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In a great victory for religious liberty, the Supreme Court unanimously upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that protects prisoners' access to religious materials and programs. In Cutter v. Wilkinson, Justice Ginsburg, writing for the entire Court, found that RLUIPA was constitutional "because it alleviates exceptional government-created burdens on private religious exercise."

The Court overturned a Sixth Circuit decision that held that RLUIPA gave religious prisoners "a preferred status in the prison community" and "has the effect of encouraging prisoners to become religious in order to enjoy greater rights." The Court dismissed this reasoning with a curt statement that, "Were the Court of Appeals's view the correct reading of our decisions, all manner of religious accommodations would fall."

Justice Thomas joined in the Court's opinion, and also issued a concurring opinion setting out a clear defense of Congress's authority to defend religious practice. "History, at least that presented by Ohio, does not show that the Establishment Clause hermetically seals the federal government out of the field of religion." He cited Philip Hamburger's book, Separation of Church and State, "The Clause prohibits Congress from enacting legislation respecting an establishment of religion; it does not prohibit Congress from enacting legislation respecting religion or taking cognizance of religion."

As with many cases that are heard by the high court, the facts in Cutter did not make an attractive case for supporters of religious liberty. The plaintiffs are Ohio prisoners who hold unconventional religious beliefs. Some of them are followers of Asatru, a polytheistic religion that originated with the Vikings, and includes Thor as one of its gods. Another plaintiff is an ordained minister of the Church of Jesus Christ Christian, which espouses a belief that the races should be separated. Another is a practicing witch, and John Cutter is an avowed Satanist.

Despite the unconventional nature of the plaintiffs' beliefs, we defended their right to practice their religion, even if we do not share those beliefs. A fundamental principle of the American system is that government can, and must, permit the expression of beliefs and faith—including those that are offensive to us—while remaining neutral on the validity or appropriateness of those beliefs. This principle was so important that the founders of our Republic placed it first in our Bill of Rights.

The Court's decision is a tremendous victory for those who work to transform the lives of inmates through faith. Job training and education alone won't transform an inmate from a criminal into a law-abiding citizen. For some inmates, such programs merely make them smarter, more sophisticated criminals. Justice Fellowship and Prison Fellowship have worked very hard to protect access of inmates to religious activities and programs. We worked hard to pass RLUIPA and signed an amicus brief filed in support of RLUIPA by the Coalition for the Free Exercise of Religion.

Most people assume that faith is encouraged in prison. I certainly thought so when I was in the legislature. Yet, when I was incarcerated, I found the opposite was true. Some prisons restrict inmates' access to Bibles, or prohibit inmates from having concordances or biblical commentaries. Others prohibit inmates from wearing small crosses or yarmulkes, or limit inmates to participating in only one religious program a week, forcing them to choose between Bible study and worship services. While many prison officials are supportive of religious programs in their prisons, others view it as extra work, and often raise bureaucratic roadblocks to discourage religious volunteers.

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June (Web-only) 2005, Vol. 49