Well, Ellis was arguing that “the issue” was whether “RFRA and
RLUIPA ... are secular in purpose and effect.” I read Cutter as concluding
that they are, though indeed particular accommodations implemented out of a
desire to avoid RLUIPA litigation might not be.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, April 16, 2012 1:33 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against Establishment Clause
challenge
Cutter only addressed the facial Establishment Clause attack on the prison
provisions of RLUIPA. It did not protect any particular program or exemption
from attack
Marci
On Apr 12, 2012, at 7:19 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Maybe it would and maybe it wouldn’t, but I don’t think that
makes the purpose religious, or makes the effect primarily the advancement of
religion (whatever “primary effect” might mean); it just suggests that the
policy might prove counterproductive relative to the secular government purpose.
As to RLUIPA being “secular in purpose and effect,” the Supreme
Court unanimously said in Cutter that RLUIPA is constitutional. Maybe one can
imagine contrary arguments, but they didn’t impress any of the Justices, even
Stevens.
But even if RLUIPA didn’t exist, the no-pork policy would be
permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet
policy would also be constitutionally permissible.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Thursday, April 12, 2012 2:39 PM
To: Law & Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against Establishment Clause
challenge
I should have added to the post below that the policy might create as much
conflict as it eliminates, just as would a vegetarian diet.
Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu<mailto:ew...@richmond.edu>
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Thursday, April 12, 2012 5:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against Establishment Clause
challenge
Sure avoiding litigation is a secular purpose, but only if one assumes that
RFRA and RLUIPA, the basis of the litigation, are secular in purpose and
effect, but that is precisely the issue. Suppose these two laws did not exist.
Then would the prison policy in question be secular in nature? The avoidance
of conflict might also be a secular purpose, but it would justify all kinds of
exemptions, not just religion-based exemptions, because persons object to all
kinds of laws for all kinds of reasons. For example, as Prof Levinson
suggested in an earlier post, it would justify a uniform vegetarian diet for
all prisoners.
Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu<mailto:ew...@richmond.edu>
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]>
On Behalf Of Ira Lupu
Sent: Thursday, April 12, 2012 4:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against Establishment Clause
challenge
Avoiding litigation (and there are many, many RLUIPA and free exercise cases
about prison diets) and other forms of conflict, and having the efficiencies of
a uniform diet for all prisoners, sound like secular purposes to me.
On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis
<ew...@richmond.edu<mailto:ew...@richmond.edu>> wrote:
Although the District Court may be correct in saying that the primary purpose
of the policy is not “to establish the religion of Islam” or to “promote the
practice of Islam,” it does concede that the policy “makes accommodating a
multitude of religious practices and beliefs easier and more economical.”
Would someone explain to me how that purpose and/or effect is “secular” in
nature? Even though Prof. Lupu may be correct in saying that this particular
policy is good way of accommodating religious beliefs/practices, his comment
simply assumes that a policy of accommodating religious beliefs/practices is
secular in nature. How so?
Ellis M. West
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