March 17, 2005

To What Extent Can Congress Regulate Religious Freedom

Pew Research Center Washington, D.C.

Download the Pew Forum legal backgrounder

Nathan J. Diament, Director, Institute for Public Affairs, Union of Orthodox Jewish Congregations of America; Co-Editor, Tikkun Olam: Social Responsibility in Jewish Law and Thought

Ira C. “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School

Richard Schragger, Associate Professor of Law, University of Virginia School of Law

David Masci, Senior Research Fellow, the Pew Forum on Religion & Public Life

ROBERT WEINBERG: On behalf of the American Association of Jewish Lawyers and Jurists and in the ecumenical spirit of St. Patrick’s Day, I am pleased to welcome you all to the new and beautiful quarters of the Pew Forum. I am very pleased to be able again to cosponsor an event with the Pew Forum. Many of you were at the previous event at the Mayflower several months ago, including one of the speakers, Nathan Diament. And another one of the speakers, Chip Lupu, has previously spoken to the monthly brownbag luncheon of the American Association of Jewish Lawyers and Jurists.

We’re particularly pleased to join with the Pew Forum because of the very broad base of focuses and interests that it brings to a discussion such as this. We fully expect that the arguments today are going to be equal to or superior to the ones the Supreme Court will hear on Monday, and what’s more, we’ll probably come up with the correct answer to the case before the Supreme Court does. (Chuckles.)

Finally, just let me say, for those of you who may not already be familiar with the American Association of Jewish Lawyers and Jurists, that it is the American affiliate of the International Association of Jewish Lawyers and Jurists, which was founded in 1969 by Justice Arthur Goldberg of the U.S. Supreme Court, Justice Haim Cohen of the Israeli Supreme Court, and Renee Cassin, a French jurist and Nobel laureate. The American branch of the IAJLJ was founded in 1983. The founding president was Professor Sherman Cohn of Georgetown, whom I’m sure many of you are familiar with, and who has remained very active in the association. For any who would be interested in joining, I have a little blue brochure. Please see me after the meeting or you can download a membership application from our website:

Thank you again for joining us and thank you particularly to the Pew Forum for hosting us in these wonderful new quarters and with much better than a brownbag lunch – a true kosher lunch. Thanks so much.

DAVID MASCI: Thanks, Bob, and thanks to the American Association of Jewish Lawyers and Jurists for helping us to organize this event. On behalf of the Pew Forum on Religion & Public Life, let me welcome you all today. My name is David Masci, and I am a senior fellow here at the Pew Forum, which is part of the Pew Research Center. For those of you who are not acquainted with our work, the Forum’s mission is to provide timely information on important issues at the intersection of religion and public affairs. We are non-partisan in nature and that means we do not take positions on any issues, including the one before us today, which, of course, is the constitutionality of the Religious Land Use and Institutionalized Persons Act. That doesn’t exactly trip lightly off the tongue. But fortunately there is an acronym we can use: RLUIPA – I’m not sure that’s too much better – (chuckling) – but at least it’s shorter.

As I’m sure most of you know, on March 21st the Supreme Court will consider the constitutionality of part of RLUIPA, the part that aims to protect the religious freedom of people confined to prisons and other state or local institutions. The law also provides protections for religious organizations that are subject to state and local land use regulations, but that section will not be before the Court this coming Tuesday.

The issues raised in the RLUIPA case involve complicated First Amendment and quite possibly federalism questions, so we’re especially fortunate today to have with us three of the best and brightest in the field of church-state law. Up first with us is Ira “Chip” Lupu, who is the F. Elwood and Eleanor Davis Professor of Law at George Washington University. A graduate of Harvard Law School, Chip is a nationally recognized constitutional law scholar who specializes in church-state issues. With his partner in crime, fellow G.W. professor Robert Tuttle, Chip directs the Project on Law and Religious Institutions and is a senior legal advisor to the Roundtable on Religion and Social Welfare Policy, which studies the role of faith-based organizations in the delivery of social services.

Nathan Diament, who is also with us today, is the Director of Public Policy for the Union of Orthodox Jewish Congregations of America. He has worked closely with members of both political parties on legislation addressing religious liberty issues, including the drafting of RLUIPA. In addition to regularly contributing to major newspapers and magazines, he is co-editor of the 1997 book Tikkun Olam: Social Responsibility in Jewish Thought and Law. Like Chip, Nathan is a graduate of Harvard Law School. He is an adjunct professor at the American University, where he teaches courses in religion and public policy.

Finally, we’re joined by Richard Schragger, who is an associate professor of law at the University of Virginia. Like Chip and Nathan, Richard is also a graduate of Harvard Law School – maybe there’s some sort of Harvard conspiracy here today – (chuckling) – where he was supervising editor of the Harvard Law Review. Before going to teach at U.Va., he clerked for the chief judge of the 3rd Circuit Court of Appeals, and held visiting academic positions at Georgetown, Quinnipiac and Yale University Law Schools. His areas of scholarly research include constitutional law, property law and legal theory.

Before I hand things over to our distinguished panelists, I want to quickly mention two other things. First, let me draw your attention to the backgrounder that we’re releasing today, entitled “The Constitutional Status of the Religious Land Use and Institutionalized Persons Act.” For laymen and experts alike, I think you’ll find this a fabulous resource. It lays out the issues very clearly and insightfully. And second, I would ask everyone to please turn off their cell phones and pagers, so that the speakers and other audience members are not distracted during the presentation. Thank you very much, and without further ado, let me give you Chip Lupu.

MR. IRA “CHIP” LUPU: Thank you, David. Luis, thank you to you and the rest of the Pew Forum for the kind invitation to be here today. It’s a treat to be here, especially with Nathan and Richard as co-speakers, despite the obvious absence of educational diversity, which we did not know about until David announced it.

Cutter v. Wilkinson, involving the constitutionality of RLUIPA, Section Three, the institutionalized persons section, is one of those cases that constitutional law professors dream about. It involves all of the major building blocks of modern constitutional law. It involves questions of rights, elements of the Bill of Rights, and more than one. It involves Free Exercise and religious liberty concerns about the freedom of prisoners. It involves Establishment Clause concerns about the scope of legislative accommodation of religion. It probably involves some freedom of speech and other tangent issues from other parts of the Bill of Rights as well, and I think we’ll get into that before the conversation is done. It involves federalism – that is, the question of the extent to which Congress may use its various powers to impose a regime of religious liberty not on the federal government but on the states, as they operate institutions like prisons, or operate their land use regimes. And it involves, more subtly, but I think quite importantly – and we’ll get into this as well – questions of separation of powers, questions about allocation of power between the Court and Congress about which institution is going to specify and provide the governing rule of religious liberty in various contexts. So a lot of the argument here is about that question, even though the arguments, as framed in the briefs in Cutter v. Wilkinson, don’t address it as such. But I think we’ll wind up talking a little bit about those kind of institutional concerns.

Now to understand that last dimension, and I think to understand anything about RLUIPA – and by the way, David, I like the name RLUIPA because you see that it’s a cousin – (chuckles) – it’s one of my Romanian cousins, okay? (Laughter.) “Lupu” and RLUIPA, meaning “wolf,” for those of you who understand the Romance languages. Okay, so there’s a wolfish quality of the statute, of which I’m really quite fond.

MR. MASCI: I didn’t mean to give your ancestors offense.

MR. LUPU: No, none taken. I think to understand the issues here, you have to understand RLUIPA’s provenance. It’s like a piece of art that has a background; there have been transactions and things that have come before. And RLUIPA, more than most statutes, really has this complicated back-and-forth judicial-legislative provenance. So I’m going to walk you through a bit of the provenance and then try to set up some issues that I think are going to be present in the argument on Monday, and then really leave it to Richard and Nathan to unpack more of the details of those arguments. And then maybe I’ll get back in and explain why both of them are probably at least half-wrong, when I get another turn.

So let’s go back to before 1990, to the law of Free Exercise of religion, before Employment Division v. Smith, which is a watershed case decided in 1990. And here I’m going to make a very long and complicated story really quite over-stylized and over-simple, but I think for purposes of the argument, as people understand it, that this is the appropriate way to frame it. Before 1990, the Supreme Court had at least in some cases announced a religion-friendly rule of religious liberty under the Free Exercise clause, a rule that some lawyers would say was a rule of mandatory religious accommodation. And the rule, if you had to put it in blunt terms, went something like this: If government imposes a substantial burden on religious freedom, typically understood as a direct conflict between religious obligation and legal obligation – where the law says, you must do X, and religious commitment says no, no, you may not do X (and that’s the classic case of the substantial burden; there are more subtle ones, but that’s the paradigm case) – when law imposes a substantial burden on religious freedom, that pre-1990 rule said, then the government must accommodate religious exercise, unless it has a very good reason – typically described in the terms “compelling interest” – a very good reason not to so accommodate.

And there were cases applying that rule going in a variety of directions, but that at least is the stylized version of the rule, and it was friendly to the idea of religious accommodation. That’s chapter one in the story there, up on the chart that I’ve put up. Chapter two is Employment Division v. Smith, 1990, where the Supreme Court effectively repudiates that rule. Now they make some exceptions and some distinctions so there’s remnants of the rule that’s left.

The basic outcome of Employment Division v. Smith surprised everyone because the case wasn’t briefed and argued on the idea that the pre-1990 law should be repudiated. Smith was about peyote use by members of a Native American church, and the extent to which the first amendment protected that right. And the Supreme Court not only denied their claim – which surprised many people – it repudiated the pre-Smith rule and said, “We’re not going to entertain pleas for mandatory accommodation under the Free Exercise Clause anymore. If people want exemptions or accommodations from general rules, they should go to legislatures, they should go to executive branches, they should go to politics. They shouldn’t come to courts. Courts should not be balancing religious needs against government needs.” That’s what happened in 1990.

There was a big fuss about that. Some of the people in this room were probably involved in that fuss. Nathan was probably involved in that fuss. Folks from religious interest groups of various kinds were very upset about that. There was a complicated politics between 1990 and 1993 – it involved abortion and all kinds of other things that in retrospect seem odd. But it led to the enactment of legislation that Nathan and his group and some other folks pushed to try to overcome the decision in Employment Division v. Smith. And then finally in 1993 they succeeded in having Congress enact, by overwhelming majorities, the Religious Freedom Restoration Act, otherwise known by the acronym RFRA – nicer than RLUIPA, because it’s sort of like a river. You can do puns on RFRA that aren’t as easy to do on RLUIPA.

So Congress in 1993 enacted the Religious Freedom Restoration Act, which was designed to effectively, by statute, create rights to religious accommodation that Smith had undone, in terms of constitutional basis. And RFRA didn’t specify any particular outcomes; it specified a rule of decision. And the rule of decision that RFRA specified was the pre-Smith rule that I described. It said when government substantially burdens religious exercise, it has to be justified by a compelling interest; otherwise there must be a mandatory accommodation. And RFRA applied to the federal government, to state government, to local government, to all of government. And it applied to all activities of all of government. RFRA was really very sweeping in its coverage of the activities of government.

There was some experience then in the lower courts under RFRA for three or four years. And I wrote a piece back in the late ’90s in which I said I didn’t think RFRA had actually accomplished as much as people thought it might, and that’s another story. But for our purposes, what’s most important is that in 1997, there was litigation in the Supreme Court – City of Boerne v. Archbishop Flores – challenging the constitutionality of RFRA. Boerne was a small town in Texas that had made historic preservation orders for a particular part of one neighborhood. The orders applied to a Catholic church. The Archbishop said, “Listen, I want to expand my church and I don’t want to have to meet your historic preservation rules. It will make it too expensive or impossible to expand my church to fit the growing congregation.” And the town said, “No.” There was a suit by the church based on RFRA, among other things, saying, “You burdened our religious freedom by telling us we cannot expand the property of our church to hold more worshipers on Sunday morning.” And the suit wound up in the Supreme Court in 1997, and the Supreme Court wound up holding RFRA unconstitutional as applied to the states. RFRA is still constitutional and occasionally gets applied to actions of the federal government. But RFRA was held unconstitutional as applied to the states.

It’s important to understand that there were three lines of argument here. The first one was under the Establishment Clause. The argument was that RFRA favors and benefits religion as a cause, as compared to any other comparable cause, and that favoring or preference for, or benefit to religion unconstitutionally endorses or favors or advances it, and that violates the First Amendment. Only one member of the Supreme Court, Justice Stevens, addressed that question, and he agreed with that argument. He said RFRA is unconstitutional because it is inconsistent with the Establishment Clause. Now Justice Stevens has almost never met an Establishment Clause argument he didn’t like; he tends to be very heavy in that direction. So that was no great shock. But that was one vote – one vote only, one opinion only – that addressed that question about RFRA. And the vote was that it was unconstitutional under the Establishment Clause.

There were arguments about separation of powers. The advocates against RFRA said, “Listen, the Supreme Court has changed the law of religious liberty from pre-Smith to Smith, and RFRA is just trying to put it back where it was. And Congress can’t do that, that’s a judicial function. That’s not a legislative function and that violates separation of powers.” We could spend many hours here wrestling with this one; there are some subtleties to this. But the short answer to that argument is that while Congress can’t establish constitutional rights, it can establish statutory rights and it can write them in terms that were once thought of as constitutional law terms, and that’s okay. In any event, the City of Boerne opinion does not squarely resolve the separation of powers point. If it had and said, “This violates separation of powers,” RFRA would be bad against the federal government, just as it would be bad against the states. The Court alludes to the separation of powers issues and doesn’t really resolve them in the City of Boerne case.

So this leaves us with the last problem, which is federalism. To what extent does Congress have power to impose a regime of religious liberty on the states? And here the argument for the proponents of RFRA is that section five of the Fourteenth Amendment gives power to enforce the protections of the Fourteenth Amendment, which protects constitutional rights against the states, and that provision gives Congress authority to impose a regime of religious liberty on the states. And no one on the Court says, “Yeah that’s right, Congress has that power.” Three justices don’t really directly and squarely address it, and six justices say, “That is correct: Congress has power to enforce constitutional rights against the states. But what it’s done in RFRA is that it’s gone way beyond existing constitutional rights against the states. So Congress could enforce whatever the rights in Smith – however that specified the rights against the states – but pre-Smith law went so far beyond the existing law that Congress was no longer enforcing constitutional rights, it was enforcing something much wider, bigger, larger. And that, Congress does not have power to do and therefore, RFRA is unconstitutional, as applied to state and local law.”

Then there are political episodes that Nathan can tell us much more about. There’s a fuss about, “Well, now we’ve lost RFRA as applied to the states, what can we do?” And there was some intervening proposal, but by 2000, there was a successful proposal to enact RLUIPA – the Religious Land Use and Institutionalized Persons Act. Now how is RLUIPA different from RFRA? It’s different in two important ways, which I’m just going to allude to, and then we’re going to wind up unpacking this in greater detail in just a minute.

One way RLUIPA is not different is that it also purports to reinstate some of the pre-Smith regime. RLUIPA talks about substantial burdens on religious freedom in institutions or in the land use process; the state must have compelling interest to refuse to accommodate.

So in some ways, RLUIPA is like RFRA. But in two important ways, it’s different. It’s not across the board; it’s limited to land use and to institutionalized persons. These are two contexts in which there was some evidence before Congress that there really was a problem of state and local insensitivity to religious freedom that could be documented in some fashion. There was some particular evidence about those contexts.

The other major difference is that both the land use and the institutionalized persons part of RLUIPA purport to rest on other sources of congressional power – the Spending Power, a condition on federal spending, as well as the Commerce Power. Now the land use provision rests on the power to enforce the Fourteenth Amendment as well. But Cutter v. Wilkinson is not about the land use provisions; it’s only about the prison provisions. And the prison provisions rest on the federal Commerce Power and the federal Spending Power. This is a civil rights condition on the states that accept federal money: they must accept the provisions of RLUIPA.

So we’re going to have, in Cutter against Wilkinson, some arguments about the Establishment Clause again – that RLUIPA unreasonably, unconstitutionally favors religion. We’re probably going to hear from Nathan about why he thinks those arguments are wrong. And we’re going to hear arguments about federalism – subtle and complex arguments about federalism and the relationship between federalism and religion. I think we’re probably going to hear from Richard about those arguments, so I’m not going to try to give you the coming attraction on that. Nobody, by the way, is arguing separation of powers in the strong sense here. But I think lingering underneath for many of the justices is going to be this sense of, “Hey listen, we told you back in 1997 you couldn’t do this. We repudiated some rules and doctrines. You can’t keep shoving them back at us. We don’t want to adjudicate under those rules and we’re not going to – no matter how many times you ask us to.” I think that’s the subtext, and how that plays out, I think, will be interesting to see.

So I’ll let the others amplify some of these things.

MR. MASCI: All right, thank you very much, Chip. Now we’ll hear from Richard Schragger.

RICHARD SCHRAGGER: Thanks, David, and thanks, Bob, for having me. And it’s great to be here with Chip, whose work I admire a great deal, and with Nathan, who was my client at one time when we were defending the kosher fraud ordinance of New York. Unfortunately, we failed miserably. I’m sorry, Nathan. And now I’m back here arguing against you.

It’s an enviable task to defend RLUIPA. Senators Kennedy and Hatch are on board, so is most of the Congress, so is the ACLU, and most other folks who have filed amicus briefs in this case. The only people that seem to be concerned are the League of Municipalities. And since I’m more of a local government scholar than a religion scholar, I tend to side with the League of Municipalities. They have very little voice, it turns out – talk about a discreet and insular minority. (Laughing.)

In any case, I’m going to address first the Establishment Clause arguments, because that’s what is on the table, at least, in the question presented to the Court. I think they’re going to have to deal with these federalism issues. My own position on this is that while I’m not a strong federalist when it comes to the Fourteenth Amendment or the Commerce Clause Power, I am when it comes to the Establishment Clause. I think ultimately there should be a decentralization value interpreted into our Establishment Clause, and that’s in order to protect religious liberty, not because I’m against religious liberty. I’m quite in favor of it, and I just believe that when centralized institutions like Congress start mucking about with trying to protect religious liberty, they often get it wrong and the outcomes may actually be the reverse of what they want.

But let me say a little bit about RLUIPA and the more standard Establishment Clause arguments. The question is one of baselines, and that’s often the question in constitutional law. To the extent that RLUIPA relieves burdens, it’s a permissible accommodation. To the extent that it provides for more favorable treatment of religions or constitutes favoritism towards religion, it’s impermissible.

So we have to figure out whether it’s relieving burdens or whether it’s actually favoring religion, which is a tough line to draw. I tend to side with the 6th Circuit that struck down the provision for some of the reasons they state in that opinion and some other reasons. My biggest concern is that when legislatures pass laws that give religious individuals either benefits or some kind of exception to generally neutral, applicable laws, it puts religious institutions in a position of becoming lobbyists to legislatures, and it puts legislatures in the position to either grant such benefits or exceptions or withhold them. And I worry a lot about what happens to the relationship between religion and the state when the state has power to withhold the ability to grant benefits or to withdraw them. And that’s the case with RLUIPA. There’s nothing preventing Congress from taking it away. There’s also, on the front end, nothing preventing Congress from saying no when religious organizations go to them to try to receive these exceptions.

So this is problematic in two ways, I think. The first way is that religious institutions might be put in a defensive posture. That is, religion as a whole as a social practice may be put in the defensive posture vis-à-vis Congress, because they have to go and ask for these exceptions. Also, the other possibility exists whereas the Congress becomes beholden to religious institutions, who can organize a pretty robust constituency in favor of these kinds of things. This, I fear, will favor more organized and more institutionalized sects over less institutionalized and smaller sects, and it will also favor religious institutions and individuals over non-religious individuals and institutions.

This doesn’t mean that I think that legislatures shouldn’t be in the business of giving some kinds of exemptions or accommodations to religious practice. I think those are fine. My theory has been that these should be done in a discreet, particular manner to lift burdens that are identifiable instead of in a blanket manner across a whole swath of activities, and that they should be done at the lowest level of government possible.

So those two points I’ll try to spell out a little bit. RLUIPA is not discreet, even though Chip says it was different from RFRA. That is certainly true; RFRA applied to anything that the government regulated, and RLUIPA applies to a narrow set of circumstances – prisons and land use. But within that sphere it applies to everything that the government does.

So in that respect it benefits religion, not by taking away, for instance, one particular burden that has been imposed upon religious institutions – say, the inability to use a controlled substance, like in Smith, because there is a general law that bans the use of controlled substances generally. It actually gives religion, or religious persons, benefits because of their status as religious persons, not because of the acts that they’re engaged in, and it doesn’t approach and try to remedy any particular practices that are being burdened; instead it just says any practice that might be burdened gets to be accommodated in this instance. The second reason it’s so broad is because it’s national in scope. It applies throughout the United States at every level of government. And it overrides any state or local laws that are to the contrary; that is, it gives accommodations across the whole range of institutions.

The second problem I have with RLUIPA is that because it’s a blanket exception for religious individuals and religious practices – that is, because it applies to status – it can actually encourage individuals to clothe their requirements, their demands, in religious language. We see this in the prison setting a lot, and the Ohio brief mentions this in great detail. I think it’s quite convincing. In the Ohio case you have religions such as a satanic group, a Wiccan group and a white supremacist church. Those groups are asserting religious claims to wear their hair longer, and in the case of the white supremacist church, to gain religious literature that espouses white supremacist views. It is not far-fetched to believe that, at least in the prison setting, this would continue – that many prisoners would clothe their needs or their ideological requirements in a church-based claim.

And second, because it’s written in blanket terms – that is, it doesn’t lift just one particular burden – it also imposes costs on others. This is particularly true of the land-use provisions, which aren’t directly at issue in Cutter. In the land-use provisions, this means churches get out of any local land-use provision, or at least they can make arguments to get out of any local land-use provision that they want to as long as the Court can find that this is an undue burden on them.

That may impose significant costs on the neighbors in a particular locality. Which leads to the third reason why I’m concerned about RLUIPA, and that is, in the land-use context, at least, we’ve seen some backlash against religious organizations actually relocating into particular communities. Why is there a backlash? Because once a church locates in a community, the local governments fear that they will not be able to enforce their generally applicable neutral zoning laws against them because the churches will bring to bear a set of national statutory entitlements that they can then use against local governments.

This does not mean that local governments don’t sometimes discriminate unfairly against religious organizations and churches. I think that does happen. The question is, how do we remedy it? And is it proper for a national regulatory entitlement to be imposed on local governments, and will that actually result, as a matter of course, with local governments simply denying access to their communities altogether as opposed to actually inviting them in? Many local communities already make exceptions to their land-use laws for churches. And states do this as well; it’s not always the case, but it’s often the case.

The other thing I am concerned with is that this statue embroils courts in determinations of burdens and benefits that will ultimately disfavor religion at the end of the day. One can imagine that judges, when they are faced with the RLUIPA claim from a white supremacist church in a prison setting, will probably devalue the religious component of that claim and value much more highly the government’s interest in imposing these kinds of restrictions. The result will be that many religious groups will be under-protected and some might be overprotected. But it’s very hard to know how, and the criticism of courts getting involved in this is that the decisions by judges will be arbitrary and often subjective; they will pick and choose among religions because those religions are more sympathetic to their viewpoints, or less.

The argument has been made that accommodations themselves, exceptions for certain religions, often mask discrimination against other religions because you often can’t apply these things evenhandedly.

And then my final argument against RLUIPA, which I mentioned at the outset, is that it’s centralized, that it comes from Congress. Now, the argument I’m making here is different from a federalism argument, which Justice Thomas on the Court has started to make. My argument is not that Congress doesn’t have the power under section five of the Fourteenth Amendment or under the Commerce Clause or under the Spending Clause to pass such a thing. My argument is that the Establishment Clause itself embodies a kind of federalism value. That is, what we worry about with the Establishment Clause often should be the scale at which government regulates religion, either by benefiting it or burdening it.

And we should be concerned especially when Congress does this. Why? Because they’re the national body; they govern for the entire country; you can’t exit out of their governing system. Whatever rules they adopt, you have to abide by whether you’re a state or a local government, and these kinds of national exceptions or accommodations are not as tailored to the local circumstances. Moreover, what they tend to do is politicize our national political dialogue along religious lines, and that’s something that the founders were quite concerned about; that is, the institutional relationship between religion and the state and the politicization of that relationship.

So the idea is to leave religion alone so we don’t have that politicization. Once you’ve generated the kind of politics of religion at the national level, suddenly senators and congresspersons have to come out either for religion or against religion, and that’s what RFRA did and that’s what RLUIPA did; it put them in the position of saying, “Well, I’m either for it or against it.” That pressure is very hard to resist and it brings me back to this idea that we don’t want religious organizations lobbying at the highest levels for either exceptions or being subject to the possibility that those things would be withdrawn. That puts religion and the Congress in a relationship that is quite dangerous, it seems to me.

This argument is made by Ohio as a federalism one. I think that’s okay. I actually, as I said at the outset, like local governments better, so I’m not even sure that the centralized RFRAs of the states, which many have adopted, are a good idea. What I want to leave you with is this idea that decentralizing power – that is, the idea of federalism – is a structural component of religious liberty itself, and the reason for this is that if we have a diversity of regulatory practices across our local governments, across our states, that will encourage a diversity of religious sects. That is, it will encourage a kind of diversity across legal jurisdictions that will be beneficial to religion in the long run.

This does not mean that there aren’t discreet instances where individuals are burdened unfairly by generally neutrally applicable laws. Those things happen all the time, and those things I think the Court can take care of, and they’ve shown that they can. What it doesn’t mean is that we need a national statute, and in fact, it may mean that the Establishment Clause is offended by such nationalization.

And then I’ll leave it to you.

MR. MASCI: Thanks very much, Richard.


NATHAN DIAMENT: Thank you, and thanks to the Pew Forum for once again putting together a wonderful discussion. It’s a pleasure to be here with all of you and with Chip and Richard.

I want to do a few things before I get to the legal arguments. One is to flesh out a little bit of the legislative history. And I mean the real legislative history as opposed to the kind of legislative history that I suppose is generally talked about in judicial arguments, which Chip alluded to but I think really colors how this case is looked at. The reason why, in short, this statute has such an unfortunate acronym is because of political battles at the national level. Before there was RLUIPA there was just RLPA. There was the Religious Liberty Protection Act, which the coalition of groups – the very broad coalition of groups that had written and lobbied for and got RFRA passed – went back to the drawing board to write. RLPA was basically RFRA with the Commerce and Spending Clause thrown in; it was not targeted just for land use and prisoners. It was very broad. It was introduced in the same bipartisan way as RFRA was. The coalition working it was, as I said, quite broad as well.

Things started going in Congress. It even made it through the House of Representatives, but as that vote approached, the coalition started to fracture. Without going into all the gory details, some groups, principally led by the ACLU, split off because they had made a determination that this broad standard of compelling state interest and least restrictive means, reinstating that for Free Exercise claims, in their view, in just a few short years after Smith, after RFRA, would put at risk particularly gay rights ordinances that were being put in place in localities around the country. It perhaps might imperil other more progressive civil rights interests as well by giving to religious individuals or institutions a reinstated ability to make free exercise claims and to thereby bring lawsuits to seek exemptions from those kinds of progressive civil rights measures.

These individuals would be handed a tool to wreak havoc amongst these new ordinances that the ACLU and the gay rights organizations, et cetera, were beginning to have success at passing at the city level or the county level and so on. And so – Rich Fulton or Brent Walker can remind me if my recollection is right – the House vote was actually pretty close at the end of that process because of this fracturing, but the broader bill successfully passed the House. And then at the Senate I wouldn’t quite say it was dead on arrival, but it was clear renegotiation had to happen, and that took some time.

And ultimately what came out of the sausage maker was the statute that we have before us, and just as much as it’s true that land use and prisoners are the two areas where you could satisfy the Supreme Court’s ostensible requirement that you needed to have a real documentation, a real legislative record of abuses and discrimination and so on and so forth that Congress could point its finger to and say, “This is what we’re responding to” to justify this kind of remedy. Land use and prisoners did not implicate any of these hot-button issues in the political-cultural debate.

And so I assume that does not appear anywhere in the judicial record of this case, and I don’t know whether the justices will be at all aware of that background or not. But I think it is, in fact, relevant to some of the arguments that Richard has put forward, because it’s often assumed that religious communities, their institutions, their organizations, are incredibly powerful and, if they can band together in even less-broad coalitions than the one that supported this statue, that they can basically call the tune to which the national legislature will dance.

But the experience of this legislation, and since then other pieces of religious liberty legislation, has been that the organized religious communities are really not quite that powerful, that there are vested interests – certainly at the national level, and I think it’s also true at the local level in different ways – there are vested interests in the two major national political parties that are just as, if not more, powerful than the religious community interests. So it’s not so clear on that level of reality that that contention that Richard is putting forward – that it’s opening up this risk – is accurate.

Secondly, the point about the decentralization value in regards to the Establishment Clause is a very creative argument. I’m not sure if you’re trying to suggest it’s somehow part of an originalist argument or if this is a very creative argument on your part. If it’s the latter, my hat’s off to you. If it’s the former, I would defer to Doug Laycock, who wrote a brief to the Court in this case that deals specifically with the federalism argument from our side of the table in this case. Doug basically puts forward the case that that sort of federalism embedded in the Establishment Clause arguments are really not supported by the history of the framers’ era and the language of the debates that went on at that time.

But that being said, taking it as a creative argument by Richard, it’s not so clear that decentralization serves the interests of religious liberty. You could just as well argue that decentralization further empowers local majorities to engage in discrimination against the minorities. This is all the more clear in the land use context than in the prisoners’ context. And, by the way, just to draw up another footnote, the Court could have decided to take up the land use portion of the statue as well. There’s a case out of the 11th Circuit out of Florida involving a synagogue that fought a local town on the land-use provisions of RLUIPA and prevailed in the 11th Circuit. The town petitioned for cert to the Supreme Court this term, and the Court decided some weeks after it granted cert in Cutter not to take the land use case. And I’ll leave it to Court tealeaf readers as to exactly what that means.

But in any event, they could have taken it if they had wanted to; they could have dealt with the whole statute if they wanted to, but what you see particularly in the land use case, where we were able to document many, many cases, is that at the local level, land use authorities do use zoning and other land use regulations and laws to discriminate against whoever the out group is. And nobody comes out clean here. I mean, Protestants have done it to Catholics, Catholics have done it to Jews, Reform Jews have done it to Orthodox Jews, so on and so on and so forth. No one has clean hands. But the decentralization concept certainly empowers whoever the local majority is further to engage in that kind of activity.

So that’s why I’m not really taken. Plus you could argue certainly that, in our modern and contemporary conception, the Bill of Rights is all about not only taking certain issues off the table as far as national versus local goes, but it is also setting out a list of civil rights that we don’t want to be contingent upon the vagaries of the political processes and prevailing majorities and so on, and certainly the freedom of religion is foremost among those.

The line of argument about the Establishment Clause is something that I know Justice Stevens and some other people will take quite seriously, but there have been so many cases and so many instances where one degree of accommodation or another for religion has been found to be constitutional and not an Establishment Clause violation. So I’m less worried about that aspect of this case than the federalism, whatever flavor, or the general deference that a court will want to give to prison administrators in this case. There is a previous case, O’Lone v. Shabazz, about 20 years ago, in which some inmates brought Free Exercise claims, which were squarely rejected by the Supreme Court not because of any fanciful arguments – just the argument that we have to be deferential to prison administrators about how to run institutions like prisons.

But there are many kinds of accommodations which have been upheld, and what is central in the arguments of this case is The Corporation of Presiding Bishop v. Amos, which, apropos to a lot of the political debates that are swirling around in Washington these days, is the case in which the Court upheld the exemption in Title VII’s employment discrimination sections to allow religious institutions and organizations to hire and fire, if you will, on the basis of religion. In that case, a Mormon institution was entitled to decide it was going to only hire Mormons, and it wasn’t only with regard to clergy or other kinds of official religious posts. A unanimous Court in Amos decided that the exemption in Title VII applied from top to bottom in a religious institution and was not an Establishment Clause violation at all. And in concurrences, by the way, Brennan and Marshall very much suggested that if that exemption were not in the statute it may well be required by the Free Exercise Clause.

But in any event, that accommodation is the paradigm accommodation right now, especially in the context of debates in this town over charitable choice and the president’s faith-based initiative, and that might work behind some of the thinking of some of the justices, it seems to me, in how they deal with the Establishment Clause argument here as well.

I think we should leave more than sufficient time for discussion so I’ll just wrap up with one point, which is that I’m glad the Pew Forum is doing this and I’m glad you all are here because to my mind, this case is much more important to how religious liberty is going to be lived and experienced by people in this country than the other religion case that’s on the Court’s docket this term, which, in the media-informed world in which we live, has received lots of loud attention in the media outlets. This case is obviously a lot more complicated to explain than the Ten Commandments case, but it’s one which, as I say, is much more important in terms of the contours of how people are going to enjoy their religious liberty in this country.

Thank you.

MR. MASCI: Thanks very much, Nathan, and thanks to Richard and Chip as well for your excellent presentations.

We’re going to go to Q&A. If you do want to ask a question, please identify yourself and the organization or firm that you work for.

So would anyone like to start off? Yes, Linda.

LINDA GREENHOUSE: Linda Greenhouse from The New York Times. Just as a matter of Supreme Court process, what’s your opinion on this? Since cert was granted only on the Establishment Clause question, if the Court reverses the 6th Circuit on the Establishment Clause, can they go further or don’t they just have to remand?

MR. LUPU: That’s a very good question, and I think we ought to let Marty Lederman, sitting right here, answer it. (Laughter.) Marty was the author of the brief for Senators Hatch and Kennedy, which was particularly focused on this very question. He’s absolutely the best person in the room to answer. Marty, would you?

MARTY LEDERMAN: Thanks, Chip. (Laughter.)

It’s a complicated cert. history as you know. The Court could have taken a case from Virginia that would have clearly only raised the Establishment Clause issue. Ohio asked it to take this case instead, precisely because it would give the Court the option, if it wanted, of reaching the Spending and Commerce Clause issues as alternative grounds of decision. Ohio is the respondent and the respondent can always interject alternative grounds for sustaining the judgment below as long as they were preserved below. And Ohio has done so. They’ve made both arguments, and therefore it’s open for the Court to do so as well.

The Court’s general practice is to remand alternative arguments for affirmance to the lower courts – at least to hear where there is no circuit split as there is not with respect to the Commerce and Spending questions. And we’ve urged them to do exactly that here. If they rule for the Congress and against Ohio on the Establishment Clause, they should remand and let the issues percolate in the lower courts.

I think what Ohio is hoping for, and urging quite expressly in its briefs, is a lose-all-the-battles-and-win-the-war strategy. The briefs literally say, what happens if, for instance, the Court rules six to three that RLUIPA is consistent with the Establishment Clause and six to three that Congress has the Spending and Commerce powers, but the three justices forming each dissent are different and therefore you have six justices to strike down the statute? In that case, Ohio argues, the Court should invalidate the statute because there are six votes against it. If the Court were to do that, the message to Congress would be: “You have the power and the Establishment Clause wasn’t violated, but the statute’s invalid anyway”? (Laughter.)

And maybe the Court took this case because it gives every Justice the option of taking 18 different ways to get to whatever result they want. But we’re hoping they confine the case to the Establishment Clause.

MR. LUPU: Let me just add a footnote to that, which is also a footnote to what Nathan said of comparing this to the Ten Commandments case. You know, I think everybody who paid attention to that case knows that it’s sort of four to three and there’s two votes in play and the other seven are so committed on those kinds of cases that we can predict what they’re going to say. But with Cutter, other than Justice Stevens – who I think we can predict will say that it violates the Establishment Clause – I don’t think it’s so easy to predict any other justice. There are just conflicting pushes and pulls on them that might take them out here and might take them out there. Especially if they start reaching out for the other questions. It’s a very hard one to call.

MR. DIAMENT: And one of the dynamics that’s also going to go on is Justice O’Connor – you have to be able to predict because she’s written this in concurrences and dissents – she will be probably pushing other justices to revisit Smith, no matter what they’re doing on this particular statute. She said Smith was bad and wrongly decided and probably has at least one or two other justices who would want to push that a little bit.

My ideal outcome is they can strike down the statute for all I care and then reverse Smith and say we were wrong – (laughter) – and then we’re right back – and that’s the best result.

MR. LUPU: But that won’t happen.

ANTHONY PICARELLO: Anthony Picarello from the Beckett Fund. I have a question that’s primarily for Professor Schragger, focused on the distinction that he’s drawn between, if you will, wholesale and retail accommodations of religious exercise. I think I see a tension in there which I’m hoping you might be able to resolve with respect to justifying that argument on the basis that putting legislatures in the business of making accommodation puts churches or other religious groups in the business of being lobbyists. In other words, it seems to me that being permissive about retail regulations invites more of that kind of lobbying activity over and over again, and indeed at every level of government, whereas doing it wholesale – again, ideally, in my own view, through the Constitution, but in the alternative, the sort of second-best solution is to do it by federal legislation, and whether that doesn’t additionally combat Federalist 10-type concerns. You’re right that you’ll have religious diversity, but you’ll have religious diversity in pockets where religious groups will be relatively homogenous in particular places, have the reigns of government being able to apply them sometimes in not ideal ways – again, in a way that means no one’s hands are clean.

MR. SCHRAGGER: Those are great points. I wrote an article, which Nathan is referring to, last year – it appeared in the Harvard Law Review – in which there are two pieces of conventional wisdom that I challenge. The first is the Federalist 10 claim, which is that local majorities will always do bad things to minorities or that more often than not they will, Madison says, extend the sphere and you’ll protect yourself from that. I have a broader theory about that, which is that we’ve seen that Congress actually isn’t less susceptible to special interest capture either of the minoritarian version or the majoritarian version. So Madison just might be wrong. But don’t quote me on that. (Laughter.)

I think Madison is wrong here, and I use a theory that Chris Eisgruber and some social scientists have offered, which is the following: The fact that we have multiple levels of government – federal, state and local – that is, that we have a fragmented governmental system, not a unitary one as in Europe, is almost as important as the doctrine of disestablishment in promoting a multiplicity of religious groups. And it’s that multiplicity that Madison thought was the structural protection for religious rights, not the Bill of Rights in particular, not a federal government protecting local minorities from over-weaning majorities, but the mere fact, the social fact of a multiplicity of religious groups, sects, institutions, persons.

Eisgruber says what happens is people in this country go out – and he looks at history and then he compares it to Western Europe, which Tocqueville did originally and said, “They’re not as religious there; why not?” Well, one reason Tocqueville gave was that we have local government, and what people do is they get up and they move to Utah, for instance, when they’re not welcome in another place, or they go to another town or they establish religion in a different place, and they have more access to the political system and the political process and the legal system because we have the benefits of federalism or fragmentation more widely.

So that’s a response to the majoritarian tyranny claim. It’s about how we get the social fact of multiplicity, which is what I’m trying to get at and what I think Madison wanted to get. It’s not an originalist argument, which others have made. I don’t care about the originalist argument; I think it’s a substantive value and it’s an instrumental one. I think the best protection for religious liberty in this country is the fact that we have pluralism, and the more the better, and the way we get that is not by nationalizing these kinds of things, and that’s the concern, either along the religious dimension with establishment or along the governmental dimension.

MR. DIAMENT: But it’s ironic for you to make that argument, particularly in the context of this case, because in the land-use context, if you go and look at the hearing record, the majoritarian discrimination against religious minorities at the local level through the very opaque machinery of land use and zoning regulation is very clear and very well documented.

MR. SCHRAGGER: No, that’s right, and one thing you said, Nathan, which is exactly right, is that it’s not entirely clear whether religion as a social practice, an institution, is vulnerable or powerful. Sometimes it’s one; sometimes it’s the other. I’m concerned about both. That is, that religion as a social practice is sometimes vulnerable and therefore we don’t want it to be beholden to legislatures. And it’s sometimes powerful; that is, it’s going to overwhelm. And certain religious organizations will overwhelm other ones. There is no question in my mind that’s going to happen occasionally at the local level. The question is, is it better if it happens in discreet territorially defined jurisdictions where then you can escape it through exit, that is, people can leave? Now, I’m not suggesting that is the solution to the constitutional problem; I’m just suggesting that is one benefit of having a decentralized and fragmented political system.

And can the Supreme Court effectively protect against the more serious abuses? I think they can. Church of Lukumi Babalu is an example of that. I’m not saying don’t do that; I’m saying do it. Now you can say I’m in favor of the pre-Smith regime, but also say I’m not in favor of RLUIPA or RFRA. The reason is because I like courts doing this, not legislatures of any kind. That is a very different position from saying I like RLUIPA and RFRA and think they’re constitutional. It may simply be that we want to go back to a pre-Smith regime. There are some problems with that and that may be better because it de-politicizes – and I think, Chip, you’ve made something like this argument – it de-politicizes the activity of giving accommodations and exemptions.

The other point, Anthony, is that I think actually more particular heuristic accommodations are better, less dangerous than more broad-based ones. That also tends to go against conventional wisdom. The conventional wisdom is the more religions you include, with just sort of a blanket protection, the better. I think it’s actually sometimes better to say, for example, “Jews don’t have to follow the federal slaughtering laws.” What that indicates to me is that people are taking an interest in that minority sect in that case. Now, there is some reasoning to the contrary, which is when we do it in this way, we worry about favoritism, and I think that is a concern.

MR. DIAMENT: But at a minimum, it draws religious groups into the legislative process more frequently. In other words, if they are doing it one by one, that is sort of raising it in connection with the other argument that you’re making, more so than whether it stands for -

MR. SCHRAGGER: I think that is right and what I would say is that I don’t mind that process if it’s going on in a decentralized fashion – that that is okay and I want to see a diversity of that. So in fact, my broadest argument is that we should give a little bit more leeway to localities to regulate either burns or benefits on religion and a little less leeway to more centralized units of government. But then you catch me on the fringes and we have to talk about particular instances – I agree.

MR. MASCI: Let’s go to another question. Ken?

KEN JOST: Ken Jost with Congressional Quarterly.

I want to address Professor Schragger and Professor Lupu. Mr. Diament referred to your argument, Professor Schragger, as “creative.” It seems quite policy-based to me. At least I didn’t hear any precedent, and so I would be curious to hear from the podium the strongest statement of a classic Establishments Clause violation argument against the statute.

MR. SCHRAGGER: One would apply the Lemon test presumably or some version of it. And the Ohio brief does this and sort of goes through and says, “Why does this impermissibly advance religion?” And then makes a number of claims as to why that does. One of those claims is that it encourages prisoners to adopt religion, which obviously is a blanket kind of advancing of religion. If people are becoming more religious because of your rules, then you are advancing religion.

Another one is a neutrality argument, which I don’t buy that much, to be honest, but the neutrality argument says we have to be neutral as between religion and non-religion; there is a lot of rhetoric of that in the case law. And because this actually favors religion over any other social kind of practice, we’re not being neutral. And in certain cases what we mean by “neutral” is that you can lift burdens but you can’t give benefits. And they would say, “No, this gives benefits – vastly bigger benefits to religious prisoners in this case than to secular ones.”

Another claim would be – and we see this claim in some of the accommodation cases – that this imposes some kind of burden on non-religious folks. And so courts will look at this to see if there are non-religious persons being burdened by lifting of the burden, so to speak, from the religious folks.

And then there is an entanglement question, which the Ohio brief also talks about and says, “You’re going to get entangled in all of this because now prisons have to figure out, one, what is a genuine religion; two, what is its central theology; and three, who to accommodate and who not to. And those kinds of decisions shouldn’t be made by the government.”

Then there’s an endorsement claim that Ohio makes, which is that in the prison setting, at least, once other prisoners see that you are favoring religions, it’s going to look a lot like endorsement to them. Now, endorsement is a weird test that O’Connor has adopted because it talks about what the reasonable person would think on looking at this law. And so I’m not sure who the – (chuckles) – reasonable person is. Is it the reasonable prisoner? Is it the reasonable -

MR. DIAMENT: There isn’t one -

MR. SCHAGGER: Right, there is no reasonable – (chuckles) – we’re all unreasonable. But Ohio says the reasonable prisoner is going to see that religious prisoners are getting better treatment and either become religious or think, “Wow, the state really likes religion a lot.” And that may be seen as an endorsement.

MR. LUPU: That was a very thorough and a very good answer. I have just a little bit to add to it. Take the concrete case of the two prisoners who both want the white supremacist literature – and even the same book, perhaps. And one of them says, “It’s part of the faith to which I’m committed,” and the other one just says, “Listen, I’m a part of a white supremacist gang and we like this book; it says good things about white folks and bad things about other folks.” And it’s imaginable, isn’t it, that under RLUIPA as applied – it’s imaginable that the religious prisoner gets the book and the non-religious prisoner doesn’t get the book, which then leads you to this point about the possibility of the second prisoner faking religion in order to get the book, or you’re going to favor the religious over the non-religious prisoner.

That’s an interesting sort of frame for this, but it all does assume that the religious prisoner will win in the first place. And Cutter‘s about the case on its face – is it permissible to release substantial burdens on religious freedom? And it may be that the religious prisoner would lose this case in which there would be no favoring, nobody would get the book, or it may be the religious prisoner will win and will get the book. And then the non-religious prisoner could say, “Well, now we have got a First Amendment problem. Maybe now I ought to have the right to it once the other prisoner has the right to it.” And that is a freedom of speech claim. Maybe you can equalize up or equalize down as a way of solving some of the favoring problem as it works out.

MR. DIAMENT: What’s ironic about that is that the Supreme Court’s free speech jurisprudence is still as aggressively pro-individual liberty as you can get. I don’t know exactly how it plays out in the prison context, but ironically you could get the result that if RLUIPA would go down, you would have exactly the mirror of that case, which is somebody bringing a lawsuit to get their literature on free-speech grounds, possibly having strong claims to make, and the Free Exercise person is the weaker one.

MR. LUPU: But everybody would have Free Exercise claims, Nathan, and everybody can get the book. But you know, there is another footnote to what you said about accommodation law. There is the Texas Monthly case in the Supreme Court, which is an exemption for sales tax for religious literature and not for other literature. And the Texas Monthly is a secular magazine. So it says, “Wait, why do you relieve them from the tax and not us from the tax?” And the Supreme Court says, “No, you can’t do that. The tax is not a substantial burden on religious freedom, and there is this problem of favoring religious literature against non-religious literature in a distribution.” So there are issues lurking there, but it’s not clear that they are going to be at the center of a case that involves the facial constitutionality of this statute.

MR. MASCI: Yes, Bob.

MR. WEINBERG: I’ll just ask Nathan Diament if Jewish groups have filed amicus briefs in this case, and if so what positions have they taken? Have they all supported constitutionality?

MR. DIAMENT: I think all of the Jewish groups signed onto the coalition brief that was authored by the Becket Fund, which was supporting constitutionality, and had already been doing so at the court of appeals level throughout the country. So I think we’re a unified community on this case.

MR. JOST: Are there any religious groups attacking the law?

MR. DIAMENT: I don’t think so. Because we are centralized and powerful. (Laughter.)

MR. LUPU: I think Richard alluded to this. I just want to add a word about it. The politics of this are very interesting. You know, when RFRA passed, there were overwhelming majorities for RFRA. Nobody wanted to be against religious freedom in the abstract. And the question of getting states involved and filing briefs, and who was going to attack RFRA. And it’s this little town in Texas that winds up bringing the lawsuit against RFRA; it’s not the attorney general of New York or Virginia, or California.

I remember chatting with an assistant attorney general from Virginia back when RFRA was around and he had headaches with it because there were prison lawsuits and he hated them, and he was fighting them all of the time. Even if he was winning, resources were being consumed by them. And I said, “So listen, I think RFRA may be unconstitutional; why don’t you go litigate it?” He said, “Oh, no, no, no.” He’s an elected attorney general here, like every other state, and no elected attorney general wants to take the lead and say, “Oh, this major law designed to restore religious freedom is unconstitutional.”

Now, give Ohio the credit or blame – whatever you want to give it. They have been aggressive on federalism matters generally and they were willing to take the lead on this. But the politics of opposing these statutes or litigating against these statutes – and therefore being against all religious groups unified; not just Nathan’s, not just some, but all of them unified – that is a tough political position for people in elected office to take.

MR. MASCI: Yes, sir.

YOSEFI SELTZER: Hi, I’m with the American Association of Jewish Lawyers and Jurists, and I’m an attorney. My name is Yosefi Seltzer, and I’m also former Army judge advocate. And in that context, I wanted to ask the panel – my understanding with regard to constitutional law in the military is that there is a great deference to the military in terms of good order and discipline with regard to only providing reasonable accommodation. Could there possibly be in the post-September-11th world a consideration that we should also have a similar deference with regard to running of prisons, with regard to the police power being exercised in terms of dealing with dangerous individuals – whether the Court might potentially see that as an analogy?

MR. DIAMONT: The O’Lone case was pre-9/11 and that’s what the Court decided, basically. So, you know, they can go there – it’s probably not hard for them to get there if they want to in this case, and if they want to punt on some of the other questions.

MR. LUPU: You could imagine RLUIPA being upheld against an attack on its constitutionality on its face and it being interpreted and applied in the lower courts in a very religious-unfriendly way. Yes, this is what happened to RFRA where prisoners would litigate overtime on RFRA cases and they would lose 85 or 95 percent of the time. And when they brought claims that implicated security concerns – when somebody wanted to wear their hair long -the prison officials would say, “No, you can hide weapons in long hair, you can hide weapons in a beard.”

They recognized diet claims, a number of cases involving requests for kosher meatless diets. And prison officials said, “This is going to cost us more money, it’s inconvenient.” But they couldn’t really say that it was straight-out a security concern to provide a meatless as opposed to a meat diet. But it’s not very hard for the Courts to say, “Oh, yes, there are compelling interests in prison – security interests to deny relief under RLUIPA.” And I think most of the cases are going to come out that way.

MR. MASCI: Yeah, we have time for just one more question so we’ll leave it to Marty.

MR. LEDERMAN: It’s not really a question; I wanted to add that the federal military and the federal prisons have been subject to this very standard for 12 years and the sky hasn’t fallen, in large part because the courts pay enormous deference to military and prison officials. And all that Congress is asking here is that the state prisons be subject to the same standard that the federal military and the federal prisons are subject to.

MR. MASCI: Anthony, do you want to ask the final question?

MR. PICARELLO: I just wanted to comment briefly on the politics that you were talking about as far as attorneys general being reluctant to challenge this. It seems to me that it could potentially work a little bit the opposite way. In other words, attorneys general who don’t like the myriad accommodations or even strict scrutiny standards that they have under state law because it is such a headache to them can fob off the political liability for striking that down on the courts, which is one potential reason I have been puzzling to myself, “Why is Ohio challenging this standard when it’s already the standard that applies in its state, when it’s got tons of religion-only accommodations?” And it seems that one reason might be that the politics cut the other way; it gives them some cover to avoid the fallout they might otherwise experience if they try to get those things repealed.

MR. SCHRAGGER: Let me just say one word about that, which is that the public choice story is one we don’t know, and I think that is a great point. What we do know – and I want to emphasize this, which is what Chip said – we do know that courts are going to defer wholeheartedly, at least in the prison context, to these security concerns. And I’m not sure that advances religious liberty overall if we have a statute like this that is under-enforced or even really not enforced. I think there are some problems with that.

MR. MASCI: Before we go, I just was wondering if any one of the panelists would be willing to take a stab at guessing – (scattered laughter) – whether the scenario that Mr. Lederman spelled out – that Ohio might be wishing for sort of cobbling together a disparate coalition on the Court – what the chances are of something like that happening. And also if RLUIPA is struck down, what does that mean for the land-use provisions for section two?

MR. LUPU: Well, first of all, it will be easier to figure out Kentucky Derby futures than the Court – (laughter) – so I’m not going to do that. The land use is going to turn rather entirely, I think, on the grounds. You know, if you had some sweeping Establishment Clause ground here that said Congress may not relieve burdens on religion and religion only in some contexts. Well, it’s going to be very hard to explain why land use is any different from prisons.

If on the other hand it was something to do with Spending Power or Commerce Power, or some other theory – we haven’t really talked about the details of that here – it’s imaginable that prisons look different from land use for some purposes of federal power and the question would remain for another day.

MR. SCHRAGGER: You know, I think I would be lucky to get three votes on my – (chuckles) – you know, I think Stevens – Thomas, because he started to talk about this sort of federalist aspect, may go along, and then it’s hard to say where the rest will fall. Souter has been somewhat skeptical of accommodation, so I feel like he may come over. And then you have got the folks on the federalist side, like Rehnquist and Scalia, but I don’t see them as swatting down Congress in this particular instance. And then the middle – you know, what do they do? – that’s the real question. I think they would be moving a little bit out on a limb to strike it down, but they may be willing to do that; they have done it before.

MR. MASCI: I want to thank our panel for their wonderful presentations and also for the excellent answers that they gave to your great questions. And I want to thank you all for coming and being such an excellent audience. Thank you very much.