Church-State Experts React to Unanimous Ruling

The Supreme Court yesterday upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that aims to protect the religious freedom of inmates and others held in state and local institutions. The unanimous decision in Cutter v. Wilkinson reverses a ruling by the Sixth Circuit Court of Appeals, which had held that the 2000 statute unconstitutionally advances religion by giving religious prisoners greater rights than their secular counterparts.


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Religious freedom advocates hailed the decision, saying it would have a far-reaching, positive impact. “Cutter is a win for religious exercise in prison, but more importantly, it is a thumping victory for religion-only accommodations nationwide,” said Anthony Picarello, president and general counsel for the Becket Fund for Religious Liberty. Furthermore, Picarello said, the decision confirmed a recent High Court trend toward more religious accommodation. “There’s a strong argument to be made that the anti-accommodation reading of the Establishment Clause has been dead for a long time, but this unanimous decision removes any lingering doubt.”

RLUIPA opponents said that the decision was too open-ended and that it could lead to great disparities in the way the government treats those who are religious and those who are not. “The court fails to provide a theory of when it is impermissible for the state to treat religion better than the secular,” said Richard Schragger, an associate professor at the University of Virginia School of Law. “It has thus invited Congress to adopt legislation in areas far beyond prison administration that will treat religiously motivated persons more favorably than others.”

On March 17, the Pew Forum on Religion & Public Life hosted a discussion on the merits of the RLUIPA case, featuring Professor Schragger; Nathan J. Diament, director of the Institute for Public Affairs at the Union of Orthodox Jewish Congregations of America; and Ira “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law at The George Washington University Law School. The full transcript of the discussion is available at

In February, the Forum published an in-depth backgrounder on the case, which provides legal and historical analysis of the issues in Cutter. An addendum to the backgrounder, analyzing Justice Ginsburg’s decision and its possible impact on future cases, is now available.

RLUIPA allows a state or locality to limit an inmate’s religious freedom only if it can show that the restriction advances a compelling government interest, such as maintaining prison security. The statute imposes the same standard on zoning laws and other land-use regulations that negatively impact churches and other houses of worship, but that section of the law was not at issue in the case.

The case began when a number of Ohio prisoners who are members of the Satanist religion and other unconventional sects sued the state, alleging that prison officials had not adequately accommodated their religious needs and had therefore violated RLUIPA. Ohio argued that because RLUIPA mandates religious accommodation, it is a “law respecting an establishment of religion” and therefore prohibited by the First Amendment.

Writing for the entire court, Associate Justice Ruth Bader Ginsburg rejected Ohio’s contention, arguing that the law “confers no privileged status on any particular religious sect ….” She compared RLUIPA with other constitutionally acceptable accommodations for religion, noting, for example, that a prison is constitutionally free to allow prisoners to assemble for worship even if the prison forbids inmates from holding political rallies.

“In the past, the court has said there is a zone between the government’s obligation to guarantee the free exercise of religion and its obligation not to establish religion, and that within that zone, it can legislate religious accommodation,” said David Masci, a senior fellow at the Pew Forum. “In Cutter, Justice Ginsberg has said that RLUIPA fits comfortably into that zone.”

The Pew Forum on Religion & Public Life delivers timely, impartial information to national opinion leaders on issues at the intersection of religion and public affairs; it also serves as a neutral venue for discussions of those matters. The Forum is a project of the Pew Research Center, a nonpartisan “fact tank” that provides information on the issues, attitudes and trends shaping America and the world.