Cutter v. Wilkinson, 02-3270.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation423 F.3d 579
Docket NumberNo. 02-3270.,No. 02-3301.,No. 02-3299.,02-3270.,02-3299.,02-3301.
PartiesJon B. CUTTER; J. Lee Hampton, Plaintiffs-Appellees, United States of America, Intervenor-Appellee, v. Reginald WILKINSON; David Schwartz; Nicholas G. Menedez; L.C. Coval; K.L. Brown; George D. Alexander; Dianne Walker; Jim Erwin; Ron Carnein; Rudy Pringle; Walter Lowery, Defendants-Appellants. John Miller, et al., Plaintiffs-Appellees, United States of America, Intervenor-Appellee, v. Reginald Wilkinson; David Schwartz; Terry Collins; Cheryl Hart; Charles R. Griffin; Charles Griffin, Chaplain, Defendants-Appellants. John W. Gerhardt, Plaintiff-Appellee, United States of America, Intervenor-Appellee, v. Alan Lazaroff, Warden; Kenneth Byers; Don Wilson; Mary Henderson; Sherry Williamson; Kristina Hackett; Steven Weingart; Ron Clifton; Robert Englund; Charles Conrad; Stacha Doty; Jack Taylor; William Blaney; Carol Martin; June Coleman; Dave Morris; Vance York; Susan Coolie; Stephanie Walker; Rachel Hettinger; Kenneth E. McDonald, Defendants-Appellants.
Decision Date13 September 2005

ARGUED: Todd R. Marti, Office of the Attorney General, Columbus, Ohio, for Appellants. David A. Goldberger, Ohio State University College of Law—Clinical Programs, Columbus, Ohio, Michael S. Raab, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Todd R. Marti, Office of the Attorney General, Columbus, Ohio, for Appellants. David A. Goldberger, Ohio State University College of Law—Clinical Programs, Columbus, Ohio, Michael S. Raab, Mark B. Stern, United States Department of Justice, Washington, D.C., Benson A. Wolman, Wolman & Associates, Columbus, Ohio, for Appellees. Marc D. Stern, American Jewish Congress, Stephen Wise Congress House, New York, New York, for Amici Curiae.

Before: MOORE and GILMAN, Circuit Judges; TARNOW, District Judge.*

OPINION

GILMAN, Circuit Judge.

These consolidated cases come to us on remand from the United States Supreme Court. In all three, Ohio prisoners sued state corrections officials for alleged violations of the First Amendment's Free Exercise Clause and of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 (2000). The prison officials mounted a facial challenge to the constitutionality of the section of RLUIPA that applies to institutionalized persons, arguing that the statute violates the Establishment Clause of the First Amendment, is barred by the Tenth Amendment, and exceeds Congress's powers under both the Spending and Commerce Clauses. In response, the United States intervened to defend the constitutionality of RLUIPA.

The district court, after adopting the Report and Recommendation of the magistrate judge that rejected all of the prison officials' arguments, upheld the Act. Gerhardt v. Lazaroff, 221 F.Supp.2d 827, 829 (S.D.Ohio 2002). On an interlocutory appeal, we reversed the judgment of the district court, reaching only the Establishment Clause issue. Cutter v. Wilkinson, 349 F.3d 257, 259-60 (6th Cir.2003) (hereinafter Cutter I). The inmates sought review by the Supreme Court, which reversed and remanded the case for further proceedings. Cutter v. Wilkinson, ___ U.S. ___, ___, 125 S.Ct. 2113, 2125, 161 L.Ed.2d 1020 (2005) (hereinafter Cutter II). We now address the prison officials' remaining constitutional challenges, and, finding none persuasive, AFFIRM the judgment of the district court.

I. BACKGROUND
A. Factual and statutory background

Much of the factual and procedural background of the cases is set forth in our prior opinion and that of the Supreme Court, see Cutter II, 125 S.Ct. at 2117-2120; Cutter I, 349 F.3d at 260-61, and is not repeated here. The history and substance of RLUIPA remain central to our analysis, however, and are therefore set forth in some detail below.

1. History of RLUIPA

In 1990, the Supreme Court held in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-82, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that laws of general applicability that incidentally burden religious conduct are not subject to strict-scrutiny review under the First Amendment's Free Exercise Clause. Congress responded to Smith by enacting the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb-1 to -4. RFRA bars the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability," unless the government can proffer a compelling interest and show that the law "is the least restrictive means of furthering" that interest. 42 U.S.C. § 2000bb-1(a), (b). This test effectively reinstated the strict-scrutiny standard that the Court had rejected in Smith. Four years after RFRA's passage, the Court invalidated the Act as applied to the states and their subdivisions, holding that RFRA exceeded Congress's remedial powers under Section 5 of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 532-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The statute remains in force, however, as applied to the federal government and federal territories and possessions. See Cutter II, 125 S.Ct. at 2118 n.2.

Seeking to fill the gap created by City of Boerne, Congress passed RLUIPA in 2000, this time invoking its powers under the Spending and Commerce Clauses. See U.S. Const. Art I, § 8, cls. 1, 3. RLUIPA makes RFRA's strict-scrutiny standard applicable whenever a substantial burden is imposed on religious exercise by a state government and (1) occurs "in a program or activity that receives Federal financial assistance," or (2) "affects, or removal of that substantial burden would affect," interstate or foreign commerce. See 42 U.S.C. § 2000cc-1(b)(1-2). But if the only jurisdictional basis is the Commerce Clause, RLUIPA offers state officials the option of proving, as an affirmative defense, that the substantial burden on religious exercise—or the removal thereof—would not in the aggregate substantially affect interstate or foreign commerce. See id. § 2000cc-2(g).

Section 3 of RLUIPA, the only part of the statute at issue in the present case creates a private cause of action for institutionalized and incarcerated persons who allege that a state government has substantially burdened their religious conduct. See 42 U.S.C. § 2000cc-1(a), 2(a). The strict-scrutiny standard mandated by § 3 significantly altered the framework for evaluating inmates' Free Exercise claims that had prevailed since the Court's decision in O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), which held that prison regulations infringing on inmates' rights under the Free Exercise Clause are valid so long as the regulations are "reasonably related to legitimate penological interests." Id. at 349, 107 S.Ct. 2400 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).

At oral argument before the Supreme Court, Chief Justice Rehnquist raised the question of whether RLUIPA suffers from the same constitutional infirmities as the provisions of RFRA previously invalidated in City of Boerne. See Transcript of Oral Argument at 4-5, Cutter II, ___ U.S. ___, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (No. 03-9877). But the Solicitor General explained that RLUIPA is not "an effort to rewrite a rule of decision for all cases like RFRA was," id., and the Court's opinion notes that RFRA, unlike RLUIPA, "lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds." Cutter II, 125 S.Ct. at 2118; see also Mayweathers v. Newland, 314 F.3d 1062, 1070 (9th Cir.2002) (rejecting a similar separation-of-powers challenge to RLUIPA and concluding that "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."). With these doubts resolved, we now turn to the prison officials' other constitutional challenges.

2. ODRC's receipt of federal funds

Throughout this litigation, the Ohio Department of Rehabilitation and Corrections (ODRC) has consistently received federal funding. ODRC was the beneficiary of approximately $25.5 million per year when RLUIPA went into effect in September of 2000. See Brief for Petitioners at 7-8, Cutter II, ___ U.S. ___, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (No. 03-9877) (chronicling the amount and types of grants received between 2001 and 2004). That amount, though substantial, comprised less than one percent of ODRC's annual budget. By 2004, when the parties filed their briefs in the Supreme Court, ODRC expected to receive over $35 million in federal funds—just over 2% of its approximately $1.6 billion budget. See id.

The federal government provides grants to ODRC directly and by funding other Ohio departments, which then transfer those funds to ODRC. Direct federal grants to ODRC fall into three broad categories: general operations, prisoner improvement, and prisoner subsistence. Such grants include the Violent Offender Incarceration and Truth in Sentencing Incentive Grants; the State Criminal Alien Assistance Program; grants intended for prisoner education, job training, and treatment for drug addiction; and monthly payments under the Federal School Breakfast Program and Federal School Lunch Program.

3. ODRC's connections to interstate commerce

The prisoners characterize ODRC's links to interstate commerce as threefold. First, ODRC acquires from the stream of commerce goods and services that it uses in prison operations, ranging from medical supplies to long-distance telephone service. ODRC's second connection is its role in sponsoring programs that allow inmates to produce goods and provide services for buyers outside of Ohio. Finally, ODRC transports prisoners between states pursuant to prisoner-exchange agreements with other states and with the federal...

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