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Topside RLUIPA Briefs in Cutter v.
Wilkinson |
In No. 03-9877, Cutter v.
Wilkinson (to be argued during the last two weeks in March), the
Court will consider the constitutionality of section 3 of the Religious
Land Use and Institutionalized Persons Act of 2000, which requires some
accommodations for the religious exercise of persons in state-run
institutions, including prisons. The U.S. Court of Appeals for the Sixth Circuit held
that section 3 violates the Establishment Clause because RLUIPA grants
accommodations only for the exercise of religion, and not for the exercise
of other constitutional rights, and because it prefers religious to
nonreligious prisoners. The Question Presented is limited to the
Establishment Clause question. In its brief at the cert. stage, however,
Ohio told the Court that it intends to urge at least two other,
alternative grounds for affirmance: (i) that the Establishment Clause, in
addition to imposing certain limits on all governments, also
uniquely disables the federal government from dictating how the states
should accommodate religion; and (ii) that Congress lacked the affirmative
authority under the Spending and Commerce Clauses to enact
RLUIPA.
Topside briefs were filed yesterday by:
Petitioners (persons incarcerated in the Ohio
prison system);
The United States;
Senators Hatch and Kennedy (devoted to the
questions of congressional authority) (Disclosure: I am counsel on the
brief);
The States of New York and Washington;
The Coalition for the Free Exercise of Religion
(a coalition of more than 50 religious, civil rights, and civil liberties
groups);
The American Correctional Chaplains Association, former
state corrections officials, state prisoners, and
others;
Americans United for the Separation of Church and State and
the ACLU;
The Public Affairs of the Union of Orthodox
Jewish Congregations of America (a brief authored by Prof. Doug Laycock
devoted to the alternative "federalism Establishment Clause" argument)
[link not yet available]; and
The Rutherford Institute.
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