What Does Cutter Mean for Creationism?

The Supreme Court today ruled in a case called Cutter v. Wilkinson that the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) does not violate the First Amendment. This decision is the latest step in a back-and-forth between Congress and the Supreme Court over the degree to which the federal government can give religious groups special accommodations. Below, I’ll explain the history of the case, and its holding, and then why it’s important to the evolution/creationism controversy.

Back in 1990, the Supreme Court decided a case called Employment Division v. Smith,</i> 494 U. S. 872 (1990). There, the Court declared—correctly, in my opinion—that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Id.</i> at 879 (quoting United States v. Lee,</i> 455 U.S. 252, 263, n. 3 (1982)). In other words, if the government makes a general rule (say, a rule forbidding people to wear hats) and the rule is not a disguised attempt at clever religious persecution, then the law is not unconstitutional under the Free Exercise Clause simply because it forbids, e.g., Hindus from wearing turbans.

This decision did not please some people, who believe that the Free Exercise Clause does require some degree of “accommodation”—some degree of special exemptions for people whose religious beliefs forbid or require behavior in ways that might conflict with the law. And there are several cases in which the Supreme Court had sided that way. For instance, in Sherbert v. Verner,</i> 374 U.S. 398 (1963), the Court held that the Free Exercise Clause was violated when a woman was denied unemployment benefits because she refused to work on the Sabbath. And in Wisconsin v. Yoder,</i> 406 U.S. 205 (1972), the Court held that states could not require Amish children to attend school beyond the eighth grade, because doing so conflicted with Amish religious belief. In these cases and others, the Court had held that when a generally applicable, non-discriminatory law (you must work on Saturday; you must send your kids to school) conflicts with a religious belief, that the First Amendment barred such a law. But in Smith—where the plaintiffs were Native Americans who smoked peyote for religious reasons, and were fired from their jobs at (of all places) a drug rehab center, and then were denied unemployment benefits as a result—the Supreme Court held that the Free Exercise Clause did not bar that general law against drug use.

In response to Smith, Congress passed a law called RFRA—the Religious Freedom Restoration Act—which declared that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except…if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” By requiring government to prove a “compelling governmental interest” and a “least restrictive means” whenever it “substantially burden[ed]” a person’s exercise of religion, Congress was effectively restoring the Sherbert and Yoder understanding of the Free Exercise Clause. It placed the burden of proof on government to justify its barring religious acts. Congress claimed that it had authority to pass this statute under section 5 of the Fourteenth Amendment. That section gives Congress the authority to enforce the Fourteenth Amendment—which protects citizens’ rights to due process of law, equal protection of the laws, and the privileges or immunities of citizenship—by “appropriate legislation.”

But in City of Boerne v. Flores,</i> 521 U.S. 507 (1997), the Supreme Court held that RFRA was not “appropriate legislation,” so that the law was beyond Congress’ powers under section 5 of the Fourteenth Amendment. RFRA wasn’t appropriate legislation, the Court said, because when Congress uses its section 5 powers to remedy a perceived harm to the rights protected by the Fourteenth Amendment, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,” id. </i>at 520, and RFRA was not “congruen[t] and proportional[]” to remedying the perceived harm of religious burdens: “Even assuming RFRA…mandate[d] some lesser [burden of proof on the government]…the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.” </b>Id. </i>at 534. I disagree with this, but it is the law.

In reaction to Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), a law similar to RFRA, but applicable only to land-use regulation (zoning, for instance, or building permits) and to burdens on the religious exercise of people in prison. It holds that neither the states nor the federal government “shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person,” unless the government proves that the burden is “in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” It also holds that the government may not “impose a substantial burden on the religious exercise of a person residing in or confined to [a penal] institution,” without proving the same things.

Obviously, there was much debate over where RLUIPA was constitutional. In Cutter, the Supreme Court has unanimously held that it is.

The biggest problem with “accommodation” of religion is that it is easy for “accommodation” to become endorsement—and hence, to violate the Establishment Clause. If the government allows a Hindu to wear his turban in spite of a ban on headwear (which the government could do, but is not required to do, under the Free Exercise Clause), would that constitute government endorsement of Hinduism, which would violate the Establishment Clause? In many cases, such special exceptions would convey a message of government endorsement. So in Cutter, RLUIPA was challenged as a violation of the Establishment Clause.

The Court explained that the Establishment Clause was not violated because it only “alleviates exceptional government-created burdens on private religious exercise.” It does not grant special benefits, it only reduces an imposed burden: “[T]he ‘exercise of religion’ often involves not only belief and profession but the performance of…physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine…. [RLUIPA] covers state-run institutions–mental hospitals, prisons, and the like–in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise…. RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” (citation and quotation marks omitted). The Court pointed out that the military makes similar accommodations for religious practice:<blockquote>In Goldman v. Weinberger, </i>475 U.S. 503 (1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, “there is simply not the same [individual] autonomy as there is in the larger civilian community.” Id., at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that “a member of the armed forces may wear an item of religious apparel while wearing the uniform,” unless “the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative.”</blockquote></b>

If the Court were to hold that RLUIPA was unconstitutional, “all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail…as would…Ohio[’s policy of] provid[ing] inmates with chaplains….”

Also, RLUIPA doesn’t distinguish between different religions: Wiccans and Christians are treated identically. To the argument that the law nevertheless benefits religion in general over the lack thereof, the Court replied: <blockquote>[it is true that] an irreligious prisoner and member of the Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated [differently than would]…a member of the Church of Jesus Christ Christian challenging a similar withholding…. [But] Courts…may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order.</blockquote>

This argument introduces what I think is the most startling aspect of Cutter: it holds, essentially, that the “compelling interest/least restrictive means” burden imposed by RLUIPA is really just no big deal, because Strict Scrutiny isn’t what it used to be:<blockquote>We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests…. We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard…“[c]ontext matters” in the application of that standard. See Grutter v. Bollinger,</i> 539 U.S. 306, 327 (2003).</blockquote></b>

Grutter, of course, was the decision in which the Supreme Court held, astonishingly, that strict scrutiny did not bar the Court from “deferring” to administrators of a law. In other words, so RLUIPA requires a “compelling government interest,” but after Grutter, anything pretty much goes as a compelling interest, so what’s the problem?

The Court nowhere explains why RLUIPA survives in Cutter why RFRA failed in Boerne. What one gathers from the opinion is that RFRA was unconstitutional because it essentially created new rights for people who were not facing the sort of burdens on their rights that prisoners face; while RLUIPA only relieves persons in government custody from the burdens imposed on them by otherwise harsh disciplinary regimes. But this distinction lacks any solid legal foundation. Members of the military are not in government custody in the same way that prisoners are, so the analogy to the military fails, and arguing that X must be constitutional because otherwise Y would be unconstitutional also is an illogical (but, for the Supreme Court, extremely common) argument. And in the pervasive regulatory welfare state, in which even a minor construction project can require extensive government permitting and licensing, it seems silly to suggest that RFRA did anything less than RLUIPA with regard to “easing burdens imposed by government.” (Of course, the Court rejected that argument in Locke v. Davey, </i>540 U. S. 712 (2004).)

The success of RLUIPA against an Establishment Clause challenge—and particularly the military analogy in the Cutter decision—can be expected to encourage creationism activists. Those who wish to require “equal time” or other such things in government classrooms will see an opportunity to argue that requiring “equal time” or textbook disclaimers is nothing more than a reducing of the burden imposed on persons in government custody. In the appeal of the Cobb County case—in which the school board placed a disclaimer on biology textbooks telling kids “hey—wink, wink—nudge, nudge—evolution isn’t true, but they force us to teach it to you”—the creationists are making a very similar argument. We can expect proposals like the Santorum Amendment to be strengthened by the argument that Cutter removes any Establishment Clause problems with such proposals.

Of course, this decision was only a “facial” challenge—meaning that the plaintiffs argued that RLUIPA could never be constitutional under any circumstances whatsoever, and such challenges rarely succeed. In the future, “as applied” challenges might narrow RLUIPA significantly. Also, this was only an Establishment Clause case. A future case might find RLUIPA invalid under some other Constitutional provision. But Cutter is a victory for religious activists who seek to grant special favors to religion.