Court upholds prison no-pork policy against Establishment Clause challenge

Wed Apr 18 11:42:21 PDT 2012

Marty, I recently read a piece by Charles Haynes in the Feb. 2012 issue of Report from the Capital (Baptist Joint Committee), in which he pointed out that secular, even anti-religious groups, with the help of courts, were using the principle of "equal treatment" as a way of dealing with, if not stopping, various kinds of gov't aid to religion, e.g., Gideons' distributing Bibles in public schools and Christmas crèches on public property.  In other words, according to the principle, if the Gideons can distribute Bibles in the schools and crèches can be placed on public property, then "pagan" literature can also be distributed in the schools and messages of atheism displayed in front of gov't buildings.  Question: how likely is it that such secular groups and others, e.g., vegetarians, will try to use "equal treatment" and these aforementioned precedents to obtain exemptions from valid, secular laws that are more or less equal to those that religious person/groups can now obtain under RFRA and RLUIPA, and what are their chances of being successful?

Ellis M. West

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, April 18, 2012 9:43 AM
To: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge

I think there's rough consensus here:

Decisions such as Amos, Texas Monthly and Cutter establish that an effort to alleviate a substantial state-imposed burden on religious exercise -- as RFRA and RLUIPA do by terms -- is not the sort of impermissible religious purpose or objective that has itself been deemed fatal in other contexts.  Nevertheless, such accommodations might still violate the First Amendment, on their face or as applied, if they impose undue substantial burdens on third parties, or if they give religion a preference in speech or assembly, or (possibly -- this suggested in Texas Monthly) if the burden being alleviated is not materially different in kind from burdens on analogous secular actors that the state does not endeavor to alleviate.

That is to say, the constitutional analysis for such accommodations is best considered not in Lemon terms, but with regard to the discrete set of cases dealing with such accommodations, such as those listed above, as well as Thornton v. Caldor, Welsh/Gillette/Seeger, etc.
On Mon, Apr 16, 2012 at 7:50 PM, Marci Hamilton <hamilton02 at aol.com<mailto:hamilton02 at aol.com>> wrote:
Eugene-- that does not respond to my point.   Cutter is a narrow opinion saying RLUIPA does not on its face violate the Establishment Clause.  It does not say that every program considered under RLUIPA is safe from Establishment Clause attack.

Marci

On Apr 16, 2012, at 5:54 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
                Well, Ellis was arguing that "the issue" was whether "RFRA and RLUIPA ... are secular in purpose and effect."  I read Cutter as concluding that they are, though indeed particular accommodations implemented out of a desire to avoid RLUIPA litigation might not be.

                Eugene

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu>] On Behalf Of Marci Hamilton
Sent: Monday, April 16, 2012 1:33 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge

Cutter only addressed the facial Establishment  Clause attack on the prison provisions of RLUIPA.  It did not protect any particular program or exemption from attack

Marci

On Apr 12, 2012, at 7:19 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
                Maybe it would and maybe it wouldn't, but I don't think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever "primary effect" might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose.

                As to RLUIPA being "secular in purpose and effect," the Supreme Court unanimously said in Cutter that RLUIPA is constitutional.  Maybe one can imagine contrary arguments, but they didn't impress any of the Justices, even Stevens.

                But even if RLUIPA didn't exist, the no-pork policy would be permissible for the reasons Doug mentions.  Likewise, a uniform vegetarian diet policy would also be constitutionally permissible.

                Eugene

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of West, Ellis
Sent: Thursday, April 12, 2012 2:39 PM
To: Law & Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge

I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet.

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536<tel:804-289-8536>
ewest at richmond.edu<mailto:ewest at richmond.edu>

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of West, Ellis
Sent: Thursday, April 12, 2012 5:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge

Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue.  Suppose these two laws did not exist.  Then would the prison policy in question be secular in nature?  The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons.  For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners.

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536<tel:804-289-8536>
ewest at richmond.edu<mailto:ewest at richmond.edu>

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu]<mailto:[mailto:religionlaw-bounces at lists.ucla.edu]> On Behalf Of Ira Lupu
Sent: Thursday, April 12, 2012 4:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge

Avoiding litigation (and there are many, many RLUIPA and free exercise cases about prison diets) and other forms of conflict, and having the efficiencies of a uniform diet for all prisoners, sound like secular purposes to me.
On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis <ewest at richmond.edu<mailto:ewest at richmond.edu>> wrote:
Although the District Court may be correct in saying that the primary purpose of the policy is not "to establish the religion of Islam" or to "promote the practice of Islam," it does concede that the policy "makes accommodating a multitude of religious practices and beliefs easier and more economical."  Would someone explain to me how that purpose and/or effect is "secular" in nature?  Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature.  How so?

Ellis M. West
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