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Monday, June 20, 2005

RLUIPA Case, ex ante

I'm going to be the first (I think) to predict the Supreme Court accepting cert for another RLUIPA case next term. Adkins v. Kaspar is a 5th Circuit case dealing with the definition of "substantial burden" in RLUIPA, defining RLUIPA's protection of religious exercise to very little. A prison in Texas places such tough restrictions on the circumstances under which the inmates can hold Sabbath services, that Mr. Adkins can only observe the Sabbath once per month. The Becket Fund filed a cert petition, and I think the Court should/will take it.

RLUIPA mandates that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability.
The Fifth Circuit, however, held that:

[A] government action or regulation does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed.
This makes absolutely no sense to me. How the Fifth Circuit excludes burdens from otherwise generally applicable statutes when the text specifically includes them is a mystery.

Employment Division v. Smith excludes generally applicable burdens from First Amendment protection. The case involved a statute denying unemployment benefits to peyote users, and the religious adherent, a Native American, tried to avoid being denied the benefits because the peyote use was a religious exercise. The "incidental" effects on religion were not enough to invalidate the law.

RLUIPA (following RFRA) is expressly intended to "overrule" Smith. The way the Supreme Court interprets the First Amendment does not protect enough religious exercise, so Congress has for the past 10 years been working on prohibiting the burdens legislatively. But, it seems, the Fifth Circuit is trying to cram RLUIPA' s protection into Smith's box.

The concern seems to be that RLUIPA is going to make all sorts of incidental burdens on religious exercise grounds for failure to comply with the statute. A fair concern. For example, the Eleventh Circuit in Midrash Sephardi dealt with the land use provision of RLUIPA where religious adherents claimed that a zoning ordinance that made them walk farther to their temple was a substantial burden. The Eleventh Circuit held that the burden of walking a little farther--not itself prohibitive or even very onerous--was not "substantial," and so the zoning ordinance did not violate RLUIPA.

In Adkins, the Fifth Circuit could not follow this reasoning and reach the result it did. Rather than just making it more difficult, Mr. Adkins is absolutely unable to hold services on Sunday. So the court stretched "substantial" to not mean a burden on the exercise, but a burden on the state in accomodating the exercise. The court, in effect, turns RLUIPA into Smith by saying that when the burden arises not from targeted discrimination, but a generally applicable statute, it is not "substantial."

Now, RLUIPA doesn't absolutely bar these burdens, and the Texas prison system could argue for a compelling state interest and narrowly tailored means. But the Fifth Circuit is definitely wrong, and this (besides the 4-way circuit split on the issue) should make the Court take the case.


Blogger Tom Goldstein said...

Someone has noted in a comment to SCOTUSblog that cert was already denied in Adkins.

10:08 AM  
Blogger Helvidius said...

Well, don't I feel stupid. Ex Post is 0-2 this week. :)

11:06 AM  

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