The funny thing about
"compelling interest with deference" is that it has been present since at
least Korematsu.
Bobby
In a message dated 5/31/2005 11:21:55 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
One might also note we now have
another area of law (in addition to affirmative action) where compelling
interest seems no longer shorthand for the individual rights claim (almost)
always wins.
MAG
>>> [EMAIL PROTECTED] 05/31/05 11:16AM
>>>
What a fascinating opinion. J. Ginsburg upholds strict scrutiny
with respect to prison regulations, but at the same time demands deference to
prison authorities, as does RLUIPA. At the very end, she seems
to caution all lower courts to be very careful before they find for
the prisoner. Seems to me the prisons now have a Turner v. Safley
rule in fact, even if it is an RLUIPA federal claim in theory.
One interesting aspect of the opinions is J. Thomas's reservation of
the issue of Congress's power under either the Spending or Commerce
Clauses. He seems to withdraw any concerns about spending at the
end of his concurrence, though, which leaves the question whether RLUIPA
is valid under the Commerce Clause up front and center for RLUIPA in both the
prison and land use contexts. Obviously, further litigation to
come.
Marci
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Robert Justin
Lipkin Professor of Law Widener University School of
Law Delaware
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