is the least restrictive means to meet a compelling governmental interest Given the deference that prison administrators would still be afforded under RLUIPA, it is almost a complete misnomer to call the government's burden "strict scrutiny" in a RLUIPA case involving an institutionalized plaintiff See Sherbert v. Verner, 374 U.S. 398, 403 (1963) See BECKFORD & GILLIAT, supra note 82, at Berg, supra note 137, at 421 (noting that the Illinois prison system enacted rules for providing compliant diets for Jewish, Muslim, and other prisoners after the passage of RFRA) See BECKFORD & GILLIAT, supra note 82, at See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARv. L. REV. 1, 8 (1972) U.S.C. 2000cc(a).

28 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 In comparing strict scrutiny in the religious exemption context to the test as applied in other constitutional challenges, Professors Christopher Eisgruber and Lawrence Sager have noted both the degree to which the compelling state interest test loses much of its bite, and the ease with which the state consistently meets this part of its burden. 162 Under RFRA, for example, preserving security and order in the prison environment was consistently found to be a compelling governmental interest. 163 Restrictions on the daggers that Shiks wear around their necks in the interest of prison safety have obviously be found to be compelling, 164 and regulations regarding grooming have been upheld because of the compelling interest in preventing appearance changes of prisoners and excluding contraband that could possibly be hidden in long hair. 165 Therefore, provided they assert security concerns as the applicable compelling interest, prison administrators defending against RLUIPA challenges will only have to satisfy the second prong of the test: that the regulation is tailored so as not to infringe on religious liberty. A statute that encourages such mindfulness on the part of administrators is consistent with the religion clauses. It asks that prison administrators consider the effects of their rules on the religious rights of prisoners where they would have no reason or incentive to do so otherwise. VI. LOOKING CLOSER: CONSTITUTIONAL PROBLEMS WITH RLUIPA THAT THE FOURTH CIRCUIT DID NOT REACH A. RLUIPA as RFRA Redux: An Overbroad Solution to an Undocumented Problem? The constitutional weaknesses of RLUIPA are not as to whether the statute violates the Establishment Clause, but exist in other areas. To analyze them further, this Article focuses on RFRA and two other pre- RLUIPA statutes, the Religious Liberty Protection Acts of 1998 and Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, (1994) (noting that pre- Smith accommodation claims consistently lost in the Supreme Court even under strict scrutiny analysis; in those cases the Court found conventional interests such as collecting generally applicable taxes and supporting the military as compelling; and "Smith announced the death of the compelling state interest test in accommodation cases, but, outside of Sherbert and Yoder, it had never really lived") See Heather Davis, Inmates' Religious Rights: Deference to Religious Leaders and Accommodation of Individualized Religious Beliefs, 64 ALB. L. REv. 773, 798 (2000); see also Berg, supra note 137, at 422 (noting that less than ten percent of RFRA claims brought by prisoners succeeded) See Religious Practice in Prison, supra note 18, at See Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 1997).

29 20051 BELIEF BEHIND BARS As stated, of RFRA's many problems, one of its most salient was the deficient record of constitutional violations on which it was supposedly justified. This was the proportionality problem that the Supreme Court referred to in Boerne; 16 the reach of the Act extended to every federal, state and local law, but rested on a record "containing a handful of anecdotes" of instances where religious organizations were unable to receive an exemption from laws of general applicability Commentators have suggested that Congress's decision in enacting RFRA was more about its judgment regarding the Court's decision in Smith than in protecting particular believers from burdens on their religious exercise. 168 In response to Boerne, Congress introduced the Religious Liberty Protection Acts (the RLPAs) in 1998 and These proposed statutes attempted to reenact the strict scrutiny standard of RFRA and were similarly broad in scope, but Congress attempted to buttress its religious protections from the proportionality challenge by invoking Article I powers such as the Commerce and Spending Clauses. 170 However, concerns lingered regarding RLPA's ability to pass through Congress because of its RFRA-like intrusion into state action and its lack of a limiting principle on those actions. 171 Advocates working for land use privileges and greater authority to protect prisoners' religious liberties from decisions made by prison administrators pushed for their areas of interest, and RLUIPA's particularized areas of concern were what survived in the final version of the legislation.1 72 The path from a broad RFRA to a narrow RLUIPA can be justified as a legislative reaction to Boerne: If RFRA was too broad and Congress can show that there was a history of discrimination against religious exercise in the particular areas covered under RFRA, RLUIPA is a proportional measure to remedy that discrimination. The problem with this conclusion is 166. Boeme, supra notes and accompanying text Hamilton, supra note 21, at Eisgruber & Sager, supra note 162, at 456 (stating that RFRA was too broad and vague to meet the standard applied by the Supreme Court in Texas Monthly v. Bullock to determine whether a religious accommodation should be granted: "a demonstrated and possibly grave imposition on religious activity") (quoting Texas Monthly v. Bullock, 489 U.S. 1, 18 (1989)) H.R. 4019, 105th Cong. (1998); H.R. 1691, 106th Cong. (1999) H.R. 4019, 105th Cong. (1995) ("[A] government shall not substantially burden a person's religious exercise... by a program that receives federal assistance.") Hamilton, supra note 21, at 334, (stating that "the same problem-scope of application-that was endemic to [RFRA] infected deliberations over the never-enacted [RLPA]"; like the overbroad RFRA, the proposed law attempted to institute strict scrutiny over every state, local or federal law in the United States) Id. at 334.

30 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 that the record does not offer much support to the institutionalized persons' side of the Act. While no hearings were held in consideration of RLUIPA per se, the RLPA hearings established a record of discrimination against religious organizations in land use decisions, including anecdotal and statistical evidence of discrimination in zoning decisions Little discussion took place during the post-boerne hearings regarding prisoners,1 74 however, and none took place regarding other institutionalized persons such as individuals in mental institutions. ' 75 In an area such as criminal punishment where state sovereignty is given significant deference, 176 even with an invocation of other articulated powers, possible federalism challenges loom over the institutionalized persons provision of RLUIPA. An underdeveloped record for an intrusion into a traditional state activity could raise constitutional concerns. 177 However, the commentary focusing on the (lack of) sufficiency of the record supporting RLUIPA may be misplaced. While specific evidence of infringements on the rights of prisoners may have been slight, the hearings surrounding the two RLPAs made specific connections between prisoners' religious exercise and interstate commerce. 178 Such findings, which the 173. See Protecting Religious Freedom After Boeme v. Flores: Hearing before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. (1998) (statement of Steven T. McFarland, Director, Center for Law and Religious Freedom of the Christian Legal Society); see also Caroline R. Adams, The Constitutional Validity of the Religious Land Use and Institutionalized Persons Act: Will RLUIPA's Strict Scrutiny Survive the Supreme Court's Strict Scrutiny?, 70 FORDHAM L. REv. 2361, 2400 (2002) Some post-boerne hearings did consider prisoners' free exercise rights. See The Need for Federal Protection of Religious Freedom After Boerne v. Flores: Hearing Before the Subcomm. On the Constitution of the House Comm. on the Judiciary, 105th Cong. (1998) (statement of Isaac M. Jaroslawicz, Dir. Of Legal Affairs, the Aleph Institute) (stating that in the name of administrative convenience, state prison administrators have returned to a pre-rfra level of infringing on prisoners' religious rights, especially those prisoners exercising minority religions) Hamilton, supra note 21, at See Procunier v. Martinez, 416 U.S. 396, 405 (1974) ("[W]here state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.") Indeed, commentators have argued that RLUIPA, despite its basis in powers other than Section 5 of the Fourteenth Amendment, is unconstitutional exactly on this basis. See Gregory S. Walston, Federalism and Federal Spending: Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional, 23 U. HAW. L. REv. 479, 492 (2001) (arguing that RLUIPA intrudes on matters that have traditionally been the prerogative of the states and violates the Tenth Amendment under United States v. Lopez) See Heather Guidry, If At First You Don't Succeed... : Can the Commerce and Spending Clauses Support Congress's Latest Attempt At Religious Freedom Legislation?, 32 CUMB. L. REv. 419, ( ) (citing testimony by Marc Stem, Director of the Legal Department of the American Jewish Congress, which points to the interstate

31 2005] BELIEF BEHIND BARS Court in U.S. v. Lopez stated were important for Congress's invocations of Commerce Clause power in areas not readily and apparently affected by interstate commerce, 179 are supportive of Congress's efforts here. 180 A kosher piece of meat is often delivered through interstate channels, and the decision to prevent a religious prisoner from eating a religiously compliant diet could have an effect on interstate commerce. 181 Analysis of RLUIPA's record should be in light of the legislation's connection to the Commerce and Spending Clauses, not the measure of documented harm to free exercise rights, which would have been the analysis had RLUIPA been passed, like RFRA, under Congress's Section 5 power. B. Other Measures for Protecting the Religious Liberty of Prisoners If RLUIPA is found by the Supreme Court to be an unconstitutional establishment of religion, challenges to generally applicable laws that substantially burden prisoners' religious liberty will have to look to other authority to elevate the scrutiny level from where it was left by Smith. One strategy that could prove effective is found in Smith itself. While Smith pulled back the scrutiny level for free exercise challenges to laws of general applicability, it did recognize a situation in which general laws that affect religious conduct should receive greater scrutiny: those in which state action burdens a "hybrid right," where a constitutional interest additional to free exercise is implicated. 182 Such claims involve not only the Free Exercise Clause, but other fundamental rights, such as freedom of speech and freedom of the press. 183 Given the hybrid right doctrine set forth in Smith, should RLUIPA be found unconstitutional, a free exercise challenge by a prisoner against a general prison rule that is combined with another fundamental right would receive strict scrutiny. In the prison environment, freedom of association is the First Amendment right that would be most compatible with free exercise rights. 184 commerce movement of religious articles such as literature and kosher foods) U.S. 549, 562 (1995). However, the Court's holding in U.S. v. Morrison negates any conclusion that findings alone can save a statute invoked under Commerce Clause power. The statute invalidated in that case contained a lengthy legislative history regarding the cumulative effect of assaults on women on interstate commerce, yet the Court found that the area sought to be regulated was within the traditional domain of the states. See 529 U.S. 598, 614 (2000) See Guidry, supra note 178, at Id. at See Smith, 494 U.S. 872, (1990) Id Since the exercise of religious liberty in most cases entails the freedom to meet with like-minded believers to share in the rituals and practices that constitute the expression of religious faith on the communal level, the Free Exercise Clause lends itself to the

32 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 Common sense would lead one to conclude that the right to association is the First Amendment right most circumscribed in the prison context since incarceration is by definition a restriction on one's right to associate with society. Precedent would confirm this conclusion. As Justice Rehnquist stated in Jones v. North Carolina Prisoners' Labor Union, Inc., incarceration necessarily entails a restriction not only on a prisoner's right to associate with the outside world, but in many instances, on his ability to associate with fellow prisoners as well. 185 Despite this inevitability, prisoners' association rights are subject to at least some scrutiny depending on the nature of both the restriction and the association. In Justice Rehnquist's analysis of prisoners' rights to associate in prison, the blanket rule infringing on the prisoners' right to associate was deemed valid because of the nature of the association itself, more so than the fact that the association right was per se incompatible with prison In Jones, the prisoners sought to form a union; such a dynamic, administrators argued, could create a power imbalance in the prison, for instance, by empowering union leaders to organize inmates to take action adverse to the administrators' interests in keeping prison order and security or creating friction between inmates and officers, as well as union and non-union inmates. 187 The Union's own stated goals were to "work toward the alteration or elimination of practices and policies of the Department of Correction which it did not approve of" 188 and to eliminate general rules of applicability that RLUIPA's statutory scheme of individual exemptions seeks to preserve. Given their constitutional protections, religious associations would be much less likely to be treated by the Court as actively encouraging adversarial relations with prison administrators, or as inherently incompatible with the prison environment, than unions. 189 Far-reaching general prison rules that are not narrowly tailored could implicate both free exercise and association rights. A prison rule that instituted a "total ban on meetings," for example, would implicate a religious prisoner's right to free exercise as well as his right to associate development of a doctrine of freedom of religious association. See Frederick Mark Gedicks, Towards a Defensible Free Exercise Doctrine, 68 GEO. WASH. L. REv. 925, 941 (2000) (stating that freedom of association could directly protect group religious exercise) U.S. 119, (1977) Id. at 132 (stating that prisoners' association rights can be curtailed when administrators reasonably conclude that such associations "possess the likelihood of disruption to prison order or stability") Id. at 127. See also Calhoun, supra note 24, at (stating that Jones can be read as an analytical framework for judging the associational rights of prisoners that treats association as a fundamental right) Jones, 433 U.S. at See id. at 133.

33 2005] BELIEF BEHIND BARS with prisoners who share his faith. Claims previously brought under RFRA regarding the right to pastoral visitation would also lend themselves to a hybrid right analysis, where both a prisoner's right to free exercise and right to associate are implicated by prison rules A rule which implicates both of these rights should be subject to strict scrutiny, thus affording religious liberty greater protection than a rational basis review under Smith. Under the strict scrutiny standard, the prison administrator would have to justify the rule, not in its general application, but by showing that there is a compelling government reason, advanced in the least restrictive means, which applies the prison regulation to that individual claimant. 191 If such a justification cannot be made, an accommodation must be made for that individual prisoner. It is tempting to conclude that Smith is proof of the Court's decision that free exercise is not a fundamental right. 192 However, Justice Scalia's consideration of past free exercise cases in Smith shows that the Court has granted special protections to religious association rights of free exercise, even under the hybrid rights analysis. Cases in which the Court found hybrid rights include rights of religious association, the right to raise a child religiously, 193 and the right to favor hiring religious employees. 194 As Justice Scalia stated, "it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns." 195 Exemptions granted to laws of general applicability in cases like Amos and Yoder are evidence of increased constitutional protection for religious, as opposed to nonreligious, associations since such challenges inherently implicate two fundamental rights. These cases, even after the free exercise revisionism of Smith, are still good law and provide precedent for increased constitutional protection for the right to religious association, both within and outside the prison bars For example, in Kikumura v. Hurley, a prisoner brought RFRA and First Amendment claims against a prison rule which only allowed pastoral visits between prisoners and visiting clergy of the same faith. The plaintiff, a Buddhist prisoner, was denied an opportunity under the rule to meet with a Methodist clergyman who had done missionary work in the plaintiff's native Japan. 242 F.3d 950, (10th Cir. 2001) U.S.C. 2000cc-l(a) (stating that the government's burden is to show that the burden as to that particular prisoner is the least restrictive means of furthering a compelling prison interest) See Gedicks, supra note 184, at See Wisconsin v. Yoder, 406 U.S. 205 (1972) Amos, 483 U.S Smith, 494 U.S. at

34 CRIMINAL AND CIVIL CONFINEMENT [Vol. 31:297 VII. CONCLUSION For most of us, prisoners are not seen or heard. Our criminal justice system enacts the penalty of disappearance that is modem incarceration. It is rare that we get the chance to understand what is going on inside these institutions-places we pay for, send fellow members of our society to, and often fear. Occasionally there are glimpses as to what goes on behind the walls-light coming through the bars. Such glimpses are most often provided through those who step behind the walls and come back out, bringing with them the testimonials of those inside. One such testimonial is that of an unidentified prisoner in a North Carolina prison, who speaks of an environment that drilled into him his crime and culpability. Through a relationship with the Yokefellow Prison Ministry, an ecumenical group of ministers and volunteers which has been going inside the walls to minister to and befriend prisoners for over thirty years, the unidentified prisoner began to take steps toward understanding the act he had committed.' 96 His right to meet with that minister and his ability to better understand his crime and himself can all be taken away by the broad sweep of an administrative regulation. Even the strictest of separationists would likely agree that the state has become derelict in its responsibility to rehabilitate prisoners. If the state has decided to abdicate much of this responsibility, then it cannot infringe on the capacity of those actors to which it has delegated the task. The government should take a pragmatic approach to the religious freedom of prisoners. Allowing the prisoner to exercise religious liberty is in the interest of the state, as it fosters the state's rehabilitative efforts. RLUIPA is constitutional congressional lawmaking, not favoring of religion. Its protection of the prisoner's right to religious liberty-which in some cases is the only liberty the prisoner has left-works to preserve guarantees of the First Amendment and the Free Exercise Clause. Such benefits arguably outweigh any abstract constitutional concern we on the outside may have regarding the Establishment Clause. The choice to grant an exemption to an individual prisoner on the basis of his religious rights implicates that prisoner's life, far more than it does ours. It is, after all, not the state which coerces the prisoner toward religion, but the prisoner himself who decides to believe and to act in accordance with that belief. The Fourth Circuit's Establishment Clause analysis of RLUIPA preserves his right to make that choice See supra note I and accompanying text.