1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0397P (6th C ir.) File Name: 03a03 97p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
No. 02-3270 J ON B. C UTTER ; J. L EE H AMPTON ,

Plaintiffs- Appellee s,

U NITED S TAT ES OF A MERICA , Intervenor-Appellee,

v.

R EGINA LD W IL KIN SON ; D AVID S CHWAR TZ ; N ICHO LAS G. M ENEDEZ ; L. C. C OVAL ; K. L. B ROWN ; G EORGE D. A LEXANDER ; D IANNE W ALKER ; J IM E RWIN ; R ON C ARN EIN ; R

UDY P RINGLE ; W ALTER L OWERY , Defenda nts-Appe llants.

No. 02-3299 J OHN M ILL ER , et al.,

Plaintiffs- Appellee s,

U NITED S TAT ES OF A MERICA , Intervenor-Appellee, X

- - - -
> , - - - - - - - - - - - - - - - - - - - - - - - - Nos. 02-3270/ 3299/3301 2 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

v

.

R EGINA LD W IL KIN SON ; D AVID S CHWAR TZ ; T ERRY C OLLI NS ; C HERYL H ART ; C HARLES R. G RIFFIN ; C HARLES G RIFFIN , Chaplain, Defenda nts-Appe llants.

No. 02-3301 J OHN W. G ERHARDT ,

Plaintiff-Appellee,

U NITED S TAT ES OF A MERICA , Intervenor-Appellee,

v.

A LAN L AZARO FF , Warden; K ENNETH B YERS ; D ON W IL SON ; M ARY H ENDERS ON ; S HERRY W IL LI AMSON ; KRIS TINA H ACKE TT ; S TEVEN W EINGART ; R ON C LI FTON ; R OBER T E NGLUND ; C HARLES C ONRAD ; S TACHA D OTY ; J ACK T AYLOR ; W IL LI AM B LANEY ; C AROL M ART IN ; J UNE C OLEMAN ; D AVE M ORR IS ; V ANCE Y ORK ; S USAN C OO LIE ; S TE PHA NIE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 3

* The Honorable Arthur J. Tarnow, Uni ted Stat es Dist rict Judge f or the Eastern Distri ct of Michigan, sit ting by designat ion. W ALKER ; RACHEL H ETTINGER ; K ENNETH E. M C D ONALD , Defenda nts-Appe llants. - - - - - N
Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

umbus. No. 97-00 382; 98-00 275; 95-00 517—James L . Graha m, Edmund A. S argus, Jr., Distric t Judges.
Argued: September 10, 2003
Decided and Filed: November 7, 2003

Befor e: MOORE a

nd GILMAN , Circuit Jud ges; TARNOW, District Judge. *

_________________ COUNSEL

ARGUED: Todd

R. Marti, OFFICE OF

THE ATTORNEY GEN ER AL, Columbus, Ohio, for Appellants. David A. Goldberger, OHI O STATE UN IVER SITY

CO L LEGE OF LAW - CLI NICA L PROG RAMS, Columbus, Ohio, Michael S. Raab, UNITEDSTATES DEPARTMENT OF JUSTICE, Washington, D.C ., fo r Appellees. ON BRI EF: Todd R. Marti, OFF ICE O F TH E AT TOR NEY GEN ER AL, Columbus, Ohio, for Appellants. D avid A. Goldberger, OHIO STATE UNI

VERS IT Y COL

LE GE OFLA

W - CLIN ICAL PROGRAM S, Columbus, Ohio, Mich ael S. Raab
, Mark B. Ster n, UNITED STATES DEPARTMENT OF 4 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

JUSTICE, Washingt

on, D.C., f

or Appel lees. Marc D. Stern, AMERICAN

JEWISH CO

NGRESS, STEPHEN WI SE CONGRESS HOUSE, New Yor k, New York, for Amici Curiae.

_________________

OPINION

_________________ RONAL D LEE G

IL MAN, Circ

uit Judge. Plaintiff

s i n thesethree c onsolidat

ed case s are Oh

io priso ne rs who contend, among other claims, that various Ohio corrections officia ls have vio lat ed the Religious Land Use a nd Institutionalized

Persons Act (RLUI PA), 4 2 U .S.C. § 2000cc–2000cc-5. The defenda nt offici als filed

motions to dismiss the RLUI

PA claims, challenging theconstituti onality of 42 U.S.C. § 2000cc-1, the section of the Act that applies to institutionalized persons. Their motions were denied by the districtcourt. In this interlocutory appeal, defendants contend that RL UIPA (1) exceeds Congress’s powers under both the Spending and Commer

ce Clause s, (2) vio lates sta tes’ rig hts under the Tenth

Amendme

nt , and (3) improperly

advances religion in violation of the Establishment Clause of the First Amendmen

t. For the reasons set forth below, we agre e that the portion of RLUI

PA that applies to institutionalized persons —sp ec if

ic al ly, 42 U.S.C. § 2000cc-1—violates the EstablishmentCla

use . We therefore REVERSE the district court’s denial of

defenda nts’ motion s to dismiss an d R EMAND the case

for fur ther pro ceeding s consiste nt wit h this opinion.

I. BACKGROUND

A. Fac tual backgr ound

Becau se this appeal involves a facial challeng e to RLUI PA, the facts of

the individua

l cases a re not pa rticular ly r elevant

.Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 5

The prisoners in all three cases g eneral ly a llege t hat offic ials with the Ohio Department of Rehabilitation and Corrections ( ODRC ) violated RLUI

PA by refusing

to accommodate the prisoners’ religious beliefs and practices. Defendants, on the other ha nd, conte nd that RL

UIPA has allow ed inm ate gangs to claim “‘rel igious’ status in or der to ins ulate the ir illicit activities from scrutiny.”

What is relevant to this case is the history and substance of RLUI PA. In 1990, the Supreme Court held that the U nited States Constitution does not requi re tha t government have a compelling state interest in order t o ena ct a law of general ap plic ability

that incidentally burdens the e xercise of religion. Employment

Div., De pt. of Huma n Res. v. Smith , 494 U.S. 872 (1 99 0) . C on gr es s r es po nd ed in 19 93 by e na cting the Religious Freed

om Restora

tion Act (RFRA), 42U.S.C. §§ 2000bb—2000bb- 4. RFRA required that any governmentalattempt to “substant i ally burden” the exerc ise of religion must be the least restrictive means of furthering a comp elling state interest. 42 U.S.C. § 2000bb-1(b). Th e Supreme Court held RFRA unconstitutional insofar as it applied to states and localities because the statute exceeded Congress’s powers under the Fourteenth Amendment. City of Boerne v. Flores , 521 U.S. 507 (1997). Congre ss reacted to Boer ne by passing RLUI

PA in 2000. RLUI PA has the sa

me substa

nt iv e st and ard as R FRA . It provides
, in relev ant part , that “[n]o governme nt shall imp ose a substantial burden on the religious exercise of a person residing in or conf

ined to an institution” unless the burden “ is infurther ance of a compel ling governmen

tal inter est” and “is the least restrictive means” of furthering that intere st. 42 U.S. C. § 20 00cc-1(a). The Act defines “ religious exercise”

as “any e xercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C . § 200 0- cc5(7)(A). RLUI

PA’s requirement of

strict scrutiny

stands in sharp contrast to the Supreme Court’s previous de cision s, whichhave h eld tha t the cour ts should a

pply a rational6 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

relation ship review t

o restrictions uponinmates’ fundamental rights. See Turner v. Safley , 482 U.S. 78 (1987) (applying the

ra t ional-re lationship

test to prison rules regulating prisoner correspondenceand marr iage) ; O’Lone v. Estate of S habazz
, 482 U.S. 342 (1 987) (ap

ply ing the r ational- relation ship test to prison rules regulating prisoners’ re ligious exercise). Congre ss enacte d RLUI

PA pursua

nt to its powers under the S p ending Clause, U.S. Const. art. I, § 8, cl. 1, and the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. RLUI PA applies where “the substantial burden [on religious exercise] is im po se d i n a pr og ra m o r a ct iv it y tha t receives Federal financial assista

nc e.” 42 U.S.C. § 2000cc-1(b)(1). The Act is also applicable where “the substantial burden af fects, o r removal of that su

bstantial burden w ould aff

ect, com me rc e with foreig n nations, among the several States, or with Indian tribes.” 42 U.S.C. § 2000cc-1(b)(2).

RLUI PA creates a privat

e right of action. Any

person may “assert a violation of t hi s chapter as a claim or defense in a judicial procee ding” a

nd may obtain “appropriate relief agains ta government.” 42 U.S.C. § 2000cc-2(a). The United States may

also seek injunctive or declaratory relief to enforce the statute. 42 U.S.C. § 2000cc-2(f).

RLUI PA’s congr

essional sponsors s

p ecif ically noted that they expected federa l courtsto respect

the decisions of prison officia ls as to what restrictions on the exercise of religion are

necessar y in th e prison context. A joint statement to the Senate ex pr essed the

sponsors’ belief that fede ral cour ts would “continue the tradition of giving due defe rence to the experience and exper

tise of pr ison and ja

il administr

ators in establishing necessary

regul ati ons and pr

ocedure s to mainta

in good order, s ecurity

, and disc ipline, c onsistent w ith considerations of cost and limited resources.” Statements of Senators Ha tc h a nd Ke nn ed y, 146 C ong. Rec. S7774-01, S7775 (2000).Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 7

B. Proc edural bac kground

The plaintiff

prisoners broug

ht suit ag ainst vario us Ohio corrections officia

ls based up on claims

arising under the First and Fourtee nth Amendmen

ts. RLUI PA went into effect after suit was filed, causing

plaintiff s to amend

their co mplaints to include claims under the Act. Defendants then filed motions to dism iss t he RLUIPA cl aims, argu ing that the Act was unconstit utional. (All ref

erence s to RLU

IPA are to 42U.S.C. § 2000cc- 1 only , the port ion of th e Act th at applie s to institutionalized persons.) The United States interven edto defend the constitutionality of the Act. All three cases were consolidated

inorder to

adjudica te the moti ons to dismis s at the same time.

OnAugust 27, 2001, the m agist rate judge filed a Report and Recommendation, w hich concluded that the statute was constitutional and reco mmen ded that the district court deny defenda nts’ motions to dismiss. The district courtentered an opinion and order adopting the Report and Recommendation

onFebruary

25, 2002. Approximat

ely a year and

a half later,

onAugust 4, 200 3, the court certified its February 25, 2002 order for immed

iate app eal purs

uant to 28 U .S.C. § 1292(b). The parties then

filed a joint petition for leave to appea l with this court on August 6, 200 3, within the 10-day time limit imposed by t he st at ut e. We ha ve pr ev io us ly g ran ted the petition f or leave to appea l.

II. ANALY SIS A. Lineup of the courts

The Supreme C ourt has n ot y e t considered the constituti onality

of RLUI PA. Justi ce Steve

ns, howev er, in his

c oncurringopinion in Boerne , concluded that RLUI PA’s predec essor, RF RA, violat ed the Est ablishmen

t Clause: 8 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

Inmy opinion, the Religious Fre edom Restoration Act of 1993 (RFRA) is

a “law r especti ng an e stabli sh ment of religion” that violates the First Amendment to the Constitution.

. . . [T]he statute has provided [religious organ izations] with a legal weapon that no atheist or agnosti c can obtain. This governmental prefer e nce for religion, as op po se d t o i rr el ig io n, is fo rb id de n b y t he First Ame

ndment.

Boerne , 521 U.S. a

t 536-37 ( 1997) (Ste

vens, J., concurring).

Two ci rcu its, without reference to Justice Stevens’s

con curring opinion, have come to the opposite conclusion regarding th e con stitutionality of RLUI PA. See Charles v. Verhagen
, No. 02-3572 (7th Cir. Oct. 30, 2003); Mayweath ers v. Newland , 314 F.3d 1 062 (9th Cir. 2002). Furthermore, five circuits, including the Seventh a nd Ninth, have concluded that the identica l o perativ e langu age in R FRA does not violate the Establishment Clause. See In re Young , 141 F.3d 854, 863 (8th Cir . 1998); Mockaitis v. Harcleroad
, 104 F.3d 1522 , 1530 (9th Cir. 1997); Sasnett v. Sullivan , 91 F.3d 101 8, 102 2 (7th Cir. 1996), vacated on other grounds
, 521 U.S. 1114 (19 97) ; EEOC v. Catholic Univ. of Am. , 83 F.3d 455, 470 (D.C. Cir. 1996) ; Flores v. City of Boerne , 73 F.3d 1352, 1364 (5th Cir. 1996), rev’d on other grounds
, 521 U.S

. 507 (1998 ). Two dis trict cou rt opinion s, in addit

ion to the one below, have also concluded tha t RL UIPA

is constituti onal. See Johns on v. Martin , 223 F. Supp. 2d 820 (W.D. Mich. 2002); Char les v. Verhagen , 220 F. Supp. 2d 955 (W.D. Wis. 2002), aff’d, No. 02-35 72 (7th Cir. Oct. 30, 2003). Agains tthis apparent

juggernaut of

circuit and district court opinions stand two district court decisions that reach the opposite concl usion . One is Madison v. Riter , 240 F. Supp. 2d 566 (W.D. Va. 2003) (Turk, J.) , and the other is Kilaab Al Ghashiyah (Khan) v. Dep’t of Cor recti ons , 250 F. Supp. 2d 1016 (E.D. Wis. 200 3) (Adelman, J.), overruled by CharlesNos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 9

v. Verhagen
, No. 02-3572 (7th Cir. Oct. 30, 2003). Both are remark ably well-worded and persuasive opinions that clea

rly set forth the history of RL UIPA, the analy

tical basis fo r concluding that

RLUI PA violates the Establishment Clause, and the unpersuasive nature of the contrary opinions. Indeed,

our own analysis can ( and will) be considerably stre amlined by repeated referenc es to Madison and Ghashiyah

. (In ex pl ic ab ly, the Seventh Circuit in Charles mak es no reference to either of these district court opinions.)

B. RLUIPA violates

the Establi shment C lause beca use itfavors re ligious ri ghts over other fundamental rights without any

showing that r eligious rights are at any greater risk of deprivation

The Establishment Clau se of the First Amendment to the U.S. Constitutio n stat es: “Congress shall make no law respecting

an establishment of r eligio n.” Neutrality is the fundamental requirement

of the Establishment Clause, which prohibits govern ment f

rom ei ther en dorsi ng a par ticular religion or promot

ing rel igio n gener ally. Bd. of Educ. of Kiryas Joel Vi llage Sch. Dist. v. Grumet , 512 U.S. 687, 703 (1994) (“ [A] p rinciple at the heart of the Establishment Clause[is] that government should not prefer one reli gion to another , or relig

ion to irreligion.”); see also Ghashiyah , 250 F. Sup p. 2d a t 1021 (collecting cases that discuss the neutrality require

ment).

In Lemon v. Kurtzman , 403 U.S. 602 (1 971), the Supreme Co urt articulated a three-part test to determine whe ther a statute violates the Establishment Clause. A statute (1) “mus t have a secular legislative purpos e,” (2) “its principal or primary effect must be one that

neither advanc es nor inh

ibits religion,” and (3) it must not crea te “excessive government entanglement

with religion.” Id . at 612-13 (internal quotation marks and citations omitted). The Supreme Court suggested

a modification to the Lemon test in Agostin i v. Fe lton , 521 U.S. 203, 232- 35 (1997) , in the context of considerin g the 10 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

constituti onality

o f g overnme

nt aid to pa

rochial schools, where the Court

proc eede d to a

naly ze entanglement under the effect prong rather than as a separ ate factor. Based

upon our precedent of ap plying the Lemon test other than in aid-toeducation cases, h owever, we will proceed with the traditional three-part Lemon analysis. See, e. g., Adland v. Russ , 307 F.3d 471, 479 (6th Cir. 2002) (applying the Lemon test to decid e that a Kentuc

ky l egisla tive reso luti on directin

g the sta te to
move a Ten Commandments monument to a permanent sit e onthe state

capitol g

rounds vio lated the

Est ablishment Clause). 1. The purpose of RLUIPA

“T he pur pose prong of the Lemon test asks whether government’s actual purpose is to endors e or di sapprove of religion.” Edwards v. Ag uillard, 482 U.S. 578, 585 (1987) (quoting Lynch v. Donnelly , 465 U.S. 668 , 690 ( 1984) (O’Conn o r, J., concurring)). Lemon ’s requirement of a secular purpose “does not mean that the law’s purpose m ust be unrelated to religion . . . .” Corp. of the Presiding Bishop of the Chu rc h of Jesus Christ of Latter-Day Saints v. Amos
, 483 U.S. 327, 335 (1987). Instead, the purpose p

rong “ aims at prevent ing the r elevant gover nme ntal d ecisionmaker . . . fromaband onin g neutr alit y and acti ng w ith the intent of promoting a particular point of view in religious matters.” Id.

In Amos , the Supreme

Court con sidered

whether Congre ss had violated the Establishment Clause by exempting re ligious organizations from Title VII ’s pr ohibi tion against religious discrimination in employment

. Amos held that “it is a permiss i ble legislative purpose to alleviate significant governmentalinterference wi th the ability of relig ious organizations to define and car

ry out th eir r eligious missions.” Id . I n the present case, plaintiffs argue that RLUI PA has a virtually identica l purpos e: to alleviat

e significant

interference by

prison officials with the ability of p risoner s to exercis e their r eligiou s beliefs

. But materialNos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 11

differences ex is t b etw een th e ap pl ica ti on o f RLU IPA in a prison setting and the Title VII exemption at issue in Amos

. One key diffe

ren ce is that the exemption in Amos was arguably necessary

to avoid a violation of the Establishment Clause. W ith out the exemption, Title VII would ha ve required courts to inte rfere with the internal workings of religious organizations, and fear of liabil ity might have affected the way re ligious organizations carried ou t their missions. Id. at 336; see also id. at 344 (Brenna n , J.,
concu rring) (“A ca se-by -case a naly sis f orall activities therefore would both

produce

excess i ve government entanglement

with relig ion and create the danger of chilling religious activity.”). Ena cting RLUI

PA, o n the other hand,

was not even arguably

nec essary to avoid a violation of the EstablishmentClause. The Supreme Cour t had pre viously h el d that government interference with prisoners ’ fundamental rightsis not subject to strict scrutiny, as RLUI PA requires, but

only to a rational-re lationship review. See Turner , 482 U.S. 7 8; O’Lone , 482 U.S. 342.

Another key diff

eren ce between RLUI

PA and the exemption in Amos is that RLUIPA swe eps much more br oa dl y. As one commentator noted abo ut RFRA , the predecessor

to RLU

IPA that has ide

ntical sub stantiv e provision s: Comparing RFRA to Amos is like co mparing apples to orang es. RFRA, unlike Amos , does not exempt religion fr om regulat ion fo r the p urpos e of avo idin g an Esta blishmentClause violation. Rather, RFRA institutes

a standard of review in every case wh ic h implicates religious conduct. . . . Amos did not invol ve a law that exempted religion from

every la w in the country. Rather, it permitte d the exemp t ion of religious employe rs from

a pa rticular

require ment in pre scribed

circumst ances. The law in Amos lacked RFRA’s vast sco pe; therefore, 12 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

Amos cannot dictat e how RFRA fares under the Establishment Clause.

Marci A. Hamilton, The Religious Freedom Restoration Act is Unconstitutional, Period , 1 U. Pa. J. Const. L. 1, 13-14 (1998).

The broader scope of R LUI PA suggests that its actual purpose is no t to ac commo date re ligio n by remov ing a particular obstacle to religious exercise, but “to advance religion inprisons r

elative t o other constitutionally protected conduct.” Ghashiyah , 250 F. Su pp. 2d at 1 024. If t

hat is indeed the true purpose of RLUI PA, then Congress has “abandoned

n e utrality and acte d with the purpose of furthering religion,” in violation of the Establishment Clause’s fundamental command of go ve rn me nt al ne ut ra li ty. Id. at 1025.

Resolution of the questionof whether RLUI PA has the proper purpose o f allevia

ti ng go vernmen

t interfe rence w ith religious ex erciseor the prohibited purpose of advancing religion in pri so ns is not necessary to our ultimate decision regarding the Act’s c onstitutionality. Even if the purpose of RLUI PA fits within the rule of Amos , RLUI PA is still unconstitutional because it has the primary ef fect of advancing

religion. See Amos , 483 U.S. a t 334-35 ( “At some point, accommodation may de volve into an unlawful fost ering of religion . . . .”) (internal quotation marks omitted). 2. The effect of RLUIPA

“The effec t p ron g [of the Lemon test] asks whether, irrespective of government’s actual purpose, the pra ctice under review in fact

conve ys a messag e of endorsement or disapproval.” Lynch v. Donne lly , 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). I n evaluating this prong, the two most relevant factors are (1) whether a particular g overnment actionbenefits both secular and r eligious entities, andNos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 13

(2) whether the action will induce religious exercise, ra ther thanonly prot ectin g it. See Ghashiyah , 250 F. Supp. 2d at 1025-26 (collecting aut

horities t hat have used thes e factors in EstablishmentClause cases). Apply ing these f

act ors to the present case demonstrates that RLUI PA has the effect of impermiss ib ly advanc in g religion by giving greater

protection to religio us right s th an to other constitutionally protected rights.

Prior to RL UIPA , restric

tions impose d by

prison of ficials uponinmates’ fundamental rights were subject to arationa

lrelation ship review, see Turner , 482 U.S. 78 ; O’Lone , 482 U.S. 342, which requires courts to consider: (1) whether there is a “valid, rational connection” between the prison regulation and a legitimate government interest; (2) whe ther inmates have alternative means of exercising the rig ht in question; (3) the impact of a requested accommo dation of the right uponguards and other

inmates ; and (4) the absence of alternatives to the regulation. Turner , 482 U.S. at 89-90. The rati onal -relati onship test has been applied to claimed violations of various fundamental rights, including the right to the free exercise of religi on, O’Lone , 482 U.S. 342, the right to freedom of speech, Amatel v. Reno , 156 F.3d 192 (D.C. Cir. 1998), the right to marry
, Turner , 482 U.S. 78, the right to privacy, Oliver v

. Scott , 276 F.3d 736 ( 5th

Cir. 2002), the right to meaningful access to the courts, Lewis v. Casey
, 518 U.S. 343 (1996 ), and the right to be free from rac ial discrimination, Morrison v

. Garraghty
, 239 F.3d 648 (4th Cir. 2001).

Incontras t to the hig

hly defere ntial rat ional-re lationship test, RLUIP A requir

es court s to apply

strict scrutiny

to all substantial burdens u

pon th e fre e exer cise of religion. Madison eloquent

ly e xplained th e drama

tic changes imposed by RL UIPA:

Under RLUI PA, prison

regula tions that s

ubsta nti ally burden religious belief, including those tha t are g eneral ly 14 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

applica ble and fac ially

neutral
, are judged under a strict scrutiny stan dard, requiring prison officials, rather than the inmate, to bear the burden of proof that the regulation furthers a compelling penological interest and is the least restrictive means of

satisfy ing this in

terest. 4 2 U.S.C. § 2000cc- 1. As is we ll known fr om th e histor y of constitutional law, the change t hat R LUI PA imposes i s re vo lu ti on ar y, switching from a s cheme of defe rence t o one of presumptive unconstitutiona lit y. See Smith , 494 U.S. at 888. Inste ad of ra

tional, the penolog ical inte

rest under RLUIPA mus t be of

the hi gh est order, see Wisc onsin v. Yoder , 406 U.S. 2 05, 215 (1 972); Jenkins v. Angelone
, 948 F. Supp. 543, 546 (E .D. Va . 1996); instead of focusing on the prison inmate’s ability to find other avenues to exercise his belief, a court is r equired to focus on the prison administrator’s choice among regulatory

options
, se e 42 U.S.C. § 2000cc-1(a)(2); instead of placi ng the b urden of proof on a

n in mat e, RLUI PA throws the burden on p rison officials, see id. § 2000cc-1(a). It is hard to imagine a g reater reversal of fortunes for the rel igio us rights of inmates than the one involved in the passage of RLU IPA. 240 F. Supp. 2d at 575.

RLUI PA’s enhanced protection for religious ri g hts might not violate

the First Amendment requirement of neutral ity i f Congre ss h ad ena cted RLUI PA based upon evidence that religious rights are at

great er risk of deprivation in the prison system th an ot her fund

amental r ights. The exemption

in Amos
, for exa mple, had the effect of maintaining congressionalneutral ity

toward religion because “Title VI I’s prohibitions on hiring or firingon the basis of religion had a much greater

negative impact on the purpose and mission of

a religious organization in comparison to the effect of the prohibitions on a secular institution.” Madison , 240 F. Supp. 2d at 577 n.9. In cont

rast , Cong

ressenacted RL

UI PA “[i ]n the absence of any

proof tha t religi ous righ

ts are mor e at riskNos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 15

inprison than other fundamental rights, with theknowl edge that strict scrutiny is not required to prote ct the religious belief of prisoners under the Free Exercise Clause,” Madison
, 240 F. Supp. 2d

at 576, and with the knowledge that prisoners alre ady have a remedy

for violations of their constitutional rights. “Such an action, wh ile labeled a neutral ‘accommodation,’ is not in fact neutral at all, and t he Court is notallowed t

o defer to the mer

e chara cterizat ion of RL UIPA

as such.” Id. at 576; see also Ghashiyah , 250 F. Supp. 2d at 1027 (“The e ffect [of

RLUI PA], there fore, is to prov ide greater protection

to religiously motivated c onduct than other conscientious conduct.”).

Alth ough the suppor

ters of RL

UIPA state d that “so me institutions restrict religious liberty in egregious and unnecessary

ways,” see Statemen

ts o f Se nators Hatch and Ke nn ed y, 146 Cong. Rec. S7774-01, S7775 (2000), R LUI PA supporters offere d no evide nce that inmate s’ o ther constitutional rights “ are not s imi larly threa tened by prison administrators,” Madison , 240 F. Supp. 2d at 575. An d if prisonofficials in fact “restrict religious liberty [or ot he r f u ndamental rights] in egregious and arbitrar y way s,” prisoners al re ad y h ave aremedy unde r Turner and O’Lone
, whichrequire prison policies to be “legitimate and neutra l,” Turner , 482 U.S. at 90, and which held that strict scrutiny is notne ce ss ar y t o protect the relig ious rig hts of pris oners. Ghashiyah
, 250 F. Supp. 2 d at 1031 ( noting that O’Lone already provides prisoners a remedy for vio lations of

their religious rights).

Madison provides an excellent illustra tion of the effect of RLUI PA upon the

rights o f prisone

rs: Assume, for examp l e, that a prison official confiscates white supremacist literature he ld by two differe nt inmates. One inmate is a member of the A ryan Nation solely because of his fanatical belief that a secret Jewish conspiracy

exists to con

trol th e wor ld. The second 16 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

inmateholds the white supremacist literature because he is a member of the Church of Jesus Christ Christian, Aryan Nation (“CJCC”). The non-religious inmate may chall enge the confiscation as a violation of his rights to free expressio n and fre e associ ation. A c ourt would evaluat e these claims under the deferential rational relation ship test in Turner , pla ci ng a high burden of proof on the inmate and leav ing t he inmate with

corres ponding ly

dim prospe cts of suc cess. However, the religious inmate, as a member of the CJCC, may

assert a RLUI PA claim, ar g uing tha

t the conf

iscation p laces a substantial burden o n his relig ious e x ercise. The religious wh ite supremacist now has a much better chance of suc cess than the n on-relig ious white suprema cist, as pris on off

icials bear the burden of proving that the prison policy satisfiesa c ompelling interest and is the least restrictive means of satisfying the i nterest. The diff

erence in the lev el of pro te ctio n provided to each c laim lies not in the re lativ e me rits of the claims, but lies instead in t he ba sis of one claim in religious belief.

240 F. Supp. 2d at 576 (in ternal c itations om

itted). A s this

exam ple ill ustrates, the primary effect of RLUI

PA is not simply to accommodate the exercise of religion by individual prisoners, but to advan ce religion genera lly by giving religious prisoners rights superior to those of non r eligious prisoners. “When Congress acts to lift the limitations on one right while ignoring

all others, it

abandons neutrality towa rds theserights, placing its power behind one sy stem of b e lief. When the one sy

stem of be lief prot

e c ted is religious belief, Cong r ess has viola

ted the ba sic requ

irement o f neutra

lity embodied in the Establishment Clause.” Madison , 240 F. Supp. 2d at 577 (internal citations omitted).

In a ddition to its message of endorsement, RLUI PA als o has the effect of encouraging prisoners to become religio us in order to enjoy gr

eater rights. The Supreme Court hasNos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 17

co nsidered

a statute ’s effe ct on nonr eligiou s persons

a s par t of the effect analysis. See Texas Monthly, Inc. v. Bullock
, 489 U.S. 1, 9 (1989) (plurality opinion) (holding tha t government may notcompel nonadhere

nts to support religious practices). One effect of

RLUI PA is to induce prisoners to ado pt or f eign religious belief in order to receive the statute’ s be nefits. As Ghashiyah explained: [W]hen inmates see that the rules do not ap pl y with the

same force t

o the rel igious a s to the ag nost ic or athei st

. . . , non-religious prisoners will know what they have to do so that they , too, can

benefit from the s ofter ru

les: become religious. Considering the meager resour ces and opportunities available to them inside p riso n walls, the compulsion t o become religious—created b y govern ment— will indee d be st rong. 250 F. Supp. 2d at 1029.

Inevaluating a statute’s effect, a c o urt must ask “whether

anobjective observer, a cq uainted with the text, legislative his to ry, and imple

mentation of the enactment w

ould view it

as state endorsement of religion.” Adland v. Russ , 307 F.3d 471, 484 (6th Cir. 2002) (internal quotation marks omitted). RLUI PA’s le gi sl at iv e h is to ry, as previously discussed, offe rs no evidence that religious rights are at any greater dange

r of deprivation

inprison tha

n are other funda

mental ri ghts. As

to implementation, RLUI

PA’s inevitable ef

fect isto give greater freedom to religious inmates, and to induce non religious inmates to adopt a religion. An objective o bserve r viewing RLUI PA’s text, legislative history, a nd effect would therefore conclude that t

he Act conveys a me ssage of religious endorse ment.

Plaintiff s, howeve r, point to the following statement from Amos : “For a l a w to have forbidden ‘effects’ under Lemon , it must be fair tosay that the governm ent itself has advanced religion through its own acti vities and influence.” 483 U.S. 18 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

at 337 (emphasis in original). Amos held that the exemption fromTit le V II

did not run afoul of the effect prong of Lemon b ecause the government was not an active participa nt; th e statute simply allowed relig ious organizations to pursue their religious objectives. Id . Plaintiff s contend that RL UIPA has

anident ical e ffect. RLUIPA, acc ordin g t o plai ntiffs, “does notitsel f pro mote or sub sidize a religious belief or message; it merely fr ees religious groups

and indivi duals to practice as they otherwis e would in

the abse nce of c ertain si g nifican t state-imposed burdens.”

The problem w

ith plain tiffs’ argument is that the exemption fromTitle VI

I th at was at issue in Amos simply restored the level of free dom that re ligious in stit utions enjoyed bef

ore Congre ss enacted Title VII . By cr eating the exemp tion, Congre ss argua

bly acted to

maintain neutralit

y tow ard religion. RLUI

PA, on the other ha nd, does not lift any affirmative burden o n the exer cise of r eli gion. I nstead, by

en actin g RLUI

PA, Congress itself has advanced relig ion by givingreligious prisoners a preferre d status in the p r ison

co mm un it y.
3. The entanglement between government and religion created by RLUIPA

The third prong o f the Lemon test prohibits an excessive entanglement

of government with religion. Lemon , 403 U.S. at 613. Ghashiyah held that RLUI PA ’s nebulous definition of religious exercise, see 42 U.S.C. § 2000cc-5(7)(A), creates

anexcessive

entang lement “b ecause

it force s the state s to become i nvolved with, knowledgeable about, and excee dingl y sensitive to the varied religious practicesof their i nmates. It also forces the federal courts to become involved in prison administration, an area that the Supr eme Court has admonished judges to avoid.” 250 F. Supp. 2d at 1031.

Alth ough Ghashiyah ’s reas oning isplausible, we question whether RLUI PA requires an

y gr eater interaction betweenNos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 19

government

officials and religion than ex ists under present law. Assume, for example, that a prisoner who is a member of a nontraditional “religion” claims a First Amendment rig ht to a special diet that is required by the pr isoner’s “relig ious” beliefs. Befor

e reaching the

underly ing con stitutiona

l claim,

a court must first determine (1) whether the “rel i gious” beliefs

are sincerely he ld, and (2) wheth er the prisoner’s beliefs “constitu te a relig ion with in t he meani ng of the

[F]irst [A]mendment.” Africa v. Pe nnsylvan ia , 662 F.2d 1025, 1029- 31 (3dCir. 1981) (holding that a prisoner’s belief system wa s not a religion for purposes of First Amendment analysis). Deciding whethe r a s pecific act or practice qualifies as “rel i giou s exercise ” under R LUI PA argu ably creates n o g reater entanglement than dec iding whether a particular belief sy stem co nstitutes a

“relig ion” unde

r the First Amendmen

t. However, because we have concluded

tha t RLUI PA has the impermissible effect of advancing r eligion,

we have no need to fu

rther explore th e qu estion of whether RLUI PA violate s Lemon ’s ent anglem ent pr ong.
C. The unpersuasive nature of the ca ses upholding RLUIPA and RFRA

The cases that have upheld RLUI PA and RFR A agai

nst constitutional attack have essentia lly relied on the rationale of Amos

. Se e, e.g.,Charles v. Verhagen , No. 02-3572, slip op. at 12-13 (7th Cir. Oct. 30, 2003); Mayweath ers v. Ne wla nd
, 314 F.3d 1 062 , 1068-69 (9th Cir. 2002). We believe that suchreliance is misplaced. As we have alrea dy discussed, the exemption in Amos wa s a rg ua bl y n ecessar y to avoid an EstablishmentClauseviolation. Amos , 483 U.S. at 336; see also id. at 344 (B r ennan, J., concurr ing). B ut RLU

IPA extends protection

to religious exercise in prison far bey ond what is requir ed by the Estab li shme nt Clause; it imposes strict scrutiny where

the Establish

ment Claus e requir

es only

a rat i onal-relationship review. See Turner , 482 U.S. 78; O’Lone , 482 U.S. 342. 20 Cutter et al. v. Wilkinson et al. Nos. 02-3270/3299/3301

The exemption in Amos , moreover, was a narrowly tailored solution to the potential Establishment Clause problem created by Title VI

I’s ap plication

to relig ious institu

tions. RLUI PA, on the other hand, does not address a particular burden on religious exerc ise, but instead exempts religious prisoners from many

gener ally applica ble prison regu

lations. See Hamilton, 1 U. Pa . J. Con st. L . at 1 3-14 . We believe that Professor Hamilton’ s comment t

hat “[c]omp aring R

FRA to Amos is like comparing apples to ora nge s” is equa

lly applicable when comparing RL UIPA to Amos

. See id. This

same point was expressed somewhat differently in Madison :
The difference between A mos and RL UIPA is, like al l E s tablishmentClause cases, a question of degree

. However, the difference in degre e between the two is substantia l, and congres sio nal neutrality is the line that divides the m. When Congress has acted to impose an affirm a tive burden on religion, it is necessary for Congr ess to remove that burden in order to retain a position of neutrality towar ds religious belief. However, when Congress acts to provide religious inmates, and only religious inmates, with a l e vel of constitutional protection

that the Supreme C o urt has deemed unnecessary

to pro tect r eligious rights, it has gone beyond protecting religion

to affirmatively a

dvancingit.

240 F. Supp. 2d at 577 n.9; see also Ghashiyah , 250 F. Supp. 2d at 102 8-29 ( noti ng the fundamen tal distinction between the exemption in Amos and RLUI PA).

Theseauthoriti es have convinced us that reliance on the rationa le of Amos to sustain the constitutionality of RLUI PA is misplaced. We therefore conclude that the cases supporting RLUI PA are unpersuasive.Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson et al. 21

III. CONCL USION

For all the reasons set

forth above, we hold that 42 U.S.C. § 2000cc- 1 violate s the Esta blis hmen t Clause. Because of this determination, we have no need to considerthe alternative groun ds raised by def endants in the ir constitutional challenge to RLUI PA. We therefore REVERSE the district

court’s denial of defendants’ motions to dismiss and REMAND the c ase for fur ther p roceed ings consistent with this opinion.