Cutter v. Wilkinson Arguments

So, I went to the Cutter arguments today. Very fun. And, thanks to my professor who took us, we hung out with Justice Breyer, acting Solicitor General Paul Clement, and Ohio Solicitor General Doug Cole after the arguments.

For background on Cutter, see The Becket Fund's summary. The issue is whether the Religious Land Use and Institutionalized Persons Act impermissibly establishes religion by giving prisoners a preferred status in the prison community in that it requires that prisoners receive literature and are allowed to conduct religious services. There are also spending clause and commerce clause challenges, but they seemed very secondary to the establishment clause issue.

The Chief was there, as I'm sure everyone has heard. He seemed very lively, asked (by my count) 5 questions, even made a crack about mormons. :) Here is a very rough sketch of the questions and answers, I'll post later on some of my thoughts.

Justice O'Connor was first concerned with the ever-present slippery slope argument regarding the establishment clause. If we let these prisoners have preferences, what happens when prisoners come with all sorts of desires saying they are based on religion. Must we grant their wishes?

The answer from Clement was that the compelling state interest analysis built into RLUIPA involves a balancing test where those requests that would involve something that the state had a compelling interest in preventing, RLUIPA would not mandate the allowance.

The next (interesting) question was from Justice Ginsburg, asking what if the religious symbol was also a sign for a gang.

The answer was that there would be deference to the prison wardens in these situations. Doug Cole (SG from Ohio) noted later that this deference is nowhere found in the statute. An interesting point, compelling state interest and narrowly tailored means sounds like these situations are going to undergo very searching review.

This was a common concern, raised in a number of different contexts. The answer was always deference and compelling state interest analysis.

Justice Ginsburg raised the issue with regard to racism: what if a certain religion required separation from another race? The answer was made particularly easy because of the recent ruling in Johnson v. California, which I blogged on here. I thought this case was particularly important to todays arguments. I'll post on this later.

Judge Souter's questions were absolutely great. They took issue with the idea that there must be some space in between free exercise protection and what is barred by the establishment clause. He accused Ohio of cutting back on this room, and making any "accomodation" of religion automatically barred, or at least serverely scrutinized, by the establishment clause. Ohio did not have a very good answer for this, and Souter pushed and pushed on it.

The only answer from Ohio was that some accomodations would be permissible, while others would not. Making Kosher meals available is not as radical or burdensome as some of the accomodations provided to the prisoners in this case. I think there is an interesting substantiality issue with the overbreadth challenge. I'll post on this later as well.

There was some discussion of congress forcing a return to pre-Smith jurisprudence, but this didn't really go anywhere because since Congress did not enact the statute under Section 5 of the Fourteenth Amendment, a City of Boerne-type challenge wouldn't make any sense. Congress can ratchet up rights all it wants if it doesn't need Section 5.

The Spending Clause and Commerce Clause was given almost ZERO attention. This was, according to Doug Cole, (who we also got to hang out with afterward) too bad, because he was hoping to get to discuss the federalism issues. These issues were discussed very heavily in the briefs, but the Justices didn't seem to care.

That's all for now. Very interesting case. More to come.