I agree that the true test on
the meaning of strict scrutiny under RLUIPA or RFRA will come with the UDV case
next term.
But I'd add that I don't
see a meaningful dilution of "strict scrutiny" in this decision. Instead,
the Court just reaffirmed two unremarkable propositions: (1) that prison security is a compelling state interest, and
(2) that prison officials are entitled to some deference in their assessment
whether a particular accommodation threatens that
interest.
Is this anything new? Is
it fair to say that the opinion says anything stronger than that?
Prison officials still bear the burden of proof and persuasion to show
that this interest is actually present in the particular context, and that they
have chosen the "least restrictive means" of serving that interest, also in
context. Incidentally, I could find no suggestion at all that "least
restrictive means" is somehow eliminated from that burden. In fact, I did
see a favorable citation to two district court opinions (fn11) where "least
restrictive means" was an important part of the analysis under
RFRA.
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marty
Lederman
Sent: Tuesday, May 31, 2005 11:47 AM To: Law & Religion issues for Law Academics Subject: Re: RLUIPA Unanimously Upheld in Cutter Well, this has been the paradox in Free Exercise
Clause law all along, hasn't it?: That the Court articulated a strict
scrutiny test in Sherbert/Yoder, but never came anywhere close to
applying such a test in the free-exercise context: The government
virtually always won, by hook or by crook (no substantial burden; compelling
interest; carve-outs for prisons/military/government "property," etc.).
(That's one primary explanation for Smith itself -- the
Court no doubt wished to call a halt to its own charade.) Congress adopted
the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that
courts should be just about as deferential to the state as the SCOTUS itself had
been in pre-Smith Free Exercise cases. The strict scrutiny
standard thus has the (intended) deterrence/in terrorem effect at the
administrative level -- at the very least deterring states from
denying exemptions where the harm is speculative, or where there really would be
very little cost involved, such as where the state makes analogous no-religious
exemptions. But if the state has a good reason for denying the exemption,
it likely will win in litigation. That's what has happened at the federal
level, with modest results that all parties appear to approve.
The real test of how effective RFRA and RLUIPA will
be will come in next Term's UDV case involving the application of that
statutory test to the prohibition on use of hoasca tea.
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