Conscience clause: Supreme Court unanimously upholds federal religious liberty law in Ohio prison case.

When Mitzi Hamilton, a low-level offender, entered Virginia corrections officials' custody in 2003 she made what she thought was a simple request--a kosher diet to adhere to the dictates of her Jewish faith.

Hamilton, 36, was sentenced to five-and-a-half years behind bars for fraud and forgery and, like many of her fellow inmates, was relying on her religious beliefs to help during incarceration. She quickly discovered, however, that inmates from minority faiths face serious obstacles. Virginia correctional officials responded to her request for a kosher diet by assigning her to a maximum-security prison in Troy, the only women's facility to offer meals intended to satisfy Jewish inmates' requests.

Thus, in order to observe the tenets of her faith, Hamilton would have to do hard time with other prisoners identified as violent and dangerous. Hamilton's attorney Richard McKewen told Church & State that she and other Jewish prisoners have also had problems trying to gain access to a rabbi and permission to observe rituals of their religion.

Now, thanks to the U.S. Supreme Court, Hamilton and inmates like her have more legal clout for their religious liberty claims. In May, the justices unanimously upheld a federal law guaranteeing prisoners the right to ask for reasonable religious accommodations. The Religious Land Use and Institutionalized Persons Act (RLUIPA), the court said, does not violate the First Amendment and must be obeyed.

Enacted during the Clinton presidency, RLUIPA requires state-run institutions such as prisons and mental institutions to alleviate substantial burdens that they place on the free exercise of inmates and patients. Government officials may restrict religious observance only if they can prove that such restrictions further "a compelling governmental interest" and do so by "the least restrictive means."

Some state correctional officials, however, have resisted the strictures of RLUIPA, and a number of conflicts have wound up in the federal courts. In one of those lawsuits, the 6th U.S. Circuit Court of Appeals agreed with Ohio correctional officials that RLUIPA violates the separation of church and state because it favors religious freedom over other fundamental rights.

In its May 31 Cutter v. Wilkinson decision, however, the Supreme Court concluded that the federal law does not "exceed the limits of permissible government accommodation of religious practices."

In a tightly crafted opinion, Justice Ruth Bader Ginsburg found that Section 3 of RLUIPA does not subvert the First Amendment "because it alleviates exceptional government-created burdens on private religious exercise."

But Ginsburg made clear that the federal law does not "elevate accommodation of religious observances over" prison security needs. Indeed, Ginsberg noted that federal court precedent shows that "an accommodation must be measured so that it does not override other significant interests."

Ginsburg also suggested that RLUIPA's protection for prisoners' religious liberties would not be an impediment to maintaining the safety and security of other inmates.

"We have no cause to believe," she wrote, "that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns."

In conclusion, Ginsburg added, "Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition."

The Cutter case evolved from a number of religious liberty lawsuits lodged against the Ohio Department of Rehabilitation and Correction in the late 1990s. One inmate, a member of Asatru, a pre-Christian religion that reveres the Norse gods, was being represented by Ohio State University Law School's Clinical Programs. David Goldberger, an OSU law professor and staff attorney in the school's Clinical Programs, told Church & State that he became involved in the case in late 1999.

After RLUIPA was passed in 2000, Goldberger and the Clinical Programs students amended their Ohio prisoner's complaint to include a claim that prison officials had violated the new federal statute. At the time, Goldberger said he had heard of the other prisoner lawsuits on religious liberty grounds and wanted to consolidate them into one action to show the "breadth of the problem" for minority religions.

A U.S. district judge agreed, and the lawsuit soon included an inmate trying to practice Wicca, a pre-Christian religion focusing on nature, a Satanist and an inmate belonging to the Church of Jesus Christ Christian, which calls for racial separation. The prisoners' combined legal effort argued that Ohio corrections officials had blocked them from practicing their religious beliefs in a number of ways, including denial of requests for literature and other accoutrements needed for their religious practices.

"The case was taken as pro bono," Goldberger said, "providing students a rich educational experience. Over the years, there have been a slew of students working on this case."

Attorneys for Ohio state government responded by arguing that RLUIPA is unconstitutional and asked the U.S. district court to dismiss the complaint. The district judge refused, but in fall 2003 a three-judge panel of the 6th Circuit reversed, siding with Ohio corrections officials.

Since a number of other federal circuits, including the 4th, 7th and 9th, had ruled that RLUIPA did not violate the First Amendment, it was hardly surprising that the Supreme Court would eventually step in to referee the disagreement.

Goldberger said he thought that many advocacy groups would rather have seen a case at the high court from one of the other circuits, where "kinder, gentler plaintiffs" were represented.

"I was also worded about our chances because of the plaintiffs," Goldberger said, "but these prisoners were our clients and we could not exactly quit at the twelfth hour. We had to proceed."

Goldberger thought his case was particularly attractive to the Supreme Court because the 6th Circuit's ruling dealt only with the First Amendment, not whether Congress had exceeded its Spending or Commerce Clause authorities in passing RLUIPA.

A wide range of public interest and advocacy organizations, some of whom are often on opposite sides of church-state debates, filed friend-of-the-court briefs with the Supreme Court arguing in favor of RLUIPA.

Americans United for Separation of Church and State and the American Civil Liberties Union supported the federal law, as did the socially conservative Becket Fund for Religious Liberty. (See "Religious Liberty Test," December 2004 Church & State.)

The alliance is hardly surprising. Many of these same groups joined forces to ask Congress to pass RLUIPA in the first place. The law is a successor to the 1993 federal Religious Freedom Restoration Act (RFRA), a federal statute that barred all government actions substantially burdensome to some religious freedoms, unless the government actions were supported by a compelling interest.

RFRA was spurred by the Supreme Court's 1990 ruling in Employment Division v. Smith.

The Smith decision, authored by Justice Antonin Scalia, was immediately controversial. According to Scalia, "neutral laws" that burden minorities' religious freedom do not require much justification from the government. Before Smith, the high court had ruled that government-imposed burdens on religious freedom must be accompanied by a showing of strong public necessity. It was that test that Congress was intent on restoring.

But in 1997 in City of Boerne v. Flores, the high court invalidated RFRA as applied to the states, saying Congress had exceeded its constitutional power.

Faced with this judicial hurdle, Congress tried again with RLUIPA. This measure targets only two areas of government regulation--those relating to land use and zoning and those dealing with institutionalized persons. (Congress grounded the federal act in its Spending and Commerce Clause powers.)

The high court's recent Cutter ruling only dealt with the section on institutionalized persons. In a footnote, Ginsberg said the justices were expressing "no view on the validity" of Section 2, the land-use portion of RLUIPA. (There are a number of federal cases dealing with the constitutionality of the land-use section of RLUIPA.)

Justice Clarence Thomas, in a rather tortuous concurring opinion, continued his crusade against long-standing precedents upholding church-state separation. He argued that the First Amendment's Establishment Clause is a "federalism provision" only meant to keep the federal government from interfering with state establishments of religion.

"Congress need not observe strict separation between church and state," asserted Thomas, "or steer clear of the subject of religion. It need only refrain from making laws 'respecting an establishment of religion'; it must not interfere with a state establishment of religion.

"For example," Thomas continued, "Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion."

Though RLUIPA did not violate the First Amendment, Thomas maintained in a footnote that the federal act "may well exceed Congress' authority under either the Spending Clause or the Commerce Clause."

Yet in his concurring opinion, Thomas concluded that as long as RLUIPA stands, "the States subject themselves to that condition by voluntarily accepting federal funds. The States' voluntary acceptance of Congress' condition undercuts Ohio's argument that Congress is encroaching on its turf."

It was Ginsburg's majority decision, however, that won praise from the ideologically diverse groups that had argued in favor of RLUIPA.

"This is a sensible decision that affirms the value of religious freedom while giving correctional institutions the ability to meet their security needs," said the Rev. Barry W. Lynn, Americans United executive director. "This decision reminds us that government must treat all religions equally. The state cannot play favorites among religions."

Goldberger, the lawyer for the Ohio inmates, told Church & State that he was pleased with Ginsburg's ruling.

"I was comfortable with what the court did," he said, "I did not think there was a need for a sweeping ruling that would place religious needs over non-religious needs."

It's also good news for Mitzi Hamilton, the Jewish inmate in Virginia. McKewen, her attorney, was heartened, but not surprised by the high court's ruling as well.

"I think it was a no-brainer, hence the 9-0 decision," he said.

According to McKewen, Congress intended RLUIPA to help clients like his and those in Cutter overcome intentional or unintentional government-imposed burdens on their religious practices.

Hamilton has already made substantial progress. In 2003, McKewen filed a federal lawsuit on her behalf, charging Virginia officials with violating her religious liberty and citing RLUIPA and constitutional protections.

Virginia corrections officials agreed to move Hamilton to a low-security facility and provide her kosher meals, thus settling a major issue in her lawsuit, but her attorney says the ruling in Cutter will prove useful in persuading the corrections officials to treat minority faiths on a par with majority ones.

"Hamilton had put in repeated requests to light one candle for Shabbat and prison officials turned her down," McKewen said. "It seems to me inequitable given that at Christmas-time services, officials allowed hundreds of candles to be lit and held by inmates."

McKewen said Virginia prison officials are still struggling in regard to the treatment of Jewish and Muslim inmates. For example, Hamilton and other prisoners continue to have a difficult time consulting rabbis. The Christian inmates, McKewen charges, have regular access to chaplains and are able to attend church-sponsored events at the prisons.

For the Jewish inmates, however, the onus is on them to find a rabbi who will make a trip to the prison, which are often in rural areas where there is no synagogue nearby. The Jewish clergy must then go through security to meet with the inmates.

"The rabbis are also required to go through background checks," McKewen said, "so there are several hurdles to overcome before they can visit the inmates."

Virginia officials also, according to McKewen, continue to deny Jewish inmates kosher Passover meals, which would include a traditional Seder plate, consisting typically of horseradish, a sprig of parsley, a vegetable, a small quantity of chopped apples and nuts, a bone and a hard boiled egg. The Seder plate is symbolic in nature and not meant to replace the kosher meal.

"We will continue to do whatever it takes to vindicate these inmates," said McKewen, who is a staff attorney with the Institute for Public Representation at the Georgetown University Law Center. "These are the kinds of injustices Congress had in mind when RLUIPA was passed. Look at the legislative history, which the majority cites in Cutter, and you'll see that Congress has a federal policy on this issue, and if you take federal funds you'll have to comply with federal policy."

Justice Ginsberg noted in Cutter that congressional hearings found widespread indifference and hostility to minority prisoners' claims. The investigation, which spanned three years, found frivolous or arbitrary barriers impeding prisoners' religious liberties. In a footnote, Ginsberg included numerous passages from some of the hearings, revealing an array of requests for religious accommodations that state prison officials fought.

For example, a state prison in Ohio refused to provide Muslims with halal food, while making kosher food available to Jewish inmates. In Michigan, prison officials barred the lighting of Hanukkah candles at all state prisons, but allowed smoking and the lighting of votive candles. A Catholic priest in Tulsa, Okla., told a House panel that he was in a constant battle with prison officials over the use of sacramental wine for mass, and that inmates' religious possessions "such as the Bible, the Koran, the Talmud or items needed by Native Americans ... were frequently treated with contempt and were confiscated, damaged or discarded."

Now that RLUIPA has been upheld by the Supreme Court, some of the claims may have a different outcome.