My colleague Steve Goldberg helpfully identifies a couple of constitutional anomalies suggested by the Supreme Court’s 2005 decision in Cutter v. Wilkinson. In that case, the Court unanimously upheld the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), notwithstanding the fact that the statute requires state officials to accommodate religious exercise—to grant religious exemptions to otherwise generally applicable regulations—in prisons and other institutions. [Disclosure: I helped draft RLUIPA when I worked at the Department of Justice, and after I left the government, I filed an amicus brief in Cutter on behalf of Senators Hatch and Kennedy, defending the constitutionality of the statute.]
I think Steve is correct about one implication of Cutter; but
I have some doubts about his broader reading of the decision.
First, Steve notes that although the Free Exercise Clause does not of its own accord compel such religious exemptions (not, anyway, under the Court’s modern FEC doctrine), the Free Exercise Clause must still be doing some work in “permissive accommodation” cases such as Cutter, because there is no other way to explain why such preferred treatment does not violate the Establishment Clause. As Steve writes in his sharp and provocative recent essay on Cutter (14 Wm. & Mary Bill of Rights J. 1403 (2006)), the Free Exercise Clause “is not passive. It pulls some legislation into a zone of safety that otherwise would be crushed by the Establishment Clause.”
I think this is absolutely right. Although the current Court is not inclined
to read the Free Exercise Clause as mandating religious exemptions in
many circumstances, it is willing to allow states to choose to grant
such exemptions under limited circumstances—namely, where the exemption
alleviates a substantial, government-imposed burden on religious exercise
without imposing significant burdens on other private parties. In addition to
Cutter, see Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). This doctrine can
only be explained as a sort of Free Exercise-generated “exception” to the “no
religious preference” rule that the Establishment Clause otherwise
prescribes.
Moreover, as Steve emphasizes in his essay, a state is
permitted to thereby accommodate the exercise of one constitutional
liberty—religious exercise—without simultaneously accommodating other
constitutional liberties: Ohio can, for instance, alleviate prison-imposed
burdens on inmates’ religious exercise by providing them with a special
religiously appropriate diet, even if it does not also choose to alleviate the
burdens that incarceration imposes on the exercise of other constitutional
liberties, such as the rights of speech, privacy, marriage, petitioning,
etc.
Steve’s second reading of Cutter,
however, is much more far-reaching, and somewhat more
contestable.
“The big news,” Steve writes in his essay, “is that Cutter empowers Congress to give religious expression a preferred position in relation to political expression.” (My emphasis.) In other words, Steve reads Cutter as holding that where a RLUIPA-generated accommodation of religious exercise takes the form of accommodating religious expression (or assembly), the state may grant such an accommodation even where it declines to similarly accommodate analogous nonreligious inmate expression or assembly.
Here’s Steve’s provocative example,
drawn from the facts of Cutter itself: “Congress can require that a
meeting time and place be made available for The Church of Jesus Christ
Christian, a white supremacist religion, while not requiring that any provision
be made for the Aryan Nation, a white supremacist political
group.”
In short, on this reading,
Cutter permits pro-religion viewpoint and content discrimination that
the Free Speech Clause (or the Free Assembly Clause) would otherwise
forbid.
I understand why Steve reaches this conclusion, but I don’t
read Cutter to go nearly so far.
As Steve explains in his essay, in virtually any other
context it would be very difficult to imagine the Court approving of a state
preference for religious over nonreligious expression or assembly. Take, for
instance, the long line of “equal access” cases beginning with Widmar v.
Vincent. For example, in its 2001 decision in
Good News Club, the Court held that if a school board made school
facilities available for private groups discussing “character and morals,” the
Free Speech Clause prohibits the school board from excluding a religious group
that taught youngsters “moral lessons from a Christian perspective through live
storytelling and prayer.” It is, I think, inconceivable that the Court would
have allowed the school to give a preference in access to the prayer
group. Similarly, in Rosenberger, the Court held that where the
University of Virginia paid for the printing costs of a wide array of student
journals of diverse viewpoints and perspectives, it could not deny such a
subsidy to journals that “primarily” reflected views for or against
religion: That would be impermissible viewpoint discrimination. Is it really
possible, however, that the University of Virginia could choose to subsidize
only the religious journals?
Of
course not. And in fact, on the few occasions when the Court has spoken directly
to the question, it has indicated that viewpoint-based preferences for religious
expression (or publication, or speech-related assembly) are
unconstitutional. See, e.g., Heffron v. International Soc’y for
Krishna Consciousness, Inc., 452 U.S. 640, 652-653 (1981) (suggesting that
if the state granted Krishnas an exemption from a state
fair rule prohibiting distribution of leaflets, it would be required to extend
such an exemption as well to other organizations seeking similar speech
rights on the fairgrounds); Texas Monthly, Inc. v. Bullock, 489 U.S. 1,
25 (1989) (White, J., concurring in the judgment) (tax
exemption specifically for religious publications discriminates on basis of
content of publication and therefore violates Free Press Clause); id.
at 28 (Blackmun, J., concurring in the judgment, joined by O’Connor, J.)
(similar, although oddly resting on the Establishment Clause: “A statutory
preference for the dissemination of religious ideas offends our most
basic understanding of what the Establishment Clause is all about and hence is
constitutionally intolerable.”).
Even the
strongest and most eloquent of defenders of permissive religious accommodation
appears to agree: “Favoring religious speakers over similarly situated
nonreligious speakers would violate the viewpoint-neutrality requirement of the
Free Speech
Clause.” Michael McConnell, 50 DePaul L. Rev. at 40. (As far as I know,
the only notable defense of viewpoint discrimination in favor of religion in the
context of speech and assembly appears in Justice Scalia’s dissent in Texas
Monthly, 489 U.S. at 44-45. But Justice Scalia’s analysis consists almost
entirely of ipse dixit (e.g., “it is impossible to believe that the State is
constitutionally prohibited from taxing Texas Monthly magazine more heavily than
the Holy Bible”—Why is that so impossible to believe? It seems perfectly
sensible to me.); and, in any event, the Court did not adopt it. (Justice
Blackmun suggested that preferences for religious expression could survive Free
Press Clause scrutiny where the Free Exercise Clause requires the
exemption, id. at 26-27, but he did not indicate that a permissive
accommodation could be content-based in a way that would otherwise violate
the Press Clause.))
Indeed, precisely because
such a preference for religious expression or assembly would raise serious
constitutional concerns in its own right, I have argued (in my amicus
brief in Cutter) that as a matter of
statutory interpretation RLUIPA does not require states to grant
such a preference: “[I]f in a particular case a prison official would violate
someone else’s constitutional rights by granting a requested religious
accommodation—such as, for example, by granting content-based preferences for
prisoners’ religious expression in a manner that the Free Speech, Press or
Assembly Clauses of the First Amendment would forbid [citing Heffron
and Texas Monthly]—then the avoidance of that constitutional
violation would itself be a 'compelling interest' that would, under RLUIPA’s own
statutory standard, justify denial of the accommodation (at least in
the form it was requested).”
(This is not to say that a state
would never have to grant an expression- or assembly-based RLUIPA
accommodation—only that if it does, it must do so in a manner that avoids
impermissible viewpoint discrimination, such as by extending the exemption
more broadly to nonreligious claimants, too. If there are compelling
reasons for refusing to grant such a broadened extension, the state might
satisfy its RLUIPA burden for denial of any exemption. But where such an
argument is made, the choice should be between the broadened exemption (not
limited to religion) or no exemption at all, because a viewpoint-based exemption
for religious expression alone would appear to be constitutionally
untenable.)
I’m not sure Steve himself disagrees
with all of this. But he reads Cutter as calling it into serious
doubt. In particular, Steve focuses on the fact, noted in Justice Ginsburg’s
opinion for the Court, that Ohio itself had historically allowed prisoners “to
assemble for worship, but not for political rallies.” 544 U.S. at 724-725.
Steve views the Court as having noted this practice “with favor,” and as
therefore indicating that “preferring religious assembly to political assembly
is an acceptable accommodation.”
In my view, this singular reference
in Cutter to Ohio’s practice of preferring religious assemblies in
prison doesn’t quite bear the weight that Steve would give it, for three
reasons.
Most importantly, I don't think it's
right to read the passage in question as suggesting that the identified
pre-existing Ohio religious exemptions were necessarily
constitutional. Justice Ginsburg's point, as I read it, was merely
that such practices undermined Ohio’s own constitutional argument
to the Court (i.e, if, as Ohio contended, all religious accommodations must
be matched with accommodations of other constitutional rights, then Ohio itself
had been violating that principle all along). For example, Ginsburg also noted
that Ohio had chosen to provide special treatment for “traditionally recognized”
religions. But such a sect-based preference would almost certainly be
unconstitutional (see Larson v. Valente), and there’s no reason to
suppose that Ginsburg, or the Court, intended to suggest that a discriminatory
accommodation in favor of “established” religions would be permissible. Likewise
with her example of a preference for religious over political
assemblies.
Second, even if Justice Ginsburg had
intended to suggest that the state could draw the lines that it
traditionally had enforced, the example she gives does not establish the broad
principle that Steve suggests. There are, of course, quite dramatic practical
differences between assembly for worship and a political
rally—differences that might warrant disparate prison treatment, wholly
apart from the content of the speech at the assembly. Thus, for
example, a prison might be able to forbid prisoner “rallies” in general—of a
political or of a religious (or other) nature—but still allow quiet and
peaceful assemblies for worship or discussion. The passage in Cutter
does not say anything about a state’s power to distinguish between religious and
political rallies, or between assembly for worship and assembly for a
political discussion. Therefore even on the strongest reading of this
passage, it does not as a general matter “prefer[] religious assembly to
political assembly is an acceptable accommodation,” where the two assemblies in
question are indistinguishable in every respect save the content of what is
spoken there.
Finally, it may simply be the case
that the usual constitutional requirements of content- and viewpoint-neutrality
do not fully apply in prisons. Somewhat surprisingly, the Court has
never definitively resolved this question. In Turner v. Saffley, the
Court noted that “[w]e have found it important to inquire whether prison
regulations restricting inmates’ First Amendment rights operated in a neutral
fashion, without regard to the content of the expression.” 482 U.S. at
90; see also Procunier v. Martinez, 416 U.S. at 415. In Thornbugh
v. Abbott, the Court qualified this somewhat, by holding that where prisons
draw distinctions between publications solely on the basis of their potential
implications for prison security, “the regulations are ‘neutral’ in the
technical sense in which we meant and used that term in Turner.” 490
U.S. at 415-416.
The Court could have further
clarified the doctrine—and applied it to the context of a preference for
religious content, in particular—in last Term’s decision in Beard v. Banks, where the Court upheld a policy
whereby some prisoners were denied all access to newspapers, magazines, or
personal photographs except that they were permitted to receive legal
and personal correspondence and religious and legal
materials. Pursuant to this policy, it appears that the prison denied
prisoners the right to receive the Christian Science Monitor but allowed them to obtain the Jewish Daily
Forward, based on the determination of a prison official that the latter
qualifies as a religious publication and the former does not. 126 S. Ct. at
2593.
For for some reason, however, the prisoner
respondents in Beard did not raise the content-discrimination issue,
and therefore the Court did not address it.
If, as the result (if not the rationale) in Beard suggests, the Free Speech Clause does not in the first instance forbid prison officials from preferring religious expression in a content-based manner, then of course the application of RLUIPA in that setting simply does not raise any First Amendment questions once the Establishment Clause argument is overcome (as it was in Cutter). And, if that is the case, then Cutter should not be read to suggest that outside the prison walls—where viewpoint neutrality is the usual rule—religious accommodation may take the form of a preference for religious expression or assembly over analogous expression or assembly of a nonreligious nature.
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