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The Court did not rule on the petition in
Bass. Presumably this means the Court wishes to consider that
petition in conjunction with the plaintiffs' petition in Cutter;
responsive briefs in Cutter are due in three weeks. The
Court will consider both petitions at its first conference next Term. This
appears to mean that for at least the remainder of this year, section 3 of
RLUIPA will, in effect, be inoperative in prisons in Michigan, Ohio, Kentucky
and Tennessee.
----- Original Message -----
Sent: Friday, May 28, 2004 5:55 PM
Subject: Cert. Petitions in RLUIPA Prison
Cases
The SG today filed a Brief for the United States -- a Respondent that
intervened to defend the constitutionality of RLUIPA -- in No. 03-1404,
Bass v. Madison. (See discussion below.) The SG, like the
plaintiff, argues that the Court should grant cert. to decide whether section
3 of RLUIPA violates the Establishment Clause, but that the Court should deny
cert. on the remaining constitutional challenges to the statute. As for the
Sixth Circuit case in which another peititon is pending, No. 03-9877,
Cutter v. Wilkinson, the SG writes: "The later petition filed in the
Sixth Circuit case, Cutter, et al. v. Wilkinson, et al., No. 03-9877,
provides a less optimal vehicle for this Court's review, due to the
multiplicity of parties and factual claims presented in the three combined
cases, and the complications in the alignment of all the different parties as
petitioners and respondents that would arise were the Court to consolidate
consideration of that case with the present petition. In addition, were the
Court to grant that petition, in which RLUIPA was held to violate the
Establishment Clause, the respondent state officials would be free to raise a
host of distinct constitutional challenges as alternative grounds for
affirmance. As explained in point 2, infra, such a development could require
this Court to address a number of difficult, sensitive, and vitally important
constitutional issues without the benefit of their consideration by the court
of appeals in the instant case, in the Cutter case, or by many other
courts of appeals. Accordingly, if this Court grants the instant petition, the
United States will suggest that the Cutter case be held pending the
Court's ruling in the case at hand."
----- Original Message -----
Sent: Friday, April 23, 2004 4:25
PM
Subject: Re: Cert. Petition in RLUIPA
Case
The plaintiffs in Sixth Circuit case,
Cutter v. Wilkinson, have filed a petition for cert. The Case
No. is 03-9877. See http://www.supremecourtus.gov/docket/03-9877.htm.
If anyone has an electronic copy, please post it. The Court will
not rule on the petition in Cutter or in Bass v. Madison
until the SG files briefs for the Respondent United States. If such
briefs are filed by May 28th, then the Court will act on the petition(s)
this Term (i.e., on or before June 28th).
----- Original Message -----
----- Original Message -----
Sent: Saturday, April 17, 2004 7:32
AM
Subject: Re: Cert. Petition in RLUIPA
Case
Also, there's an article by Richard Schragger
(U. Va.) in the latest Harvard Law Review, The Role of the Local in
the Doctrine and Discourse of Religious Liberty, 117 Harv. L.
Rev. 1810 (2004), that apparently (I haven't yet read it) argues that
national religious-accommodation law, such as RLUIPA, is
problematic from a Religion Clause perspective in ways that analogous
state and local religious accommodations would not be -- which also
happens to be the principal theme of the State of Virginia's petition
in Bass.
----- Original Message -----
Sent: Thursday, April 08, 2004 5:36
PM
Subject: Re: Cert. Petition in
RLUIPA Case
Well, the circuit split issue isn't quite
as clear as I had suggested. In its petition, Virginia expressly
rejects the EC theory on which it had won in the district
court, and that the Sixth Circuit invoked in Cutter (namely,
that a government can accommodate religious exercise only if it provides
comparable accommodations for the exercise of other constitutional
rights). And there's good reason that Virginia rejects that
theory -- namely, that it wishes to preserve its own
ability to grant religious accommodations, including accommdations
of the very sort involved in this case. It so happens that
Virginia does provide kosher meals to some prisoners for
religious reasons. It denied Madison such an accommodation,
however, because (i) it determined that he "had adequate alternatives"
from other menus (e.g., the "no pork" and vegetarian menus; (ii) it
doubted the sincerity of his religious beliefs; and (iii) "it
considered Madison's history of disciplinary problems." (Just
as an aside: The first of the prison's reasons is troubling under
the Religion Clauses themselves (wholly apart from RLUIPA), because it
suggests that the prison thinks it knows better than Madison himself
what his religion ("Hebrew Israelites") requires, and that it requires
less accommodation than, e.g., Judaism. The second rationale (lack
of sincerity) would, if demonstrated, mean that Virginia would
prevail under RLUIPA. Likewise, the third justification
(in essence, "we deny religious accommodations to those prisoners who
have had disciplinary problems") is probably a ground on which
Virginia should prevail under RLUIPA itself, assuming the Religion
Clauses permit the state to impose a "good behavior" condition on the
exercise of a religious accommodation.)
Virginia does not wish to limit its own
ability to provide kosher meals to prisoners of its choosing.
Accordingly, Virginia relies on two alternative EC theories: (i)
that the EC -- in addition to imposing substantive constraints on both
federal and state governments -- prevents Congress from
interfering with a state's choices about how to accommoodate
religion; and (ii) that, per Thornton, a government cannot act
to alleviate a burden on religious exercise not of its own
making (except, as under title VII, when the required accommodation
is minimally intrusive on the entity that imposed the religious
burden). These are both intriguing theories, but they have not
been passed upon by any court (have they?), and more importantly, as
Virginia concedes, they are not the subject of a circuit split.
Virginia argues, however, that if the Court grants cert., the Court
itself can consider the EC theory on which there is a circuit
split -- even though all the parties to the case (Madison, Virginia and
the United States) presumably will argue against it.
----- Original Message -----
Sent: Thursday, April 08, 2004
1:57 PM
Subject: Re: Cert. Petition in
RLUIPA Case
The petition surprisingly focuses as much
or more on Commerce and Spending as it does on the Establishment
Clause. I think it's highly unlikely that the Court
would grant cert. on any question other than (possibly) whether
section 3 of RLUIPA violates the EC.
Also, the Sixth Circuit on March 3d
denied rehearing and rehearing en banc in Cutter v.
Wilkinson, so it does appear that there is a circuit split.
Does anyone know whether the plaintiffs in Cutter plan to
seek cert., and/or whether the plaintiffs in Bass will oppose
cert. on the first question
presented?
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