54 RI Bar J., No. 5, Pg. 23 (Mar/Apr 2006). Headscarves Redux: Supreme Court's Unanimous Advice On Accommodations.

• Author: Elliot Taubman, Esq.

Rhode Island Bar Journal

Volume 54.

54 RI Bar J., No. 5, Pg. 23 (Mar/Apr 2006).

Headscarves Redux: Supreme Court's Unanimous Advice On Accommodations

Rhode Island Bar JournalMarch/April 2006 pg. 23Headscarves Redux: Supreme Court's Unanimous Advice On AccommodationsElliot Taubman, Esq.Elliott Taubman, Esq. practices law on Block Island.

For the first time in many years, the United States Supreme Court has rendered a unanimous decision on a First Amendment Freedom of Religion case. The unlikely beneficiaries are prisoners in Ohio. Cutter v. Wilkinson, --U.S.--, No.. 03-9877 (May 31, 2005). Justice Ruth Bader Ginsburg was able to garner this unanimity by following a path Justices Scalia and O'Connor already agreed upon: "accommodation". [see: Elliot Taubman, Headscarves, Skullcaps and Crosses, RIBJ Volume 53, Number 6, May/June 2005]. This position, now clearly adopted by the Court, is that there is a gray area between Establishment and Freedom of Religion where the Congress and the states have a right to legislate to accommodate religion. The Court upheld the institutionalized persons' rights provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc.

While O'Connor and Scalia strongly disagreed in City of Bourne v. Flores, 521 U.S. 507 (1997), which ultimately came down to a separation of powers between Congress and the Supreme Court, they could agree with Justice Ginsburg that Congress had the power to protect prisoners in the exercise of their religious actions. Scalia thought Congress had gone too far, as discussed in Bourne, in imposing a compelling interest test as to all religious actions, no matter in what context, without a record of infringement of religious rights. In the Ohio case, Congress had made an extensive record showing discrimination. The plaintiffs had a prima facie case of religious discrimination, where prisoners with "traditional" beliefs were accommodated while Muslims and Wickas were not. In this context, the Supreme Court upheld the requirement for a "compelling state interest" to interfere with the prisoners' observances. The finding by Congress, that this was a reasonable extension of the Fourteenth Amendment, was upheld.

In Headscarves, Skullcaps and Crosses, supra, this writer reviewed the conflict of First Amendment establishment and freedom of...