The
district court's reasoning, which Virginia wisely disavowed, would preclude a
lot more than dietary allowances in state institutions. As noted in
the appellant's briefs in Madison, and as Judge Wilkinson
observed, "It would throw into question a wide variety
of religious accommodation laws. It could upset exemptions from compulsory
military service for ordained ministers and divinity students under federal law,
since these exemptions are not paired with parallel secular allowances or
provisions to protect other fundamental rights threatened by compulsory military
service. See 50 U.S.C.App. § 456(g)
(2000). It would similarly
imperil Virginia's and other states' recognition of a 'clergy-penitent
privilege,' which exempts from discovery an individual's statements to clergy
when 'seeking spiritual counsel and advice.' See, e.g., Va.Code Ann. § § 8.01-400, 19.2-271.3 (2000). Other specific religious accommodation statutes,
ranging from tax exemptions to exemptions from compulsory public school
attendance, see, e.g., Va.Code Ann. § 22.1- 254(B) (2000), would also be threatened." 355 F.3d at
320. Nevertheless, this is the only theory on which federal courts (two
district courts plus Cutter) have the statute to violate the
Establishment Clause.
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?
----- Original Message -----
Sent: Thursday, April 08, 2004 12:10
PM
Subject: Cert. Petition in RLUIPA
Case
Does anyone have the cert. petition? If
so, please post it (or a link).
Presumably the petition is predicated on the
circuit split caused by Cutter v. Wilkinson (CTA6). Does
anyone know the status of the en banc proceedings in
Cutter?
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