Mayweathers v. Newland

[Bradley P Jacob]

Some interesting points from the 9th Circuit's opinion:

(1) The court finds Spending Clause authority for RLUIPA and, since the CA
prison system receives federal funding, that's enough to decide this case.
The court does not address the more difficult Commerce power question.

        "2 Having established that RLUIPA satisfies the first three elements of the
        Dole test, we hold that Congress had the authority under the spending
        power to pass this statute. Accordingly, we need not decide whether
Congress
        also had the authority to pass RLUIPA under the Commerce Clause."

(2) The Lemon ghoul comes back from the grave once more, but the court finds
that RLUIPA satisfies Lemon.  On secular purpose:

        "RLUIPA intends a secular legislative purpose: to protect the exercise
        of religion in institutions from unwarranted and substantial infringement."

On primary effect:

        "The statute does not violate the Establishment Clause just because it
        seeks to lift burdens on religious worship in institutions without
        affording corresponding protection to secular activities or
        to non-religious prisoners. RLUIPA merely accommodates
        and protects the free exercise of religion, which the Constitution
        allows. See Corp. of Presiding Bishop."

(3) The court finds no separation of powers problem caused by progression of
Smith/RFRA/Boerne/RLUIPA:

        "RLUIPA does not erroneously review or revise a specific
        ruling of the Supreme Court because the statute does not overturn
        the Court’s constitutional interpretation in Smith. Rather,
        RLUIPA provides additional protection for religious worship,
        respecting that Smith set only a constitutional floor—not a
        ceiling—for the protection of personal liberty. Smith explicitly
        left heightened legislative protection for religious worship
        to the political branches."

(4) One of the Justice Dept. lawyers defending RLUIPA's constitutionality is
named Mark Stern.  Any relation, Marc?

Brad
_______________________________

Professor Bradley P. Jacob
Regent University School of Law
1000 Regent University Drive
Virginia Beach, VA 23464-9800
Voice 757-226-4523
Fax 757-226-4571
Email bradjac at regent.edu
_______________________________


-----Original Message-----
From: Law & Religion issues for Law Academics
[mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Marc Stern
Sent: Monday, December 30, 2002 4:31 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: 10th Cir. stays district court order in RFRA / hoasca drug
case


THE NINTH CIRCUIT HAS UPHELD THE CONSTITUIONALITY OF RLUIPA IN MAYWEATHERS
v. NEWLAND.THE OPINION IS AVAIALBLE ON THE NINTH CIRCUIT WEBSITE (DECIDED
12/27/02)
MARC STERN