Cutter v. Wilkinson

• Decision Date: 07 November 2003
• Docket Number: No. 02-3301.,No. 02-3270.,No. 02-3299.,02-3270.,02-3299.,02-3301.
• Citation: 349 F.3d 257
• Parties: Jon 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.
• Court: U.S. Court of Appeals — Sixth Circuit

349 F.3d 257

Jon 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.

No. 02-3270.

No. 02-3299.

No. 02-3301.

United States Court of Appeals, Sixth Circuit.

Argued: September 10, 2003.

Decided and Filed: November 7, 2003.

COPYRIGHT MATERIAL OMITTED

Todd R. Marit (argued and briefed), Office of the Attorney General, Columbus, OH, for Appellants.

David A. Goldberger (argued and briefed), Ohio State University College of Law — Clinical Programs, Columbus, OH, Michael S. Raab (argued and briefed), Mark B. Stern (briefed), United States Department of Justice, Washington, DC, Benson Wolman, Wolman, Genshaft & Gellman, Columbus, OH, for Appellees.

Marc D. Stern (briefed), American Jewish Congress, Stephen Wise Congress House, New York, NY, for Amici Curiae.

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

OPINION

GILMAN, Circuit Judge.

Plaintiffs in these three consolidated cases are Ohio prisoners who contend, among other claims, that various Ohio corrections officials have violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-2000cc-5. The defendant officials filed motions to dismiss the RLUIPA claims, challenging the constitutionality of 42 U.S.C. § 2000cc-1, the section of the Act that applies to institutionalized persons. Their motions were denied by the district court. In this interlocutory appeal, defendants contend that RLUIPA (1) exceeds Congress's powers under both the Spending and Commerce Clauses, (2) violates states' rights under the Tenth Amendment, and (3) improperly advances religion in violation of the Establishment Clause of the First Amendment. For the reasons set forth below, we agree that the portion of RLUIPA that applies to institutionalized persons — specifically, 42 U.S.C. § 2000cc-1 — violates the Establishment Clause. We therefore REVERSE the district court's denial of defendants' motions to dismiss and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Because this appeal involves a facial challenge to RLUIPA, the facts of the individual cases are not particularly relevant. The prisoners in all three cases generally allege that officials with the Ohio Department of Rehabilitation and Corrections (ODRC) violated RLUIPA by refusing to accommodate the prisoners' religious beliefs and practices. Defendants, on the other hand, contend that RLUIPA has allowed inmate gangs to claim "`religious' status in order to insulate their illicit activities from scrutiny."

What is relevant to this case is the history and substance of RLUIPA. In 1990, the Supreme Court held that the United States Constitution does not require that government have a compelling state interest in order to enact a law of general applicability that incidentally burdens the exercise of religion. Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Congress responded in 1993 by enacting the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4. RFRA required that any governmental attempt to "substantially burden" the exercise of religion must be the least restrictive means of furthering a compelling state interest. 42 U.S.C. § 2000bb 1(b). The Supreme Court held RFRA unconstitutional insofar as it applied to states and localities because the statute exceeded Congress's powers under the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

Congress reacted to Boerne by passing RLUIPA in 2000. RLUIPA has the same substantive standard as RFRA. It provides, in relevant part, that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means" of furthering that interest. 42 U.S.C. § 2000cc-1(a). The Act defines "religious exercise" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). RLUIPA's requirement of strict scrutiny stands in sharp contrast to the Supreme Court's previous decisions, which have held that the courts should apply a rational-relationship review to restrictions upon inmates' fundamental rights. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (applying the rational-relationship test to prison rules regulating prisoner correspondence and marriage); O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (applying the rational-relationship test to prison rules regulating prisoners' religious exercise).

Congress enacted RLUIPA pursuant to its powers under the Spending Clause, U.S. Const. art. I, § 8, cl. 1, and the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. RLUIPA applies where "the substantial burden [on religious exercise] is imposed in a program or activity that receives Federal financial assistance." 42 U.S.C. § 2000cc-1(b)(1). The Act is also applicable where "the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes." 42 U.S.C. § 2000cc-1(b)(2).

RLUIPA creates a private right of action. Any person may "assert a violation of this chapter as a claim or defense in a judicial proceeding" and may obtain "appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). The United States may also seek injunctive or declaratory relief to enforce the statute. 42 U.S.C. § 2000cc-2(f).

RLUIPA's congressional sponsors specifically noted that they expected federal courts to respect the decisions of prison officials as to what restrictions on the exercise of religion are necessary in the prison context. A joint statement to the Senate expressed the sponsors' belief that federal courts would "continue the tradition of giving due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security, and discipline, consistent with considerations of cost and limited resources." Statements of Senators Hatch and Kennedy, 146 Cong. Rec. S7774-01, S7775 (2000).

B. Procedural background

The plaintiff prisoners brought suit against various Ohio corrections officials based upon claims arising under the First and Fourteenth Amendments. RLUIPA went into effect after suit was filed, causing plaintiffs to amend their complaints to include claims under the Act. Defendants then filed motions to dismiss the RLUIPA claims, arguing that the Act was unconstitutional. (All references to RLUIPA are to 42 U.S.C. § 2000cc-1 only, the portion of the Act that applies to institutionalized persons.) The United States intervened to defend the constitutionality of the Act. All three cases were consolidated in order to adjudicate the motions to dismiss at the same time.

On August 27, 2001, the magistrate judge filed a Report and Recommendation, which concluded that the statute was constitutional and recommended that the district court deny defendants' motions to dismiss. The district court entered an opinion and order adopting the Report and Recommendation on February 25, 2002. Approximately a year and a half later, on August 4, 2003, the court certified its February 25, 2002 order for immediate appeal pursuant to 28 U.S.C. § 1292(b). The parties then filed a joint petition for leave to appeal with this court on August 6, 2003, within the 10-day time limit imposed by the statute. We have previously granted the petition for leave to appeal.

II. ANALYSIS

A. Lineup of the courts

The Supreme Court has not yet considered the constitutionality of RLUIPA. Justice Stevens, however, in his concurring opinion in Boerne, concluded that RLUIPA's predecessor, RFRA, violated the Establishment Clause:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a "law respecting an establishment of religion" that violates the First Amendment to the Constitution.... [T]he statute has provided [religious organizations] with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.

Boerne, 521 U.S. at 536-37, 117 S.Ct. 2157 (1997) (Stevens, J., concurring).

Two circuits, without reference to Justice Stevens's concurring opinion, have come to the opposite conclusion regarding the constitutionality of RLUIPA. See Charles v. Verhagen, 2003 WL 22455960 (7th Cir. Oct. 30, 2003); Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.2002). Furthermore, five circuits, including the Seventh and Ninth, have concluded that the identical operative language in RFRA does not violate the Establishment Clause. See In re Young, 141 F.3d 854, 863 (8th Cir.1998); Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir.1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir.1996), vacated on other grounds, 521 U.S. 1114, 117 S.Ct. 2502, 138...