Cutter and the Preferred Position of the Free Exercise Clause

INTRODUCTION The Free Exercise Clause has been on life support for a number of years. The Supreme Court's 1 990 decision in Employment Division v. Smith held that the Clause did not prevent enforcement of generally applicable laws that incidentally burdened religious conduct.1 Legislatures were still prevented from singling out religious beliefs or practices for invidious discrimination, but those results could be reached under either the Free Speech or Equal Protection Clauses.2 Indeed, the greatest victories for religion in recent years came when the Court included religious speech and activities under the umbrella of free speech protections.3 Under the circumstances, it is not surprising that leading scholars suggested that the Free Exercise Clause had become "redundant."4 For Jay Sekulow, the attorney who engineered the victories for religious groups by using free speech principles, freedom of religion was not just redundant, but was a topic to be avoided. As Sekulow explained, "The first thing you always have to do is frame the issue, and I took a lot of heat from people on my side, who thought I was abandoning the religion clauses of the First Amendment. . . . But I wanted to win . . . ."5 In 2005, this all changed with the Supreme Court's unanimous decision in Cutter v. Wilkinson.6 In Cutter, the Court upheld, against an Establishment Clause challenge, a federal law that prevented state prison officials from burdening an inmate' s religious expression unless the burden furthered "a compelling governmental interest," and did so by "the least restrictive means."7 The Court explicitly said that under this law, inmates could gather for religious exercises even though they could not gather for political meetings.8 The Court reached its conclusion despite opposition to the law by correctional officials,9 a group to which it typically defers.10 Under Cutter, religion has achieved a special status it has not enjoyed in years, and this result can be explained only by the Free Exercise Clause. The Court in Cutter did not rely on any grant of power to Congress - it resolved only the Establishment Clause issue.11 Yet the Court did not use any of its numerous approaches to the Establishment Clause. It held simply that, when Congress accommodated the religious practices of inmates, it did not violate the Establishment Clause because Congress was furthering Free Exercise values.12 This accommodation went far beyond the legislative accommodations previously upheld by the Court. Without the Free Exercise Clause, the result in Cutter would have been impossible. When the Supreme Court explicitly holds that Congress can create a system under which prisoners can "assemble for worship, but not for political rallies,"13 attention must be paid. Religion, which lost the traditional "preferred position" courts have accorded First Amendment rights in 1990,14 can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not only regained parity with free speech, it now receives greater protection than speech in the prison setting. This victory for religious exercise already has made a practical difference. Within two months of the Cutter decision, a federal court of appeals reversed a pre- Cutter decision and upheld a prisoner's right to exercise his religion by wearing his hair longer than prison regulations specified.15 In the past, prisoners, as well as students, had often failed to gain constitutional protection for hair style choices, despite free expression and other constitutional claims.16 And Cutter's impact may soon extend far beyond this case. I will begin by looking at the origins ofthe congressional legislation on inmates' religious rights before turning to how the Court's decision in Cutter, upholding that legislation, empowers the Free Exercise Clause. Finally, I will offer a few reflections on the jurisprudential future of religion's new "preferred position. …