Cert granted in Cutter

Marty Lederman marty.lederman at comcast.net
Tue Oct 12 08:49:53 PDT 2004

What's remarkable is that the Court did exactly the opposite of what the SG urged -- it granted in Cutter and held in Bass v. Madison.  Therefore not only must defenders of the statute file their briefs topside, but they must address all of the constitutional arguments -- Commerce and Spending, in addition to the Establishment Clause.  What could have been a discrete and interesting EC case has now turned into a potential blockbuster on several important constitutional questions that have ramifications far beyond the reach of RLUIPA.

----- Original Message ----- 
From: "Anthony Picarello" <apicarello at becketfund.org>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Tuesday, October 12, 2004 11:30 AM
Subject: Cert granted in Cutter

Supreme Court to Review Inmate Freedom Law 

Associated Press Writer

WASHINGTON (AP) -- The Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism.

The case does not question inmates' right to practice their religion, but asks whether states have to accommodate requests for a particular diet, special haircut or religious symbols.

Some states argue that a 2000 law intended to protect the rights of prisoners amounts to an unconstitutional government promotion of religion - and that it makes prisons more dangerous.

States that receive federal funds must accommodate prisoners' religious beliefs unless wardens can show that the government has a strong reason not to, under a 2000 law.

The Supreme Court will consider an appeal from Ohio inmates, described as a Wiccan witch, a Satanist, a racial separatist who is an ordained minister of the Christian Identity Church, and others.

The state inmates had sued claiming they were denied access to religious literature and ceremonial items. The Cincinnati based-6th U.S. Circuit Court of Appeals used their case to strike down the law, called the Religious Land Use and Institutionalized Persons Act, on grounds that it violates the separation of church and state.

"All of (the law's) defenders and antagonists, whether public or private, whether winners or losers below, are all of one voice on the need for some review in some case, and Ohio joins that chorus," Ohio Solicitor Douglas Cole told the court.

He said that inmates can use religion as a cover to promote gangs.

The inmates' lawyer, Ohio State University law professor David Goldberger, said that prisoners are stripped of many of their rights, but access to religious should not be one of them.

The First Amendment both guarantees the freedom to exercise one's religion and says government may not "establish" religion. As interpreted by the Supreme Court, the Establishment Clause has come to mean that government is generally prohibited from promoting or endorsing religion.

Before Congress acted, "prisoners, detainees and individuals institutionalized in mental hospitals faced substantial and unwarranted burdens in freely practicing their faiths," the Supreme Court was told by Bush administration lawyers. The administration has defended the law.

The case is Cutter v. Wilkinson, 03-9877.
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