Cert granted in Cutter

Wed Oct 13 10:57:01 PDT 2004

Good. Just wanted to be sure.

Marc

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, October 13, 2004 12:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert granted in Cutter

yes

----- Original Message ----- 

From: marc stern <mailto:mstern at ajcongress.org>  

To: 'Law <mailto:religionlaw at lists.ucla.edu>  & Religion issues for Law
Academics' 

Sent: Wednesday, October 13, 2004 1:38 PM

Subject: RE: Cert granted in Cutter

Marty:

*        Are  you allowed to participate, given you're your service in the
Justice Department in drafting RLUIPA?

*  Marc

*  
  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, October 13, 2004 8:30 AM
To: Law & Religion issues for Law Academics
Subject: Re: Cert granted in Cutter

In response to a couple of e-mail inquiries, a clarification:

The petition in Cutter
(http://www.goldsteinhowe.com/blog/files/Cutter.petition.pdf) raises only
the Establishment Clause question, because that was the only ground on which
the CTA6 declared section 3 of RLUIPA invalid.  Ohio, however, has indicated
that it intends to urge the Commerce and Spending Clause arguments as
alternative grounds for affirmance.  (Presumably the state, in order to win
the case if it lost on the EC argument, would have to prevail on both its
Commerce and Spending Clause arguments, because the plaintiffs' case could
go forward if Congress could act under either authority.)

Therefore, petitioners, the SG, and their amici will have to decide whether
and to what extent the Commerce and Spending arguments will be addressed in
the topside briefs.  (I was mistaken to suggest previously that those
arguments "must" be addressed topside.)  The SG had urged the Court to hold
Cutter, and to deny cert. on the Commerce and Spending questions in Bass,
precisely in order to avoid this scenario and to focus the case on the EC
question.  

----- Original Message ----- 

From: Marty <mailto:marty.lederman at comcast.net>  Lederman 

To: Law <mailto:religionlaw at lists.ucla.edu>  & Religion issues for Law
Academics 

Sent: Tuesday, October 12, 2004 11:49 AM

Subject: Re: Cert granted in Cutter

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" < <mailto:apicarello at becketfund.org>
apicarello at becketfund.org>

To: "Law & Religion issues for Law Academics" <
<mailto:religionlaw at lists.ucla.edu> 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 

By GINA HOLLAND
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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