The plaintiffs inSixth Circuit case,
Cutter v. Wilkinson, have filed a petition for cert. The Case No.
is 03-9877. See http://www.supremecourtus.gov/docket/03-9877.htm.
If anyone has an electronic copy, please post it. The Courtwill not
rule on the petition in Cutter or in Bass v. Madison until the
SG files briefs for the Respondent United States. If such briefs are filed
by May 28th, then the Court will act on the petition(s) this Term (i.e.,on
or before June 28th).
- Original Message -
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Saturday, April 17, 2004 7:32
AM
Subject: Re: Cert. Petition in RLUIPA
Case
The case, Bass v. Madison, has been
docketed as No. 03-1404, and plaintiffs have acquiesced to cert. on the
Establishment Clause question (while opposing cert. on the remaining
questiions): http://www.goldsteinhowe.com/blog/files/bass.cert.acquiesce.pdf.
(No filing yet from the SG.)
Also, there's an article by Richard Schragger (U.
Va.) in the latest Harvard Law Review, The Role of the Local in the
Doctrineand Discourse of Religious Liberty, 117 Harv. L. Rev. 1810
(2004), that apparently (I haven't yet read it) argues that national
religious-accommodation law, such as RLUIPA, is problematic from a Religion
Clause perspective in ways that analogous state and local religious
accommodations would not be -- which also happens to be the
principaltheme of the State of Virginia's petition in
Bass.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Thursday, April 08, 2004 5:36
PM
Subject: Re: Cert. Petition in RLUIPA
Case
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 thatVirginia 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
providekosher 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 consideredMadison'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 probablya 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 -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Thursday,
