What Does Cutter Mean for Creationism?

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The Supreme Court today ruled in a case called Cutter v. Wilkinson that the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) does not violate the First Amendment. This decision is the latest step in a back-and-forth between Congress and the Supreme Court over the degree to which the federal government can give religious groups special accommodations. Below, I’ll explain the history of the case, and its holding, and then why it’s important to the evolution/creationism controversy.

Back in 1990, the Supreme Court decided a case called Employment Division v. Smith, 494 U. S. 872 (1990). There, the Court declared—correctly, in my opinion—that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982)). In other words, if the government makes a general rule (say, a rule forbidding people to wear hats) and the rule is not a disguised attempt at clever religious persecution, then the law is not unconstitutional under the Free Exercise Clause simply because it forbids, e.g., Hindus from wearing turbans.

This decision did not please some people, who believe that the Free Exercise Clause does require some degree of “accommodation”—some degree of special exemptions for people whose religious beliefs forbid or require behavior in ways that might conflict with the law. And there are several cases in which the Supreme Court had sided that way. For instance, in Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that the Free Exercise Clause was violated when a woman was denied unemployment benefits because she refused to work on the Sabbath. And in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that states could not require Amish children to attend school beyond the eighth grade, because doing so conflicted with Amish religious belief. In these cases and others, the Court had held that when a generally applicable, non-discriminatory law (you must work on Saturday; you must send your kids to school) conflicts with a religious belief, that the First Amendment barred such a law. But in Smith—where the plaintiffs were Native Americans who smoked peyote for religious reasons, and were fired from their jobs at (of all places) a drug rehab center, and then were denied unemployment benefits as a result—the Supreme Court held that the Free Exercise Clause did not bar that general law against drug use.

In response to Smith, Congress passed a law called RFRA—the Religious Freedom Restoration Act—which declared that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except...if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” By requiring government to prove a “compelling governmental interest” and a “least restrictive means” whenever it “substantially burden[ed]” a person’s exercise of religion, Congress was effectively restoring the Sherbert and Yoder understanding of the Free Exercise Clause. It placed the burden of proof on government to justify its barring religious acts. Congress claimed that it had authority to pass this statute under section 5 of the Fourteenth Amendment. That section gives Congress the authority to enforce the Fourteenth Amendment—which protects citizens’ rights to due process of law, equal protection of the laws, and the privileges or immunities of citizenship—by “appropriate legislation.”

But in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that RFRA was not “appropriate legislation,” so that the law was beyond Congress’ powers under section 5 of the Fourteenth Amendment. RFRA wasn’t appropriate legislation, the Court said, because when Congress uses its section 5 powers to remedy a perceived harm to the rights protected by the Fourteenth Amendment, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,” id. at 520, and RFRA was not “congruen[t] and proportional[]” to remedying the perceived harm of religious burdens: “Even assuming RFRA...mandate[d] some lesser [burden of proof on the government]...the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.” Id. at 534. I disagree with this, but it is the law.

In reaction to Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), a law similar to RFRA, but applicable only to land-use regulation (zoning, for instance, or building permits) and to burdens on the religious exercise of people in prison. It holds that neither the states nor the federal government “shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person,” unless the government proves that the burden is “in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” It also holds that the government may not “impose a substantial burden on the religious exercise of a person residing in or confined to [a penal] institution,” without proving the same things.

Obviously, there was much debate over where RLUIPA was constitutional. In Cutter, the Supreme Court has unanimously held that it is.

The biggest problem with “accommodation” of religion is that it is easy for “accommodation” to become endorsement—and hence, to violate the Establishment Clause. If the government allows a Hindu to wear his turban in spite of a ban on headwear (which the government could do, but is not required to do, under the Free Exercise Clause), would that constitute government endorsement of Hinduism, which would violate the Establishment Clause? In many cases, such special exceptions would convey a message of government endorsement. So in Cutter, RLUIPA was challenged as a violation of the Establishment Clause.

The Court explained that the Establishment Clause was not violated because it only “alleviates exceptional government-created burdens on private religious exercise.” It does not grant special benefits, it only reduces an imposed burden: “[T]he ‘exercise of religion’ often involves not only belief and profession but the performance of...physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine.... [RLUIPA] covers state-run institutions–mental hospitals, prisons, and the like–in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise.... RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” (citation and quotation marks omitted). The Court pointed out that the military makes similar accommodations for religious practice:

In Goldman v. Weinberger, 475 U.S. 503 (1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, “there is simply not the same [individual] autonomy as there is in the larger civilian community.” Id., at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that “a member of the armed forces may wear an item of religious apparel while wearing the uniform,” unless “the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative.”

If the Court were to hold that RLUIPA was unconstitutional, “all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail...as would...Ohio[’s policy of] provid[ing] inmates with chaplains....”

Also, RLUIPA doesn’t distinguish between different religions: Wiccans and Christians are treated identically. To the argument that the law nevertheless benefits religion in general over the lack thereof, the Court replied:

[it is true that] an irreligious prisoner and member of the Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated [differently than would]...a member of the Church of Jesus Christ Christian challenging a similar withholding.... [But] Courts...may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order.

This argument introduces what I think is the most startling aspect of Cutter: it holds, essentially, that the “compelling interest/least restrictive means” burden imposed by RLUIPA is really just no big deal, because Strict Scrutiny isn’t what it used to be:

We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.... We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard...“[c]ontext matters” in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003).

Grutter, of course, was the decision in which the Supreme Court held, astonishingly, that strict scrutiny did not bar the Court from “deferring” to administrators of a law. In other words, so RLUIPA requires a “compelling government interest,” but after Grutter, anything pretty much goes as a compelling interest, so what’s the problem?

The Court nowhere explains why RLUIPA survives in Cutter why RFRA failed in Boerne. What one gathers from the opinion is that RFRA was unconstitutional because it essentially created new rights for people who were not facing the sort of burdens on their rights that prisoners face; while RLUIPA only relieves persons in government custody from the burdens imposed on them by otherwise harsh disciplinary regimes. But this distinction lacks any solid legal foundation. Members of the military are not in government custody in the same way that prisoners are, so the analogy to the military fails, and arguing that X must be constitutional because otherwise Y would be unconstitutional also is an illogical (but, for the Supreme Court, extremely common) argument. And in the pervasive regulatory welfare state, in which even a minor construction project can require extensive government permitting and licensing, it seems silly to suggest that RFRA did anything less than RLUIPA with regard to “easing burdens imposed by government.” (Of course, the Court rejected that argument in Locke v. Davey, 540 U. S. 712 (2004).)

The success of RLUIPA against an Establishment Clause challenge—and particularly the military analogy in the Cutter decision—can be expected to encourage creationism activists. Those who wish to require “equal time” or other such things in government classrooms will see an opportunity to argue that requiring “equal time” or textbook disclaimers is nothing more than a reducing of the burden imposed on persons in government custody. In the appeal of the Cobb County case—in which the school board placed a disclaimer on biology textbooks telling kids “hey—wink, wink—nudge, nudge—evolution isn’t true, but they force us to teach it to you”—the creationists are making a very similar argument. We can expect proposals like the Santorum Amendment to be strengthened by the argument that Cutter removes any Establishment Clause problems with such proposals.

Of course, this decision was only a “facial” challenge—meaning that the plaintiffs argued that RLUIPA could never be constitutional under any circumstances whatsoever, and such challenges rarely succeed. In the future, “as applied” challenges might narrow RLUIPA significantly. Also, this was only an Establishment Clause case. A future case might find RLUIPA invalid under some other Constitutional provision. But Cutter is a victory for religious activists who seek to grant special favors to religion.

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Today, the Supreme Court today ruled in Cutter v. Wilkinson that the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) does not violate the First Amendment. Over at the Thumb, Tim Sandefur provides an analysis and discusses th... Read More


Nothing like a post on constitutional law to make a guy with multiple degrees in sciences feel just plain dumb.

I’m sorry about that. The issues really are actually simpler than the technical language makes them seem. It all comes down to: if government makes a rule, and that rule conflicts with a person’s exercise of religion, does the First Amendment make that rule unconstitutional? That’s a problem that has dogged the United States government since its inception. Quakers, for instance, who believe it is immoral to participate in a war. Government passes a draft law–does that violate the First Amendment? The rule in the Smith case is: no, a general law applicable to everyone that isn’t a disguised attempt to attack a religion, holds, even when a person’s religious beliefs might conflict with it. I believe this is the right rule, but, as with all rules, there are complications: what about the no-hats rule, as applied to Hindus and Muslims? What about a law forcing people to send their kids to school, as applied to the Amish? None of these issues are easy. So then when Congress tries to solve some of these problems by saying “okay, no hats rules are okay, but when it affects a Hindu, the government has to meet a higher standard of proof to justify that rule”–then what? Does such a special exception violate the Establishment Clause? Or other clauses?

It can get complicated, then, because there are so many cases and so many “tests,” but at bottom, the issues are the same.

If this just makes things more confusing, check out my Guide for the Perplexed.

Ah, finally an area in which us non-scientists can pontificate.

The Rhenquist court has always preferred to decide cases on an individual basis, rather than making the kind of sweeping, universally applicable decisions that one might find from the Warren Court or, most famously, the Marshall Court during the beginning of the 19th century. While this is good in some respects, in that they avoid political flashpoints like Roe or Brown, and avoid making truly stupid rulings like Dredd Scott, Plessy, or Korematsu, it does unfortunately have a tendency to create rulings that seem to be in direct contrast to rulings issued even recently. There is little thought given to controlling precedent with this court, and several justices, such as Thomas, have specifically stated that they do not believe in the principle of stare decisis, that precedent should be controlling legal doctrine.

Anyways, the point of this is that the court decided this case very narrowly, which is why it seems to contradict Boerne. This reminds me of some of the Depression-era decisions that seemed to contradict each other, which boiled down to such inane issues as whether there was a difference between white or yellow oleomargarine.

This decision was designed specifically to apply to the law at hand, which specifically applied to prisons and zoning regulations. It said that the government cannot deny a prisoner their rights to free exercise, and while I have not read the complete opinion, it strikes me that this is not an establishment clause issue. The opinion also stated that restricting prisoners’ right to religious expression would be acceptable if the government can show a pressing reason why it would be necessary, for instance if it would cause massive disruption. So yes, the government probably could prevent followers of Santeria from sacrificing live animals in prison, as this could be quite disruptive, and similarly would probably shut down a religious service if the sermon given was inciting violence.

I actually view this as a slap against Christian Fundamentalism, as the people most helped by this decision are those who practice minority religions in prison and who would therefore be most at risk of having an overzealous warden deny them the right to worship Satan, or Vishnu, or Gaia. In fact, some of the respondents in this suit were followers of Satanism and Wicca, who alleged that this law was necessary to guarantee them the right to worship as they chose.

Now yes, I could see an enterprising DI lawyer arguing that this ruling, combined with Tinker and Gobitis, might then require schools to teach theistic alternatives to evolution, or at least prevent the teaching of evolution entirely, but I highly doubt this. For starters, the difference between schools and prisons is immense. Secondly, this ruling doesn’t eviscerate the establishment clause, it merely states that there is no conflict with the establishment clause in this particular situation because the government is not endorsing any particular religious establishment, or even religion in general, and it is not requiring any religious test or religious belief. Rather, the ruling is simply that it is perfectly constitutional for a law to require prisons to allow inmates to worship provided that it causes no significant disruption.

While no doubt certain blogs which shall go unnamed may attempt to tout this decision as a major blow to “materialistic atheism” or whatever the hell they’re calling it now, it is simply not true. That argument may play to the public, but even an undergrad pre-law student will be capable of seeing that it’s not gonna fly in court.

In fact, the only situation in which this might apply to schools would be to say that this ruling, combined with Tinker, means that schools cannot stop a student from wearing a religious symbol, so long as it is not destructive…such as a yarmulke or a crucifix necklace. However, because a school is not the same as a prison, and placing some limits on religion in school does not prevent these students from practicing their religion at home, whereas prisoners are under state control full-time, and because this ruling applied to the ability of Congress to grant inmates broad individual rights rather than the ability to impose specific religious beliefs, I really do not believe that even the ghosts of Clarence Darrow and Thurgood Marshall could make this apply to ID and evolution…not that they would want to anyways, of course.

(Psst… You might want to replace the word “Hindu” in the original post with the word “Sikh” before someone points it out.)

Sort of related


A Kentucky judge has been offering some drug and alcohol offenders the option of attending worship services instead of going to jail or rehab – a practice some say violates the separation of church and state.

District Judge Michael Caperton, 50, a devout Christian, said his goal is to “help people and their families.”

“I don’t think there’s a church-state issue, because it’s not mandatory and I say worship services instead of church,” he said.

I have no idea what that last statement means.

But I wonder: what happens if the church or prison preacher preaches “inflammatory anti-gay rhetoric? How does that square with the Supremes

[it is true that] an irreligious prisoner and member of the Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated [differently than would]…a member of the Church of Jesus Christ Christian challenging a similar withholding.… [But] Courts…may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order

Subsititute anti-gay for “racist” … in my mind, it still works.

So it appears to me that certain aspects of contemporary evangelical Christian preaching may be constitutionally denied under the RLUIPA.

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I’m confused. I don’t see how how allowing religious dress in government institutions or similar individual allowances would open the door to putting nasty little stickers on all the schoolkids’ textbooks, or teaching entire classrooms religiously based pseudoscience. I don’t see how this measure could possibly be an endorsement of religion. As far as creationism is concerned, it doesn’ look like it would even necessarily allow a fundie kid to leave a biology class because they are discussing evolution; having someone learn a theory does not violate that person’s religious rights, only his right to be ignorant.

having someone learn a theory does not violate that person’s religious rights, only his right to be ignorant.

The Supremes seem most interested in protecting the fundamental right of parents to keep their children shielded from facts (i.e., ignorant) and (presumably) less inclined to question the inerrancy of religious doctrine.

But if you are confused, Harq, trust me: you’re not alone! The confusion will not end until the nearly absolute rights of American parents with respect to the religious indoctrination of their children is revisited. We’ll likely have to wait until Civil War II is ended before that happens so don’t hold your breath …

Unfortunately, while I do appreciate the understanding on Cutter, I think it is likely to be a moot point.

First off, the proponants of ID are doing what they can to declare that their “theory” is scientific and not religious. Because of this they cannot logically state a need for “religious accomodation”.

But what happens if they change tactics and admit to ID being a religious “theory”? Then they fall back on being akin to “creation science”, in which precedence would make it clear that it would fail in the courts. In this case, it would be a clear case of establishment to put it into the schools.

They lose either way.

This really seems to be a stretch. Ginsberg wrote the unanimous opinion and organizations all across the political spectrum support this. The interest amongst Evangelicals dealt more with the zoning part anyway. Baptist Richard Land supported this because he recognized that the first test cases would be at the fringes.

“When we are tempted to limit religious freedom rights because of the odious and extreme nature of the religious practitioners whose free exercise rights are being challenged, we should always remember that what we allow the government to do to one group today, it can do to other groups tomorrow,” Land told Baptist Press. “It is always at the margins of radical or extreme faith that such religious freedoms are tested and restricted by governments.”

I’m confused about the problem with RFRA type legislation.

It seems that ordinarily, legislators are entitled to enforce arbitrary rules of conduct without justification, eg. no hats, which is more or less ok because on average people are damaged equally (everybody is damaged to some extent by the cretins they elect).

But in the case of conflict with religious practice RFRA (recognising the special anguish) forces justification of that rule. So, if a religionist claims an unfair right such as driving down the wrong side of the road, the rule is justified and no endorsement is given.

But if a religionist is granted the right to wear a hat, then you can’t prove endorsement unless you demonstrate a reason for hatlessness (viz. you are granted unfair advantage over or damage to everyone else), in which case the right won’t be granted anyway. So no proven endorsement can occur and RFRA apparently doesn’t conflict with prohibition of endorsement.

The only problem I can see is that people could create arbitrary religions to avoid irrational prohibitions/requirements, and the system currently assumes a natural right for democratically elected legislators to create irrational law.

“We’ll likely have to wait until Civil War II is ended before that happens so don’t hold your breath … “

hmm. if you think about it, even if a real civil war was fought over the current “culture war”, there could be no practical end result like that of the first civil war, as far as i can see.

this is not an issue over economics and physical slavery, but rather over pure ideology (and those taking advantage of it for personal gain). If you look at the south, you can see a lot of the ideology remains as a continuing undercurrent, even to this day (you see it cropping up from time to time in arguments about flags, as just one example).

while it is frustrating in the extreme to see good scientific progress denigrated by those with an obvious lack of understanding, or even malicious intent, I can’t see how the issue could ever be resolved with an actual armed conflict.

reliance on the rule of law, promotion of open and honest politics, and good education are the only weapons that seem logical in this “war”. Unfortunately, all three seem to be under attack these days.

there is no guarantee that logic and science will prevail.

By demonstrating the absolute economic value and practicality of good science, we can influence many politicians favorably, but those of extreme ideologies (Sanctorum comes to mind) will not be convinced, even with that. Others are already convinced that economics are meaningless, since we are the lone remaining superpower.

By showing the value of good science as an explanatory medium, we can convince many parents that science can and does work wonders to explain the world around us in very satisfying terms.

By showing kids that science can be fun (evidently, according to several news reports lately, science is “boring”), we can establish fertile grounds for better education in good science.

I personally, can’t see any other way to deal with this issue. IMO, only the dedication and hard work by scientists themselves in demonstrating the value of science along these lines will work, as our elected representatives have sorely let us down of late.

We can crush these folks in court so long as the courts supports scientific value. However, in case those watching hadn’t noticed, that is changing rapidly. Bush is packing the courts with ideologues, and there is little the dems can do about it.

some states have already begun discussions about “weakening” the role the courts play in interpreting state law.

so far, that hasn’t resulted in much… but who’s to say that won’t change? four more years of ultra right wing republican power grabs could easily result in major changes in standards accross the board.

“bah, it won’t affect me”, i keep hearing from many professor acquaintances i have, but they always seem to forget where most of their funding comes from, and also what quality of graduate students they can expect in the future.

I myself see a pretty bleak future if things keep going the way they seem to be, with a few bright spots like PT and the fact that NSF is finally getting off their butt and trying to fund better education:


OTOH, if anyone can figure out how to win this fight via convential armed conflict, count me as a conscript ;)

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The Court nowhere explains why RLUIPA survives in Cutter why RFRA failed in Boerne.

RFRA failed because the Supremes could not find a positive power for Congress to enact that law. They never said that it violated the Establishment Clause. They did not need to decide that question since they struck down the law anyway. (I think that Justice Steven wanted to strike down RFRA on Establishment grounds. He could have some explaining to do.) RFRA is still enforced in federal enclaves and the Supreme Court has never ruled on whether it is unconstitutional. In this case the Supreme Curt only determined whether the Establishment Clause was violated. They cantill find that it exceeds Congress power to enact such a law.

Mr. Sandefur is, of course, correct that this decision has implications for teaching creationism in the public schools. Here’s the payoff line for the creationists:

RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.

Change that to read

[The Free Exercise clause] thus protects [public schoolchildren] who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.

and you’ve got one of the leading arguments in forthcoming creationist legal briefs.

While there are obvious factual and legal distinctions between prisoners and schoolchildren, those distinctions won’t keep the creationists from arguing that Cutter is controlling – e.g., “mandatory attendance laws compel schoolchildren to attend school, just as penal laws compel prisoner incarceration.” It’s a lousy argument, but the strength of an argument (or lack thereof) is of little concern to the creationists. I’ve not made the Internet rounds, but look for Cutter to be touted on a creationist website near you soon.

Rich writes that the difference between RFRA and RLUIPA was that RLUIPA was an exertion of the Commerce Clause or Spending Clause power, while RFRA was an attempted exertion of section 5 of the Fourteenth Amendment. The problem with this is that the Court nowhere addresses the validity of RLUIPA as a Commerce or Spending act. Only Justice Thomas does, saying thrice (and rightly) that RLUIPA probably exceeds both of these powers. I think, actually, that section 5 provides a far stronger basis for Congressional power to enact laws like RLUIPA. But none of these questions is raised or addressed in Cutter.

This is not the only test case for RLUIPA. Elsinore which is currently in interlocatory appeal in the Ninth Circuit looks likely to test the commerce and spending act issues. If it does hit SCOTUS don’t expect a unanimous ruling.

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This page contains a single entry by Timothy Sandefur published on May 31, 2005 1:58 PM.

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