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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 ...

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June 2005

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