1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0397P (6th Cir.)

File Name: 03a0397p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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No. 02-3270

JON B. CUTTER; J. LEE

HAMPTON,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

v.

REGINALD WILKINSON;

DAVID SCHWARTZ; NICHOLAS

G. MENEDEZ; L. C. COVAL; K.

L. BROWN; GEORGE D.

ALEXANDER; DIANNE

WALKER; JIM ERWIN; RON

CARNEIN; RUDY PRINGLE;

WALTER LOWERY,

Defendants-Appellants.

No. 02-3299

JOHN MILLER, et al.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

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Nos. 02-3270/

3299/3301

2 Cutter et al. v. Wilkinson

et al.

Nos. 02-3270/3299/3301

v.

REGINALD WILKINSON;

DAVID SCHWARTZ; TERRY

COLLINS; CHERYL HART;

CHARLES R. GRIFFIN;

CHARLES GRIFFIN, Chaplain,

Defendants-Appellants.

No. 02-3301

JOHN W. GERHARDT,

Plaintiff-Appellee,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

v.

ALAN LAZAROFF, Warden;

KENNETH BYERS; DON

WILSON; MARY HENDERSON;

SHERRY WILLIAMSON;

KRISTINA HACKETT; STEVEN

WEINGART; RON CLIFTON;

ROBERT ENGLUND; CHARLES

CONRAD; STACHA DOTY;

JACK TAYLOR; WILLIAM

BLANEY; CAROL MARTIN;

JUNE COLEMAN; DAVE

MORRIS; VANCE YORK;

SUSAN COOLIE; STEPHANIE

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

et al.

3

*

The Honorable Arthur J. Tarnow, United States District Judge for

the Eastern District of Michigan, sitting by designation.

WALKER; RACHEL

HETTINGER; KENNETH E.

MCDONALD,

Defendants-Appellants.

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 97-00382; 98-00275; 95-00517—James L. Graham,

Edmund A. Sargus, Jr., District Judges.

Argued: September 10, 2003

Decided and Filed: November 7, 2003 

Before: MOORE and GILMAN, Circuit Judges;

TARNOW, District Judge.*

_________________

COUNSEL

ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY

GENERAL, Columbus, Ohio, for Appellants. David A.

Goldberger, OHIO STATE UNIVERSITY COLLEGE OF

LAW - CLINICAL PROGRAMS, Columbus, Ohio, Michael

S. Raab, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees. ON BRIEF: Todd R.

Marti, OFFICE OF THE ATTORNEY GENERAL,

Columbus, Ohio, for Appellants. David A. Goldberger,

OHIO STATE UNIVERSITY COLLEGE OF LAW -

CLINICALPROGRAMS, Columbus, Ohio, MichaelS.Raab,

Mark B. Stern, UNITED STATES DEPARTMENT OF

4 Cutter et al. v. Wilkinson

et al.

Nos. 02-3270/3299/3301

JUSTICE, Washington, D.C., for Appellees. Marc D. Stern,

AMERICAN JEWISH CONGRESS, STEPHEN WISE

CONGRESS HOUSE, New York, New York, for Amici

Curiae.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Plaintiffs in

these three consolidated cases are Ohio prisoners who

contend, among other claims, that various Ohio corrections

officials have violated the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc–2000cc-5. The defendant officials filed motions to

dismiss the RLUIPA claims, challenging the constitutionality

of 42 U.S.C. § 2000cc-1, the section of the Act that applies to

institutionalized persons. Their motions were denied by the

district court. In this interlocutory appeal, defendants contend

that RLUIPA (1) exceeds Congress’s powers under both the

Spending and Commerce Clauses, (2) violates states’ rights

under the Tenth Amendment, and (3) improperly advances

religion in violation of the Establishment Clause of the First

Amendment. For the reasons set forth below, we agree that

the portion of RLUIPA that applies to institutionalized

persons—specifically, 42 U.S.C. § 2000cc-1—violates the

Establishment Clause. We therefore REVERSE the district

court’s denial of defendants’ motions to dismiss and

REMAND the case for further proceedings consistent with

this opinion.

I. BACKGROUND

A. Factual background

Because this appeal involves a facial challenge to RLUIPA,

the facts of the individual cases are not particularly relevant.
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et al.

5

The prisoners in all three cases generally allege that officials

with the Ohio Department of Rehabilitation and Corrections

(ODRC) violated RLUIPA by refusing to accommodate the

prisoners’ religious beliefs and practices. Defendants, on the

other hand, contend that RLUIPA has allowed inmate gangs

to claim “‘religious’ status in order to insulate their illicit

activities from scrutiny.”

What is relevant to this case is the history and substance of

RLUIPA. In 1990, the Supreme Court held that the United

States Constitution does not require that government have a

compelling state interest in order to enact a law of general

applicability that incidentally burdens the exercise of religion.

Employment Div., Dept. of Human Res. v. Smith, 494 U.S.

872 (1990). Congress responded in 1993 by enacting the

Religious Freedom Restoration Act (RFRA), 42 U.S.C.

§§ 2000bb—2000bb-4. RFRA required that any

governmental attempt to “substantially burden” the exercise

of religion must be the least restrictive means of furthering a

compelling state interest. 42 U.S.C. § 2000bb-1(b). The

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).

Congress reacted to Boerne by passing RLUIPA in 2000.

RLUIPA has the same substantive standard as RFRA. It

provides, in relevant part, that “[n]o government shall impose

a substantial burden on the religious exercise of a person

residing in or confined to an institution” unless the burden “is

in furtherance of a compelling governmental interest” and “is

the least restrictive means” of furthering that interest. 42

U.S.C. § 2000cc-1(a). The Act defines “religious exercise”

as “any exercise of religion, whether or not compelled by, or

central to, a system of religious belief.” 42 U.S.C. § 2000-

cc5(7)(A). RLUIPA’s requirement of strict scrutiny stands in

sharp contrast to the Supreme Court’s previous decisions,

which have held that the courts should apply a rational6 Cutter et al. v. Wilkinson

et al.

Nos. 02-3270/3299/3301

relationship review to restrictions upon inmates’ fundamental

rights. See Turner v. Safley, 482 U.S. 78 (1987) (applying the

rational-relationship test to prison rules regulating prisoner

correspondence and marriage); O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) (applying the rational-relationship test to

prison rules regulating prisoners’ religious exercise).

Congress enacted RLUIPA pursuant to its powers under the

Spending Clause, U.S. Const. art. I, § 8, cl. 1, and the

Commerce Clause, U.S. Const. art. I, § 8, cl. 3. RLUIPA

applies where “the substantial burden [on religious exercise]

is imposed in a program or activity that receives Federal

financial assistance.” 42 U.S.C. § 2000cc-1(b)(1). The Act

is also applicable where “the substantial burden affects, or

removal of that substantial burden would affect, commerce

with foreign nations, among the several States, or with Indian

tribes.” 42 U.S.C. § 2000cc-1(b)(2).

RLUIPA creates a private right of action. Any person may

“assert a violation of this chapter as a claim or defense in a

judicial proceeding” and may obtain “appropriate relief

against a 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).

RLUIPA’s congressional sponsors specifically noted that

they expected federal courts to respect the decisions of prison

officials as to what restrictions on the exercise of religion are

necessary in the prison context. A joint statement to the

Senate expressed the sponsors’ belief that federal courts

would “continue the tradition of giving due deference to the

experience and expertise of prison and jail administrators in

establishing necessary regulations and procedures to maintain

good order, security, and discipline, consistent with

considerations of cost and limited resources.” Statements of

Senators Hatch and Kennedy, 146 Cong. Rec. S7774-01,

S7775 (2000).
Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson

et al.

7

B. Procedural background

The plaintiff prisoners brought suit against various Ohio

corrections officials based upon claims arising under the First

and Fourteenth Amendments. RLUIPA went into effect after

suit was filed, causing plaintiffs to amend their complaints to

include claims under the Act. Defendants then filed motions

to dismiss the RLUIPA claims, arguing that the Act was

unconstitutional. (All references to RLUIPA are to 42 U.S.C.

§ 2000cc-1 only, the portion of the Act that applies to

institutionalized persons.) The United States intervened to

defend the constitutionality of the Act. All three cases were

consolidated in order to adjudicate the motions to dismiss at

the same time.

On August 27, 2001, the magistrate judge filed a Report

and Recommendation, which concluded that the statute was

constitutional and recommended that the district court deny

defendants’ motions to dismiss. The district court entered an

opinion and order adopting the Report and Recommendation

on February 25, 2002. Approximately a year and a half later,

on August 4, 2003, the court certified its February 25, 2002

order for immediate appeal pursuant to 28 U.S.C. § 1292(b).

The parties then filed a joint petition for leave to appeal with

this court on August 6, 2003, within the 10-day time limit

imposed by the statute. We have previously granted the

petition for leave to appeal.

II. ANALYSIS

A. Lineup of the courts

The Supreme Court has not yet considered the

constitutionality of RLUIPA. Justice Stevens, however, in his

concurring opinion in Boerne, concluded that RLUIPA’s

predecessor, RFRA, violated the Establishment Clause: 

8 Cutter et al. v. Wilkinson

et al.

Nos. 02-3270/3299/3301

In my opinion, the Religious Freedom Restoration Act of

1993 (RFRA) is a “law respecting an establishment of

religion” that violates the First Amendment to the

Constitution. . . . [T]he statute has provided [religious

organizations] with a legal weapon that no atheist or

agnostic can obtain. This governmental preference for

religion, as opposed to irreligion, is forbidden by the

First Amendment.

Boerne, 521 U.S. at 536-37 (1997) (Stevens, J., concurring).

Two circuits, without reference to Justice Stevens’s

concurring opinion, have come to the opposite conclusion

regarding the constitutionality of RLUIPA. See Charles v.

Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003);

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).

Furthermore, five circuits, including the Seventh and Ninth,

have concluded that the identical operative language in RFRA

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 1018, 1022 (7th Cir. 1996), vacated on other grounds,

521 U.S. 1114 (1997); 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 district court opinions, in addition to

the one below, have also concluded that RLUIPA is

constitutional. See Johnson v. Martin, 223 F. Supp. 2d 820

(W.D. Mich. 2002); Charles v. Verhagen, 220 F. Supp. 2d

955 (W.D. Wis. 2002), aff’d, No. 02-3572 (7th Cir. Oct. 30,

2003).

Against this apparent juggernaut of circuit and district court

opinions stand two district court decisions that reach the

opposite conclusion. 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 Corrections, 250 F. Supp. 2d

1016 (E.D. Wis. 2003) (Adelman, J.), overruled by Charles
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et al.

9

v. Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003). Both are

remarkably well-worded and persuasive opinions that clearly

set forth the history of RLUIPA, the analytical basis for

concluding that RLUIPA violates the Establishment Clause,

and the unpersuasive nature of the contrary opinions. Indeed,

our own analysis can (and will) be considerably streamlined

by repeated references to Madison and Ghashiyah.

(Inexplicably, the Seventh Circuit in Charles makes no

reference to either of these district court opinions.)

B. RLUIPA violates the Establishment Clause because

it favors religious rights over other fundamental

rights without any showing that religious rights are at

any greater risk of deprivation

The Establishment Clause of the First Amendment to the

U.S. Constitution states: “Congress shall make no law

respecting an establishment of religion.” Neutrality is the

fundamental requirement of the Establishment Clause, which

prohibits government from either endorsing a particular

religion or promoting religion generally. Bd. of Educ. of

Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703

(1994) (“[A] principle at the heart of the Establishment

Clause [is] that government should not prefer one religion to

another, or religion to irreligion.”); see also Ghashiyah, 250

F. Supp. 2d at 1021 (collecting cases that discuss the

neutrality requirement).

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme

Court articulated a three-part test to determine whether a

statute violates the Establishment Clause. A statute (1) “must

have a secular legislative purpose,” (2) “its principal or

primary effect must be one that neither advances nor inhibits

religion,” and (3) it must not create “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 Agostini v. Felton, 521

U.S. 203, 232-35 (1997), in the context of considering the

10 Cutter et al. v. Wilkinson

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Nos. 02-3270/3299/3301

constitutionality of government aid to parochial schools,

where the Court proceeded to analyze entanglement under the

effect prong rather than as a separate factor. Based upon our

precedent of applying the Lemon test other than in aid-toeducation cases, however,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 decide

that a Kentucky legislative resolution directing the state to

move a Ten Commandments monument to a permanent site

on the state capitol grounds violated the Establishment

Clause).

1. The purpose of RLUIPA

“The purpose prong of the Lemon test asks whether

government’s actual purpose is to endorse or disapprove of

religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987)

(quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984)

(O’Connor, J., concurring)). Lemon’s requirement of a

secular purpose “does not mean that the law’s purpose must

be unrelated to religion . . . .” Corp. of the Presiding Bishop

of the Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 335 (1987). Instead, the purpose prong “aims

at preventing the relevant governmental decisionmaker . . .

from abandoning neutrality and acting with the intent of

promoting a particular point of view in religious matters.” Id.

In Amos, the Supreme Court considered whether Congress

had violated the Establishment Clause by exempting religious

organizations from Title VII’s prohibition against religious

discrimination in employment. Amos held that “it is a

permissible legislative purpose to alleviate significant

governmental interference with the ability of religious

organizations to define and carry out their religious

missions.” Id. In the present case, plaintiffs argue that

RLUIPA has a virtually identical purpose: to alleviate

significant interference by prison officials with the ability of

prisoners to exercise their religious beliefs. But material
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differences exist between the application of RLUIPA in a

prison setting and the Title VII exemption at issue in Amos.

One key difference is that the exemption in Amos was

arguably necessary to avoid a violation of the Establishment

Clause. Without the exemption, Title VII would have

required courts to interfere with the internal workings of

religious organizations, and fear of liability might have

affected the way religious organizations carried out their

missions. Id. at 336; see also id. at 344 (Brennan, J.,

concurring) (“A case-by-case analysis for all activities

therefore would both produce excessive government

entanglement with religion and create the danger of chilling

religious activity.”). Enacting RLUIPA, on the other hand,

was not even arguably necessary to avoid a violation of the

Establishment Clause. The Supreme Court had previously

held that government interference with prisoners’

fundamental rights is not subject to strict scrutiny, as

RLUIPA requires, but only to a rational-relationship review.

See Turner, 482 U.S. 78; O’Lone, 482 U.S. 342.

Another key difference between RLUIPA and the

exemption in Amos is that RLUIPA sweeps much more

broadly. As one commentator noted about RFRA, the

predecessor to RLUIPA that has identical substantive

provisions:

Comparing RFRA to Amos is like comparing apples to

oranges. RFRA, unlike Amos, does not exempt religion

from regulation for the purpose of avoiding an

Establishment Clause violation. Rather, RFRA institutes

a standard of review in every case which implicates

religious conduct. . . . Amos did not involve a law that

exempted religion from every law in the country. Rather,

it permitted the exemption of religious employers from

a particular requirement in prescribed circumstances.

The law in Amos lacked RFRA’s vast scope; therefore,

12 Cutter et al. v. Wilkinson

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Amos cannot dictate 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 RLUIPA suggests that its actual

purpose is not to accommodate religion by removing a

particular obstacle to religious exercise, but “to advance

religion in prisons relative to other constitutionally protected

conduct.” Ghashiyah, 250 F. Supp. 2d at 1024. If that is

indeed the true purpose of RLUIPA, then Congress has

“abandoned neutrality and acted with the purpose of

furthering religion,” in violation of the Establishment

Clause’s fundamental command of governmental neutrality.

Id. at 1025.

Resolution of the question of whether RLUIPA has the

proper purpose of alleviating government interference with

religious exercise or the prohibited purpose of advancing

religion in prisons is not necessary to our ultimate decision

regarding the Act’s constitutionality. Even if the purpose of

RLUIPA fits within the rule of Amos, RLUIPA is still

unconstitutional because it has the primary effect of

advancing religion. See Amos, 483 U.S. at 334-35 (“At some

point, accommodation may devolve into an unlawfulfostering

of religion . . . .”) (internal quotation marks omitted).

2. The effect of RLUIPA

“The effect prong [of the Lemon test] asks whether,

irrespective of government’s actual purpose, the practice

under review in fact conveys a message of endorsement or

disapproval.” Lynch v. Donnelly, 465 U.S. 668, 690 (1984)

(O’Connor, J., concurring). In evaluating this prong, the two

most relevant factors are (1) whether a particular government

action benefits both secular and religious entities, and
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13

(2) whether the action will induce religious exercise, rather

than only protecting it. See Ghashiyah, 250 F. Supp. 2d at

1025-26 (collecting authorities that have used these factors in

Establishment Clause cases). Applying these factors to the

present case demonstrates that RLUIPA has the effect of

impermissiblyadvancing religion by giving greater protection

to religious rights than to other constitutionally protected

rights.

Prior to RLUIPA, restrictions imposed by prison officials

upon inmates’ fundamental rights were subject to a rationalrelationship 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) whether inmates

have alternative means of exercising the right in question;

(3) the impact of a requested accommodation of the right

upon guards and other inmates; and (4) the absence of

alternatives to the regulation. Turner, 482 U.S. at 89-90. The

rational-relationship test has been applied to claimed

violations of various fundamental rights, including the right

to the free exercise of religion, 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 racial

discrimination, Morrison v.Garraghty, 239 F.3d 648 (4th Cir.

2001). 

In contrast to the highly deferential rational-relationship

test, RLUIPA requires courts to apply strict scrutiny to all

substantial burdens upon the free exercise of religion.

Madison eloquently explained the dramatic changes imposed

by RLUIPA:

Under RLUIPA, prison regulations that substantially

burden religious belief, including those that are generally

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applicable and facially neutral, are judged under a strict

scrutiny standard, 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 satisfying this interest. 42 U.S.C.

§ 2000cc-1. As is well known from the history of

constitutional law, the change that RLUIPA imposes is

revolutionary, switching from a scheme of deference to

one of presumptive unconstitutionality. See Smith, 494

U.S. at 888. Instead of rational, the penological interest

under RLUIPA must be of the highest order, see

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); 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 required to

focus on the prison administrator’s choice among

regulatory options, see 42 U.S.C. § 2000cc-1(a)(2);

instead of placing the burden of proof on an inmate,

RLUIPA throws the burden on prison officials, see id.

§ 2000cc-1(a). It is hard to imagine a greater reversal of

fortunes for the religious rights of inmates than the one

involved in the passage of RLUIPA.

240 F. Supp. 2d at 575. 

RLUIPA’s enhanced protection for religious rights might

not violate the First Amendment requirement of neutrality if

Congress had enacted RLUIPA based upon evidence that

religious rights are at greater risk of deprivation in the prison

system than other fundamental rights. The exemption in

Amos, for example, had the effect of maintaining

congressional neutrality toward religion because “Title VII’s

prohibitions on hiring or firing on 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 contrast, Congress enacted RLUIPA “[i]n

the absence of any proof that religious rights are more at risk
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in prison than other fundamental rights, with the knowledge

that strict scrutiny is not required to protect the religious

belief of prisoners under the Free Exercise Clause,” Madison,

240 F. Supp. 2d at 576, and with the knowledge that prisoners

already have a remedy for violations of their constitutional

rights. “Such an action, while labeled a neutral

‘accommodation,’ is not in fact neutral at all, and the Court is

not allowed to defer to the mere characterization of RLUIPA

as such.” Id. at 576; see also Ghashiyah, 250 F. Supp. 2d at

1027 (“The effect [of RLUIPA], therefore, is to provide

greater protection to religiously motivated conduct than other

conscientious conduct.”).

Although the supporters of RLUIPA stated that “some

institutions restrict religious liberty in egregious and

unnecessary ways,” see Statements of Senators Hatch and

Kennedy, 146 Cong. Rec. S7774-01, S7775 (2000), RLUIPA

supporters offered no evidence that inmates’ other

constitutional rights “are not similarly threatened by prison

administrators,” Madison, 240 F. Supp. 2d at 575. And if

prison officials in fact “restrict religious liberty [or other

fundamental rights] in egregious and arbitrary ways,”

prisoners already have a remedy under Turner and O’Lone,

which require prison policies to be “legitimate and neutral,”

Turner, 482 U.S. at 90, and which held that strict scrutiny is

not necessary to protect the religious rights of prisoners.

Ghashiyah, 250 F. Supp. 2d at 1031 (noting that O’Lone

already provides prisoners a remedy for violations of their

religious rights).

Madison provides an excellent illustration of the effect of

RLUIPA upon the rights of prisoners:

Assume, for example, that a prison official confiscates

white supremacist literature held by two different

inmates. One inmate is a member of the Aryan Nation

solely because of his fanatical belief that a secret Jewish

conspiracy exists to control the world. The second

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inmate holds the white supremacist literature because he

is a member of the Church of Jesus Christ Christian,

Aryan Nation (“CJCC”). The non-religious inmate may

challenge the confiscation as a violation of his rights to

free expression and free association. A court would

evaluate these claims under the deferential rational

relationship test in Turner, placing a high burden of

proof on the inmate and leaving the inmate with

correspondingly dim prospects of success. However, the

religious inmate, as a member of the CJCC, may assert a

RLUIPA claim, arguing that the confiscation places a

substantial burden on his religious exercise. The

religious white supremacist now has a much better

chance of success than the non-religious white

supremacist, as prison officials bear the burden of

proving that the prison policy satisfies a compelling

interest and is the least restrictive means of satisfying the

interest. The difference in the level of protection

provided to each claim lies not in the relative merits of

the claims, but lies instead in the basis of one claim in

religious belief.

240 F. Supp. 2d at 576 (internal citations omitted). As this

example illustrates, the primary effect of RLUIPA is not

simply to accommodate the exercise of religion by individual

prisoners, but to advance religion generally by giving

religious prisoners rights superior to those of nonreligious

prisoners. “When Congress acts to lift the limitations on one

right while ignoring all others, it abandons neutrality towards

these rights, placing its power behind one system of belief.

When the one system of belief protected is religious belief,

Congress has violated the basic requirement of neutrality

embodied in the Establishment Clause.” Madison, 240 F.

Supp. 2d at 577 (internal citations omitted).

In addition to its message of endorsement, RLUIPA also

has the effect of encouraging prisoners to become religious in

order to enjoy greater rights. The Supreme Court has
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17

considered a statute’s effect on nonreligious persons as part

of the effect analysis. See Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 9 (1989) (plurality opinion) (holding that government

may not compel nonadherents to support religious practices).

One effect of RLUIPA is to induce prisoners to adopt or feign

religious belief in order to receive the statute’s benefits. As

Ghashiyah explained:

[W]hen inmates see that the rules do not apply with the

same force to the religious as to the agnostic or atheist

. . . , non-religious prisoners will know what they have to

do so that they, too, can benefit from the softer rules:

become religious. Considering the meager resources and

opportunities available to them inside prison walls, the

compulsion to become religious—created by

government—will indeed be strong.

250 F. Supp. 2d at 1029.

In evaluating a statute’s effect, a court must ask “whether

an objective observer, acquainted with the text, legislative

history, and implementation of the enactment would view it

as state endorsement of religion.” Adland v. Russ, 307 F.3d

471, 484 (6th Cir. 2002) (internal quotation marks omitted).

RLUIPA’s legislative history, as previously discussed, offers

no evidence that religious rights are at any greater danger of

deprivation in prison than are other fundamental rights. As to

implementation, RLUIPA’s inevitable effect is to give greater

freedom to religious inmates, and to induce nonreligious

inmates to adopt a religion. An objective observer viewing

RLUIPA’s text, legislative history, and effect would therefore

conclude that the Act conveys a message of religious

endorsement.

Plaintiffs, however, point to the following statement from

Amos: “For a law to have forbidden ‘effects’ under Lemon,

it must be fair to say that the government itself has advanced

religion through its own activities and influence.” 483 U.S.

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et al.

Nos. 02-3270/3299/3301

at 337 (emphasis in original). Amos held that the exemption

from Title VII did not run afoul of the effect prong of Lemon

because the government was not an active participant; the

statute simply allowed religious organizations to pursue their

religious objectives. Id. Plaintiffs contend that RLUIPA has

an identical effect. RLUIPA, according to plaintiffs, “does

not itself promote or subsidize a religious belief or message;

it merely frees religious groups and individuals to practice as

they otherwise would in the absence of certain significant

state-imposed burdens.” 

The problem with plaintiffs’ argument is that the exemption

from Title VII that was at issue in Amos simply restored the

level of freedom that religious institutions enjoyed before

Congress enacted Title VII. By creating the exemption,

Congress arguably acted to maintain neutrality toward

religion. RLUIPA, on the other hand, does not lift any

affirmative burden on the exercise of religion. Instead, by

enacting RLUIPA, Congress itself has advanced religion by

giving religious prisoners a preferred status in the prison

community.

3. The entanglement between government and religion

created by RLUIPA

The third prong of the Lemon test prohibits an excessive

entanglement of government with religion. Lemon, 403 U.S.

at 613. Ghashiyah held that RLUIPA’s nebulous definition

of religious exercise, see 42 U.S.C. § 2000cc-5(7)(A), creates

an excessive entanglement “because it forces the states to

becomeinvolved with, knowledgeable about, and exceedingly

sensitive to the varied religious practices of their inmates. It

also forces the federal courts to become involved in prison

administration, an area that the Supreme Court has

admonished judges to avoid.” 250 F. Supp. 2d at 1031.

Although Ghashiyah’s reasoning is plausible, we question

whether RLUIPA requires any greater interaction between
Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson

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19

government officials and religion than exists under present

law. Assume, for example, that a prisoner who is a member

of a nontraditional “religion” claims a First Amendment right

to a special diet that is required by the prisoner’s “religious”

beliefs. Before reaching the underlying constitutional claim,

a court must first determine (1) whether the “religious” beliefs

are sincerely held, and (2) whether the prisoner’s beliefs

“constitute a religion within the meaning of the [F]irst

[A]mendment.” Africa v. Pennsylvania, 662 F.2d 1025,

1029-31 (3d Cir. 1981) (holding that a prisoner’s belief

system was not a religion for purposes of First Amendment

analysis). Deciding whether a specific act or practice

qualifies as “religious exercise” under RLUIPA arguably

creates no greater entanglement than deciding whether a

particular belief systemconstitutes a “religion” under the First

Amendment. However, because we have concluded that

RLUIPA has the impermissible effect of advancing religion,

we have no need to further explore the question of whether

RLUIPA violates Lemon’s entanglement prong.

C. The unpersuasive nature of the cases upholding

RLUIPA and RFRA

The cases that have upheld RLUIPA and RFRA against

constitutional attack have essentially relied on the rationale of

Amos. See, e.g.,Charles v. Verhagen, No. 02-3572, slip op.

at 12-13 (7th Cir. Oct. 30, 2003); Mayweathers v. Newland,

314 F.3d 1062, 1068-69 (9th Cir. 2002). We believe that

such reliance is misplaced. As we have already discussed, the

exemption in Amos was arguably necessary to avoid an

Establishment Clause violation. Amos, 483 U.S. at 336; see

also id. at 344 (Brennan, J., concurring). But RLUIPA

extends protection to religious exercise in prison far beyond

what is required by the Establishment Clause; it imposes

strict scrutiny where the Establishment Clause requires only

a rational-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 VII’s application to religious institutions.

RLUIPA, on the other hand, does not address a particular

burden on religious exercise, but instead exempts religious

prisoners from many generally applicable prison regulations.

See Hamilton, 1 U. Pa. J. Const. L. at 13-14. We believe that

Professor Hamilton’s comment that “[c]omparing RFRA to

Amos is like comparing apples to oranges” is equally

applicable when comparing RLUIPA to Amos. See id. This

same point was expressed somewhat differently in Madison:

The difference between Amos and RLUIPA is, like all

Establishment Clause cases, a question of degree.

However, the difference in degree between the two is

substantial, and congressional neutrality is the line that

divides them. When Congress has acted to impose an

affirmative burden on religion, it is necessary for

Congress to remove that burden in order to retain a

position of neutrality towards religious belief. However,

when Congress acts to provide religious inmates, and

only religious inmates, with a level of constitutional

protection that the Supreme Court has deemed

unnecessary to protect religious rights, it has gone

beyond protecting religion to affirmatively advancing it.

240 F. Supp. 2d at 577 n.9; see also Ghashiyah, 250 F. Supp.

2d at 1028-29 (noting the fundamental distinction between the

exemption in Amos and RLUIPA).

These authorities have convinced us that reliance on the

rationale of Amos to sustain the constitutionality of RLUIPA

is misplaced. We therefore conclude that the cases supporting

RLUIPA are unpersuasive.
Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson

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21

III. CONCLUSION

For all the reasons set forth above, we hold that 42 U.S.C.

§ 2000cc-1 violates the Establishment Clause. Because of

this determination, we have no need to consider the

alternative grounds raised by defendants in their

constitutional challenge to RLUIPA. We therefore

REVERSE the district court’s denial of defendants’ motions

to dismiss and REMAND the case for further proceedings

consistent with this opinion.