Journal of Gender, Social Policy & the Law Volume 14 | Issue 3 Article 5 2006 Heaven Help Us: The Religious Land Use and Institutionalized Persons Act's Prisoners Provisions in the Aftermath of the Supreme Court's Decision in Cutter v. Wilkinson Morgan F. Johnson Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Constitutional Law Commons, Criminal Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation Johnson, Morgan F. "Heaven Help Us: The Religious Land Use and Institutionalized Persons Act's Prisoners Provisions in the Aftermath of the Supreme Court's Decision in Cutter v. Wilkinson." American University Journal of Gender, Social Policy & the Law. 14, no. 3 (2006): 585-612. This Comment is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Johnson: Heaven Help Us: The Religious Land Use and Institutionalized Pers HEAVEN HELP US: THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT’S PRISONERS PROVISIONS IN THE AFTERMATH OF THE SUPREME COURT’S DECISION IN CUTTER V. WILKINSON ∗ MORGAN F. JOHNSON Introduction.........................................................................................586 I. Background......................................................................................588 A. Establishment Clause Doctrine ..................................................588 B. Prisoners’ Rights .........................................................................588 C. Background of RLUIPA .............................................................590 1. The Religious Freedom and Restoration Act.......................590 2. Enactment of RLUIPA ..........................................................591 D. Cutter v. Wilkinson.....................................................................592 II. Analysis.............................................................................................595 A. In the Aftermath of the Cutter Decision a New Standard of Review Emerges for Adjudicating RLUIPA Claims: Deferential Strict Scrutiny .........................................................595 B. The Implementation of RLUIPA Results in Excessive Requests for Accommodation and Unacceptable Burdens on Important Penological Interests...........................................599 1. RLUIPA’s “Religious Exercise” Requirement Allows for Excessive Litigation, Which Burdens Both the Prisons and Courts .............................................................................600 2. A Study of RLUIPA Cases Since the Statute’s Enactment Demonstrates the Judiciary’s Tendency to Ignore Significant Security Interests, When Faced with ∗ The author would like to thank her editors, John Kim and Amy Schumacher, and the Journal of Gender, Social Policy & the Law Staff. She dedicates this article to her parents for their unconditional love and support, her grandparents for being her role models and friends, and, finally, her husband, Tim Johnson, for encouraging her through every step of this long process and always making her smile. 585 Published by Digital Commons @ American University Washington College of Law, 2006 1 Journal of Gender, Social Policy & the Law, Vol. 14, Iss. 3 [2006], Art. 5 586 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 14:3 Prisoners’ Religious Claims...................................................603 C. A Future Supreme Court Decision to Revisit the Cutter Court’s Establishment Clause Analysis Could Avoid the Negative Impacts of RLUIPA....................................................606 Conclusion ...........................................................................................611 INTRODUCTION “There is not a shadow of right in the general government to intermeddle with religion.”—James Madison, Journal Excerpt, 1788.1 When President Clinton signed the Religious Land Use and Institutionalized Persons Act (RLUIPA) into law on September 22, 2000, he gave religious prisoners a powerful tool for challenging prison regulations that burden their religious freedom.2 In Cutter v. Wilkinson, the Supreme Court upheld the constitutionality of RLUIPA and consequently strengthened an already potent method for the religious prisoner to bring claims against prisons—one that is unavailable to non-religious inmates.3 To understand the potential effects of RLUIPA, imagine a prisoner in jail for murder, who announces to his guards that he cannot perform his work duties on Wednesdays because Wednesday is a holy day in his religion, a form of Satanism.4 Until this point, he has never mentioned or demonstrated that he follows any religion.5 This prisoner also tells the guards that, because of his beliefs, he will need martial arts classes and special food.6 If the prison officials deny his 1. AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, WHAT GOD HAS PUT ASUNDER: JAMES MADISON QUOTES ON CHURCH AND STATE, available at http:// www.au.org/site/DocServer/Madison.pdf?docID=141 (last visited July 26, 2006). 2. See Office of the Press Secretary, Statement by the President (Sept. 22, 2000), available at http://remnant-online.com/ubb/Forum24/HTML/000085.html (stating that President Clinton supported RLUIPA because it would provide protection for the religious rights of Americans). 3. See 125 S.Ct. 2113, 2121 (2005) (finding that RLUIPA is constitutional because it is a valid accommodation of religion). 4. Cf. Gregory S. Walston, Federalism and Federal Spending: Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional, 23 U. HAW. L. REV. 479, 480 (2001) (noting that in one claim that arose under RLUIPA a prisoner sought to avoid his Monday work duties by declaring a religion with a Monday Sabbath). 5. Cf. Kevin M. Powers, The Sword and the Shield: RLUIPA and the New Battle Ground of Religious Freedom, 22 BUFF. PUB. INT. L.J. 145, 163 (2004) (indicating that there is no requirement that a prisoner give authorities notice of his religion in order to obtain protection under the First Amendment). 6. Cf. Madison v. Riter, 355 F.3d 310, 313 (4th Cir. 2003) (upholding a RLUIPA challenge to prison officials’ refusal to provide a plaintiff inmate with a special kosher http://digitalcommons.wcl.american.edu/jgspl/vol14/iss3/5 2 Johnson: Heaven Help Us: The Religious Land Use and Institutionalized Pers 2006] HEAVEN HELP US 587 request, a court will most likely hear this prisoner’s claim under RLUIPA, even though the same court would probably dismiss his claim if it was not religious in nature.7 Thus, with the passage of RLUIPA, Congress enacted a law that favors inmates with religious beliefs over those who are agnostic or atheist, thereby blurring the traditional lines dividing Church and State.8 This Comment argues that the Supreme Court’s analysis of RLUIPA’s constitutionality will result in excessive litigation and unacceptable threats to important penological interests.9 Further, it contends that there is room for the Court to reexamine its application of Establishment Clause principles to RLUIPA to avoid these negative implications.10 Part I provides an overview of Establishment Clause jurisprudence and discusses the current state of prisoners’ constitutional rights.11 Additionally, Part I evaluates RLUIPA’s enactment, the Cutter decision, and its background.12 Part II.A argues that in Cutter the Court articulated a new standard in local prisons for adjudicating RLUIPA claims, which will lead to confusion in the lower courts.13 Finally, Part II.C considers the Court’s Establishment Clause analysis in Cutter and suggests alternate perspectives that the Court could have considered.14 diet). 7. See Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 (2005) (explaining that RLUIPA applies to cases in which the government imposes a substantial burden on religious exercise in a program or activity that receives federal funding or is subject to the Commerce Clause of the Constitution). 8. See Ada-Marie Walsh, Religious Land Use and Institutionalized Persons Act of 2000: Unconstitutional and Unnecessary, 10 WM. & MARY BILL RTS. J. 189, 189 (2001) (noting that RLUIPA protects only those citizens who adhere to an organized religious creed). 9. See infra Part II.B (discussing the way in which RLUIPA curtails prison officials’ ability to guard against security threats and escape risks). 10. See infra Part II.C (explaining that a future Court could reexamine the unconstitutional burden RLUIPA places on non-religious prisoners). 11. See infra Part I.B (discussing the rational basis standard courts apply to prisoners’ religious rights and other fundamental rights). 12. See infra Part I.D (discussing the factual circumstances and procedural history behind Cutter). 13. See infra Part II.A (explaining that, in Cutter, the Court placed restraints on RLUIPA’s strict scrutiny standard). 14. See infra Part II.C (explaining that the Cutter Court’s analysis focused on the Establishment Clause’s requirement that there be neutrality between particular religions, instead of between religion and irreligion). Published by Digital Commons @ American University Washington College of Law, 2006 3 Journal of Gender, Social Policy & the Law, Vol.