RLUIPA at four: evaluating the success and constitutionality of RLUIPA'S prisoner provisions.

• Author: Gaubatz, Derek L.
• Position: Religious Land Use and Institutionalized Persons Act of 2000

1. INTRODUCTION II. RLUIPA'S LEGISLATIVE HISTORY AND THE HISTORICAL BACKGROUND OF PROTECTION OF RELIGIOUS EXERCISE OF PRISONERS III. HOW THE ACT OPERATES A. A Brief Overview of the Act B. The Elements of a Prisoner's Claim for Relief Under RLUIPA 1. RLUIPA's Merits Requirement--Demonstrating a Substantial Burden on Religious Exercise a. Substantial Burden b. Religious Exercise i. "Any" religious exercise is protected by RLUIPA ii. Actions Must Be "Religious" to Be Protected iii. Religious Exercise Need Not Be "Compelled" by a System of Religious Belief to Be Protected iv. Religious Exercise Need Not Be "Central" to a System of Religious Belief to Be Protected 2. RLUIPA's Jurisdictional Requirements-Demonstrating Either Spending Clause or Commerce Clause Jurisdiction a. Spending Clause Jurisdiction b. Commerce Clause Jurisdiction 3. RLUIPA's Exhaustion Requirement-- Demonstrating Compliance with the PLRA C. Defending Against a RLUIPA Claim 1. The Strict Scrutiny Test Applies 2. Unlike the Turner/O'Lone standard, RLUIPA Shifts the Burden of Proof to Defendants 3. Prison Administrators Will Not Be Able to Rely on Merely Legitimate or Important Interests 4. Prisoners can defeat assertions of a compelling government interest where the prison allow similar conduct that damages the asserted interest 5. How Strict Is RLUIPA's Strict Scrutiny Standard? D. RLUIPA's Remedies IV. THE SUCCESS OF RLUIPA CLAIMS ON THE MERITS A. Cases Challenging the Denial of a Religious Diet 1. Cases Challenging Prison Grooming and Clothing Policies B. Cases Challenging Restrictions on Group Worship and Special Ceremonies C. Cases Challenging Limits on access to Religious Literature and Devotional Items D. General Observations On the Record of Merits Claims Under RLUIPA In Its First Four Years V. RLUIPA Is A CONSTITUTIONAL EXERCISE OF CONGRESSIONAL POWER A. RLUIPA Section 3 Does Not Violate the Establishment Clause 1. RLUIPA Has a Secular Purpose 2. RLUIPA Does Not Have the Primary Effect of Advancing Religion a. RLUIPA does not cause the government to advance religious exercise itself, but rather to avoid interference with private religious actors as they advance religious exercise b. None of the rationales suggested by the Sixth Circuit and RLUIPA's critics distinguish RLUIPA from the myriad accommodations of religious exercise by the political branches that follow the best of our traditions i. The Establishment Clause Does Not Prohibit Law Passed Solely to Accommodate Religious Exercise ii. RLUIPA Does Not Have Any Impermissible Effects on the Religious Freedoms of Others iii. The Mandates of the Free Exercise Clause Are Not a Ceiling On Permissible Accommodation of Religious Exercise 3. RLUIPA Does Not Foster Excessive Entanglement With Religion B. RLUIPA Section 3 Is a Constitutional Exercise of Congress's Spending Power Under Article I 1. RLUIPA Is in Pursuit of the General Welfare 2. RLUIPA Places Unambiguous Conditions on the Receipt of Federal Funds 3. RLUIPA's Conditions Relate to a Legitimate Federal Interest 4. RLUIPA Does Not Violate Any Independent Constitutional Requirement C. RLUIPA Section 3 Is a Constitutional Exercise of Congress's Commerce Clause Power Under Article I D. RLUIPA Section 3 Does Not Violate the Tenth Amendment E. RLUIPA Section 3 Does Not Violate the Eleventh Amendment F. RLUIPA Does Not Violate Separation of Powers Principles VI. CONCLUSION "Remember those in prison as if you were their fellow prisoners, and those who are mistreated as if you yourselves were suffering."

   Hebrews 13:3

1. INTRODUCTION

   More often than not, when Congress or the courts have remembered prisoners, it has been to further circumscribe their right to access the courts. For example, the Prisoner Litigation Reform Act of 1995 placed a variety of procedural and administrative barriers in place before prisoners could access the federal courts, (1) and Congress's 1996 habeas reform, (2) limited the range of substantive claims prisoners could bring in federal courts. The Supreme Court has also been stingy in extending rights to prisoners, holding in a pair of cases that limitations on prisoners' constitutional rights in civil cases--including the fight to free exercise of religion--are subject only to the rational basis test, the lowest level of constitutional scrutiny. (3) Lower courts also gutted the protections afforded to prisoners' religious exercise under the Religious Freedom Restoration Act (RFRA) in the four years it applied to the states (before being held unconstitutional), ruling against prisoners in over 90% of the cases. (4)

   The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (5) represents a remarkable departure from that this trend. In RLUIPA, Congress created--without a dissenting vote (6)--a specific cause of action to protect and accommodate the religious exercise rights of prisoners. Specifically, it provides that state action that "substantially burdens" a prisoner's "religious exercise" is unlawful unless prison officials can demonstrate that burdening religious exercise is the "least restrictive means" of achieving a "compelling government interest." Moreover, recognizing that lower courts had undermined the protections of RFRA by construing it to protect only a narrow range of religious exercise, Congress took special care in drafting RLUIPA to enact a definition of religious exercise that corresponds to the inclusive approach the Supreme Court has taken in defining protected religious exercise under the Free Exercise Clause. (7)

   Though a circuit split on the Act's constitutionality has provoked the Supreme Court to address RLUIPA's constitutionality this term, (8) it is significant that the Act has already survived longer than its predecessor, RFRA, and recently enjoyed its fourth anniversary. Accordingly, with four years of data to examine, it is appropriate to take stock of how the Act operates, whether it has had more success than RFRA in protecting prisoners' religious exercise, and whether the arguments of its critics that it is unconstitutional have any merit.

   Part I of this article provides a historical overview of the protection of the religious exercise rights of prisoners in the United States and a description of RLUIPA's legislative history. Part II examines RLUIPA's provisions in detail and lays out what a prisoner must prove to invoke RLUIPA's jurisdictional provision, what remedies a prisoner is entitled to under RLUIPA, what a prisoner must prove to establish a substantial burden on religious exercise, and what type of religious exercise is protected under RLUIPA. Particular attention is paid to how RLUIPA's definition of "religious exercise" seeks to rectify judicial interpretations of RFRA that led to prisoners losing the overwhelming majority of claims brought under RFRA. This section also examines what prison officials must demonstrate to establish a compelling government interest and the least restrictive means of advancing that interest and how a faithful application of RLUIPA's strict scrutiny test is likely to affect the most commonly asserted reasons for prison officials' decisions to burden religious exercise.

   Part III of this article then turns to an empirical examination of how RLUIPA prisoner claims have fared in the first four years of the Act's existence. This section concludes that the record thus far indicates that the Act has enabled prisoners to enjoy moderately more success in pursuing religious liberty claims than prisoners did under RFRA. The empirical record also reveals that the flood of claims feared by RLUIPA's critics has not materialized. Finally, in light of the Supreme Court's decision to resolve the circuit split concerning RLUIPA's constitutionality, Part IV examines and rejects the arguments of RLUIPA's critics that the Act is an unconstitutional exercise of congressional power.

2. RLUIPA's LEGISLATIVE HISTORY AND THE HISTORICAL BACKGROUND OF PROTECTION OF RELIGIOUS EXERCISE OF PRISONERS

   The desire to engage in religious exercise among prisoners in the United States is widespread. One recent study found that "[r]eligious practice in prison can be very extensive with about 50% of inmates attending religious services an average of six times per month." (9) Historically, however, prisoners in the United States enjoyed very little protection of their religious exercise rights, as a prisoner was simply viewed, in the words of one court, as a "slave of the State." (10) "Even when the earliest American prisons allowed worship, '[t]here was little tolerance granted to prisoners of religions that did not fit the [Protestant] mold.'" (11) Although federal courts began to increasingly open their doors in the New Deal era and afterwards to constitutional claims against state officials, they continued to display little interest in providing a forum for prisoners to bring free exercise (or other constitutional) challenges to the policies of prison administrators. As one circuit court put it in the 1950's, "it is not the function of the Courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined." (12)

   In the 1960s and 70s, however, the pendulum began to swing the other way, as federal courts became increasingly receptive to prisoner religious exercise claims. This opening volley in religious freedom prisoner litigation was led largely by Black Muslims and other minority religions, and, for the first time, resulted in declarations from lower federal courts that "insofar as possible within the limits of prison discipline[,] ... prisoners" should be allowed to practice their religion in prison." (13) Then, in Cruz v. Beto, (14) the Supreme Court added its weight to this trend, holding that a prison had a duty to provide Muslim prisoners "reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to...