Jon B. Cutter; J. Lee Hampton v. Reginald Wilkinson

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0397P (6th Cir.)
File Name: 03a0397p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 02-3270
JON B. CUTTER; J. LEE
HAMPTON,
Plaintiffs-Appellees,
UNITED STATES OF AMERICA,
Intervenor-Appellee,
v.
REGINALD WILKINSON;
DAVID SCHWARTZ; NICHOLAS
G. MENEDEZ; L. C. COVAL; K.
L. BROWN; GEORGE D.
ALEXANDER; DIANNE
WALKER; JIM ERWIN; RON
CARN EIN; RUDY PRINGLE;
WALTER LOWERY,
Defendants-Appellants.
No. 02-3299
JOHN MILLER, et al.,
Plaintiffs-Appellees,
UNITED STATES OF AMERICA,
Intervenor-Appellee,
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Nos. 02-3270/
3299/3301
2 Cutter et al. v. Wilkinson
et al.
Nos. 02-3270/3299/3301
v.
REGINALD WILKINSON;
DAVID SCHWARTZ; TERRY
COLLINS; CHERYL HART;
CHARLES R. GRIFFIN;
CHARLES GRIFFIN, Chaplain,
Defendants-Appellants.
No. 02-3301
JOHN W. GERHARDT,
Plaintiff-Appellee,
UNITED STATES OF AMERICA,
Intervenor-Appellee,
v.
ALAN LAZAROFF, Warden;
KENNETH BYERS; DON
WILSON; MARY HENDERSON;
SHERRY WILLIAMSON;
KRISTINA HACKETT; STEVEN
WEINGART; RON CLIFTON;
ROBERT ENGLUND; CHARLES
CONRAD; STACHA DOTY;
JACK TAYLOR; WILLIAM
BLANEY; CAROL MART IN;
JUNE COLEMAN; DAVE
MORRIS; VANCE YORK;
SUSAN COOLIE; STEPHA NIE
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Nos. 02-3270/3299/3301 Cutter et al. v. Wilkinson
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*The Honorable Arthur J. Tarnow, United States District Judge for
the Eastern District of Michigan, sitting by designation.
WALKER; RACHEL
HETTINGER; KENNETH E.
MCDONALD,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00382; 98-00275; 95-00517—James L. Graham,
Edmund A. Sargus, Jr., District Judges.
Argued: September 10, 2003
Decided and Filed: November 7, 2003
Before: MOORE and GILMAN, Circuit Judges;
TARNOW, District Judge.*
_________________
COUNSEL
ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY
GENERAL, Columbus, Ohio, for Appellants. David A.
Goldberger, OHIO STATE UNIVERSITY COLLEGE OF
LAW - CLINICAL PROGRAMS, Columbus, Ohio, Michael
S. Raab, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Todd R.
Marti, OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. David A. Goldberger,
OHIO STATE UNIVERSITY COLLEGE OF LAW -
CLINICAL PROGRAMS, Columbus, Ohio, Michael S. Raab,
Mark B. Stern, UNITED STATES DEPARTMENT OF
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Nos. 02-3270/3299/3301
JUSTICE, Washington, D.C., for Appellees. Marc D. Stern,
AMERICAN JEWISH CONGRESS, STEPHEN WISE
CONGRESS HOUSE, New York, New York, for Amici
Curiae.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Plaintiffs in
these three consolidated cases are Ohio prisoners who
contend, among other claims, that various Ohio corrections
officials have violated the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc–2000cc-5. The defendant officials filed motions to
dismiss the RLUIPA claims, challenging the constitutionality
of 42 U.S.C. § 2000cc-1, the section of the Act that applies to
institutionalized persons. Their motions were denied by the
district court. In this interlocutory appeal, defendants contend
that RLUIPA (1) exceeds Congress’s powers under both the
Spending and Commerce Clauses, (2) violates states’ rights
under the Tenth Amendment, and (3) improperly advances
religion in violation of the Establishment Clause of the First
Amendment. For the reasons set forth below, we agree that
the portion of RLUIPA that applies to institutionalized
persons—specifically, 42 U.S.C. § 2000cc-1—violates the
Establishment Clause. We therefore REVERSE the district
court’s denial of defendants’ motions to dismiss and
REMAND the case for further proceedings consistent with
this opinion.
I. BACKGROUND
A. Factual background
Because this appeal involves a facial challenge to RLUIPA,
the facts of the individual cases are not particularly relevant.

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The prisoners in all three cases generally allege that officials
with the Ohio Department of Rehabilitation and Corrections
(ODRC) violated RLUIPA by refusing to accommodate the
prisoners’ religious beliefs and practices. Defendants, on the
other hand, contend that RLUIPA has allowed inmate gangs
to claim “‘religious’ status in order to insulate their illicit
activities from scrutiny.”
What is relevant to this case is the history and substance of
RLUIPA. In 1990, the Supreme Court held that the United
States Constitution does not require that government have a
compelling state interest in order to enact a law of general
applicability that incidentally burdens the exercise of religion.
Employment Div., Dept. of Human Res. v. Smith, 494 U.S.
872 (1990). Congress responded in 1993 by enacting the
Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§§ 2000bb—2000bb-4. RFRA required that any
governmental attempt to “substantially burden” the exercise
of religion must be the least restrictive means of furthering a
compelling state interest. 42 U.S.C. § 2000bb-1(b). The
Supreme Court held RFRA unconstitutional insofar as it
applied to states and localities because the statute exceeded
Congress’s powers under the Fourteenth Amendment. City of
Boerne v. Flores, 521 U.S. 507 (1997).
Congress reacted to Boerne by passing RLUIPA in 2000.
RLUIPA has the same substantive standard as RFRA. It
provides, in relevant part, that “[n]o government shall impose
a substantial burden on the religious exercise of a person
residing in or confined to an institution” unless the burden “is
in furtherance of a compelling governmental interest” and “is
the least restrictive means” of furthering that interest. 42
U.S.C. § 2000cc-1(a). The Act defines “religious exercise”
as “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” 42 U.S.C. § 2000-
cc5(7)(A). RLUIPA’s requirement of strict scrutiny stands in
sharp contrast to the Supreme Court’s previous decisions,
which have held that the courts should apply a rational-
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relationship review to restrictions upon inmates’ fundamental
rights. See Turner v. Safley, 482 U.S. 78 (1987) (applying the
rational-relationship test to prison rules regulating prisoner
correspondence and marriage); O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987) (applying the rational-relationship test to
prison rules regulating prisoners’ religious exercise).
Congress enacted RLUIPA pursuant to its powers under the
Spending Clause, U.S. Const. art. I, § 8, cl. 1, and the
Commerce Clause, U.S. Const. art. I, § 8, cl. 3. RLUIPA
applies where “the substantial burden [on religious exercise]
is imposed in a program or activity that receives Federal
financial assistance.” 42 U.S.C. § 2000cc-1(b)(1). The Act
is also applicable where “the substantial burden affects, or
removal of that substantial burden would affect, commerce
with foreign nations, among the several States, or with Indian
tribes.” 42 U.S.C. § 2000cc-1(b)(2).
RLUIPA creates a private right of action. Any person may
“assert a violation of this chapter as a claim or defense in a
judicial proceeding” and may obtain “appropriate relief
against a government.” 42 U.S.C. § 2000cc-2(a). The United
States may also seek injunctive or declaratory relief to enforce
the statute. 42 U.S.C. § 2000cc-2(f).
RLUIPA’s congressional sponsors specifically noted that
they expected federal courts to respect the decisions of prison
officials as to what restrictions on the exercise of religion are
necessary in the prison context. A joint statement to the
Senate expressed the sponsors’ belief that federal courts
would “continue the tradition of giving due deference to the
experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain
good order, security, and discipline, consistent with
considerations of cost and limited resources.” Statements of
Senators Hatch and Kennedy, 146 Cong. Rec. S7774-01,
S7775 (2000).

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B. Procedural background
The plaintiff prisoners brought suit against various Ohio
corrections officials based upon claims arising under the First
and Fourteenth Amendments. RLUIPA went into effect after
suit was filed, causing plaintiffs to amend their complaints to
include claims under the Act. Defendants then filed motions
to dismiss the RLUIPA claims, arguing that the Act was
unconstitutional. (All references to RLUIPA are to 42 U.S.C.
§ 2000cc-1 only, the portion of the Act that applies to
institutionalized persons.) The United States intervened to
defend the constitutionality of the Act. All three cases were
consolidated in order to adjudicate the motions to dismiss at
the same time.
On August 27, 2001, the magistrate judge filed a Report
and Recommendation, which concluded that the statute was
constitutional and recommended that the district court deny
defendants’ motions to dismiss. The district court entered an
opinion and order adopting the Report and Recommendation
on February 25, 2002. Approximately a year and a half later,
on August 4, 2003, the court certified its February 25, 2002
order for immediate appeal pursuant to 28 U.S.C. § 1292(b).
The parties then filed a joint petition for leave to appeal with
this court on August 6, 2003, within the 10-day time limit
imposed by the statute. We have previously granted the
petition for leave to appeal.
II. ANALYSIS
A. Lineup of the courts
The Supreme Court has not yet considered the
constitutionality of RLUIPA. Justice Stevens, however, in his
concurring opinion in Boerne, concluded that RLUIPA’s
predecessor, RFRA, violated the Establishment Clause:
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In my opinion, the Religious Freedom Restoration Act of
1993 (RFRA) is a “law respecting an establishment of
religion” that violates the First Amendment to the
Constitution. . . . [T]he statute has provided [religious
organizations] with a legal weapon that no atheist or
agnostic can obtain. This governmental preference for
religion, as opposed to irreligion, is forbidden by the
First Amendment.
Boerne, 521 U.S. at 536-37 (1997) (Stevens, J., concurring).
Two circuits, without reference to Justice Stevens’s
concurring opinion, have come to the opposite conclusion
regarding the constitutionality of RLUIPA. See Charles v.
Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003);
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).
Furthermore, five circuits, including the Seventh and Ninth,
have concluded that the identical operative language in RFRA
does not violate the Establishment Clause. See In re Young,
141 F.3d 854, 863 (8th Cir. 1998); Mockaitis v. Harcleroad,
104 F.3d 1522, 1530 (9th Cir. 1997); Sasnett v. Sullivan, 91
F.3d 1018, 1022 (7th Cir. 1996), vacated on other grounds,
521 U.S. 1114 (1997); EEOC v. Catholic Univ. of Am., 83
F.3d 455, 470 (D.C. Cir. 1996); Flores v. City of Boerne, 73
F.3d 1352, 1364 (5th Cir. 1996), rev’d on other grounds, 521
U.S. 507 (1998). Two district court opinions, in addition to
the one below, have also concluded that RLUIPA is
constitutional. See Johnson v. Martin, 223 F. Supp. 2d 820
(W.D. Mich. 2002); Charles v. Verhagen, 220 F. Supp. 2d
955 (W.D. Wis. 2002), aff’d, No. 02-3572 (7th Cir. Oct. 30,
2003).
Against this apparent juggernaut of circuit and district court
opinions stand two district court decisions that reach the
opposite conclusion. One is Madison v. Riter, 240 F. Supp.
2d 566 (W.D. Va. 2003) (Turk, J.), and the other is Kilaab Al
Ghashiyah (Khan) v. Dep’t of Corrections, 250 F. Supp. 2d
1016 (E.D. Wis. 2003) (Adelman, J.), overruled by Charles

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v. Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003). Both are
remarkably well-worded and persuasive opinions that clearly
set forth the history of RLUIPA, the analytical basis for
concluding that RLUIPA violates the Establishment Clause,
and the unpersuasive nature of the contrary opinions. Indeed,
our own analysis can (and will) be considerably streamlined
by repeated references to Madison and Ghashiyah.
(Inexplicably, the Seventh Circuit in Charles makes no
reference to either of these district court opinions.)
B. RLUIPA violates the Establishment Clause because
it favors religious rights over other fundamental
rights without any showing that religious rights are at
any greater risk of deprivation
The Establishment Clause of the First Amendment to the
U.S. Constitution states: “Congress shall make no law
respecting an establishment of religion.” Neutrality is the
fundamental requirement of the Establishment Clause, which
prohibits government from either endorsing a particular
religion or promoting religion generally. Bd. of Educ. of
Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703
(1994) (“[A] principle at the heart of the Establishment
Clause [is] that government should not prefer one religion to
another, or religion to irreligion.”); see also Ghashiyah, 250
F. Supp. 2d at 1021 (collecting cases that discuss the
neutrality requirement).
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme
Court articulated a three-part test to determine whether a
statute violates the Establishment Clause. A statute (1) “must
have a secular legislative purpose,” (2) “its principal or
primary effect must be one that neither advances nor inhibits
religion,” and (3) it must not create “excessive government
entanglement with religion.” Id. at 612-13 (internal quotation
marks and citations omitted). The Supreme Court suggested
a modification to the Lemon test in Agostini v. Felton, 521
U.S. 203, 232-35 (1997), in the context of considering the
10 Cutter et al. v. Wilkinson
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constitutionality of government aid to parochial schools,
where the Court proceeded to analyze entanglement under the
effect prong rather than as a separate factor. Based upon our
precedent of applying the Lemon test other than in aid-to-
education cases, however, we will proceed with the traditional
three-part Lemon analysis. See, e.g., Adland v. Russ, 307 F.3d
471, 479 (6th Cir. 2002) (applying the Lemon test to decide
that a Kentucky legislative resolution directing the state to
move a Ten Commandments monument to a permanent site
on the state capitol grounds violated the Establishment
Clause).
1. The purpose of RLUIPA
“The purpose prong of the Lemon test asks whether
government’s actual purpose is to endorse or disapprove of
religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987)
(quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984)
(O’Connor, J., concurring)). Lemon’s requirement of a
secular purpose “does not mean that the law’s purpose must
be unrelated to religion . . . .” Corp. of the Presiding Bishop
of the Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327, 335 (1987). Instead, the purpose prong “aims
at preventing the relevant governmental decisionmaker . . .
from abandoning neutrality and acting with the intent of
promoting a particular point of view in religious matters.” Id.
In Amos, the Supreme Court considered whether Congress
had violated the Establishment Clause by exempting religious
organizations from Title VII’s prohibition against religious
discrimination in employment. Amos held that “it is a
permissible legislative purpose to alleviate significant
governmental interference with the ability of religious
organizations to define and carry out their religious
missions.” Id. In the present case, plaintiffs argue that
RLUIPA has a virtually identical purpose: to alleviate
significant interference by prison officials with the ability of
prisoners to exercise their religious beliefs. But material

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differences exist between the application of RLUIPA in a
prison setting and the Title VII exemption at issue in Amos.
One key difference is that the exemption in Amos was
arguably necessary to avoid a violation of the Establishment
Clause. Without the exemption, Title VII would have
required courts to interfere with the internal workings of
religious organizations, and fear of liability might have
affected the way religious organizations carried out their
missions. Id. at 336; see also id. at 344 (Brennan, J.,
concurring) (“A case-by-case analysis for all activities
therefore would both produce excessive government
entanglement with religion and create the danger of chilling
religious activity.”). Enacting RLUIPA, on the other hand,
was not even arguably necessary to avoid a violation of the
Establishment Clause. The Supreme Court had previously
held that government interference with prisoners’
fundamental rights is not subject to strict scrutiny, as
RLUIPA requires, but only to a rational-relationship review.
See Turner, 482 U.S. 78; O’Lone, 482 U.S. 342.
Another key difference between RLUIPA and the
exemption in Amos is that RLUIPA sweeps much more
broadly. As one commentator noted about RFRA, the
predecessor to RLUIPA that has identical substantive
provisions:
Comparing RFRA to Amos is like comparing apples to
oranges. RFRA, unlike Amos, does not exempt religion
from regulation for the purpose of avoiding an
Establishment Clause violation. Rather, RFRA institutes
a standard of review in every case which implicates
religious conduct. . . . Amos did not involve a law that
exempted religion from every law in the country. Rather,
it permitted the exemption of religious employers from
a particular requirement in prescribed circumstances.
The law in Amos lacked RFRA’s vast scope; therefore,
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Amos cannot dictate how RFRA fares under the
Establishment Clause.
Marci A. Hamilton, The Religious Freedom Restoration Act
is Unconstitutional, Period, 1 U. Pa. J. Const. L. 1, 13-14
(1998).
The broader scope of RLUIPA suggests that its actual
purpose is not to accommodate religion by removing a
particular obstacle to religious exercise, but “to advance
religion in prisons relative to other constitutionally protected
conduct.” Ghashiyah, 250 F. Supp. 2d at 1024. If that is
indeed the true purpose of RLUIPA, then Congress has
“abandoned neutrality and acted with the purpose of
furthering religion,” in violation of the Establishment
Clause’s fundamental command of governmental neutrality.
Id. at 1025.
Resolution of the question of whether RLUIPA has the
proper purpose of alleviating government interference with
religious exercise or the prohibited purpose of advancing
religion in prisons is not necessary to our ultimate decision
regarding the Act’s constitutionality. Even if the purpose of
RLUIPA fits within the rule of Amos, RLUIPA is still
unconstitutional because it has the primary effect of
advancing religion. See Amos, 483 U.S. at 334-35 (“At some
point, accommodation may devolve into an unlawful fostering
of religion . . . .”) (internal quotation marks omitted).
2. The effect of RLUIPA
“The effect prong [of the Lemon test] asks whether,
irrespective of government’s actual purpose, the practice
under review in fact conveys a message of endorsement or
disapproval.” Lynch v. Donnelly, 465 U.S. 668, 690 (1984)
(O’Connor, J., concurring). In evaluating this prong, the two
most relevant factors are (1) whether a particular government
action benefits both secular and religious entities, and

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(2) whether the action will induce religious exercise, rather
than only protecting it. See Ghashiyah, 250 F. Supp. 2d at
1025-26 (collecting authorities that have used these factors in
Establishment Clause cases). Applying these factors to the
present case demonstrates that RLUIPA has the effect of
impermissibly advancing religion by giving greater protection
to religious rights than to other constitutionally protected
rights.
Prior to RLUIPA, restrictions imposed by prison officials
upon inmates’ fundamental rights were subject to a rational-
relationship review, see Turner, 482 U.S. 78; O’Lone, 482
U.S. 342, which requires courts to consider: (1) whether there
is a “valid, rational connection” between the prison regulation
and a legitimate government interest; (2) whether inmates
have alternative means of exercising the right in question;
(3) the impact of a requested accommodation of the right
upon guards and other inmates; and (4) the absence of
alternatives to the regulation. Turner, 482 U.S. at 89-90. The
rational-relationship test has been applied to claimed
violations of various fundamental rights, including the right
to the free exercise of religion, O’Lone, 482 U.S. 342, the
right to freedom of speech, Amatel v. Reno, 156 F.3d 192
(D.C. Cir. 1998), the right to marry, Turner, 482 U.S. 78, the
right to privacy, Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002),
the right to meaningful access to the courts, Lewis v. Casey,
518 U.S. 343 (1996), and the right to be free from racial
discrimination, Morrison v. Garraghty, 239 F.3d 648 (4th Cir.
2001).
In contrast to the highly deferential rational-relationship
test, RLUIPA requires courts to apply strict scrutiny to all
substantial burdens upon the free exercise of religion.
Madison eloquently explained the dramatic changes imposed
by RLUIPA:
Under RLUIPA, prison regulations that substantially
burden religious belief, including those that are generally
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applicable and facially neutral, are judged under a strict
scrutiny standard, requiring prison officials, rather than
the inmate, to bear the burden of proof that the regulation
furthers a compelling penological interest and is the least
restrictive means of satisfying this interest. 42 U.S.C.
§ 2000cc-1. As is well known from the history of
constitutional law, the change that RLUIPA imposes is
revolutionary, switching from a scheme of deference to
one of presumptive unconstitutionality. See Smith, 494
U.S. at 888. Instead of rational, the penological interest
under RLUIPA must be of the highest order, see
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Jenkins v.
Angelone, 948 F. Supp. 543, 546 (E.D. Va. 1996);
instead of focusing on the prison inmate’s ability to find
other avenues to exercise his belief, a court is required to
focus on the prison administrator’s choice among
regulatory options, see 42 U.S.C. § 2000cc-1(a)(2);
instead of placing the burden of proof on an inmate,
RLUIPA throws the burden on prison officials, see id.
§ 2000cc-1(a). It is hard to imagine a greater reversal of
fortunes for the religious rights of inmates than the one
involved in the passage of RLUIPA.
240 F. Supp. 2d at 575.
RLUIPA’s enhanced protection for religious rights might
not violate the First Amendment requirement of neutrality if
Congress had enacted RLUIPA based upon evidence that
religious rights are at greater risk of deprivation in the prison
system than other fundamental rights. The exemption in
Amos, for example, had the effect of maintaining
congressional neutrality toward religion because “Title VII’s
prohibitions on hiring or firing on the basis of religion had a
much greater negative impact on the purpose and mission of
a religious organization in comparison to the effect of the
prohibitions on a secular institution.” Madison, 240 F. Supp.
2d at 577 n.9. In contrast, Congress enacted RLUIPA “[i]n
the absence of any proof that religious rights are more at risk

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in prison than other fundamental rights, with the knowledge
that strict scrutiny is not required to protect the religious
belief of prisoners under the Free Exercise Clause,” Madison,
240 F. Supp. 2d at 576, and with the knowledge that prisoners
already have a remedy for violations of their constitutional
rights. “Such an action, while labeled a neutral
‘accommodation,’ is not in fact neutral at all, and the Court is
not allowed to defer to the mere characterization of RLUIPA
as such.” Id. at 576; see also Ghashiyah, 250 F. Supp. 2d at
1027 (“The effect [of RLUIPA], therefore, is to provide
greater protection to religiously motivated conduct than other
conscientious conduct.”).
Although the supporters of RLUIPA stated that “some
institutions restrict religious liberty in egregious and
unnecessary ways,” see Statements of Senators Hatch and
Kennedy, 146 Cong. Rec. S7774-01, S7775 (2000), RLUIPA
supporters offered no evidence that inmates’ other
constitutional rights “are not similarly threatened by prison
administrators,” Madison, 240 F. Supp. 2d at 575. And if
prison officials in fact “restrict religious liberty [or other
fundamental rights] in egregious and arbitrary ways,”
prisoners already have a remedy under Turner and O’Lone,
which require prison policies to be “legitimate and neutral,”
Turner, 482 U.S. at 90, and which held that strict scrutiny is
not necessary to protect the religious rights of prisoners.
Ghashiyah, 250 F. Supp. 2d at 1031 (noting that O’Lone
already provides prisoners a remedy for violations of their
religious rights).
Madison provides an excellent illustration of the effect of
RLUIPA upon the rights of prisoners:
Assume, for example, that a prison official confiscates
white supremacist literature held by two different
inmates. One inmate is a member of the Aryan Nation
solely because of his fanatical belief that a secret Jewish
conspiracy exists to control the world. The second
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inmate holds the white supremacist literature because he
is a member of the Church of Jesus Christ Christian,
Aryan Nation (“CJCC”). The non-religious inmate may
challenge the confiscation as a violation of his rights to
free expression and free association. A court would
evaluate these claims under the deferential rational
relationship test in Turner, placing a high burden of
proof on the inmate and leaving the inmate with
correspondingly dim prospects of success. However, the
religious inmate, as a member of the CJCC, may assert a
RLUIPA claim, arguing that the confiscation places a
substantial burden on his religious exercise. The
religious white supremacist now has a much better
chance of success than the non-religious white
supremacist, as prison officials bear the burden of
proving that the prison policy satisfies a compelling
interest and is the least restrictive means of satisfying the
interest. The difference in the level of protection
provided to each claim lies not in the relative merits of
the claims, but lies instead in the basis of one claim in
religious belief.
240 F. Supp. 2d at 576 (internal citations omitted). As this
example illustrates, the primary effect of RLUIPA is not
simply to accommodate the exercise of religion by individual
prisoners, but to advance religion generally by giving
religious prisoners rights superior to those of nonreligious
prisoners. “When Congress acts to lift the limitations on one
right while ignoring all others, it abandons neutrality towards
these rights, placing its power behind one system of belief.
When the one system of belief protected is religious belief,
Congress has violated the basic requirement of neutrality
embodied in the Establishment Clause.” Madison, 240 F.
Supp. 2d at 577 (internal citations omitted).
In addition to its message of endorsement, RLUIPA also
has the effect of encouraging prisoners to become religious in
order to enjoy greater rights. The Supreme Court has

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considered a statute’s effect on nonreligious persons as part
of the effect analysis. See Texas Monthly, Inc. v. Bullock, 489
U.S. 1, 9 (1989) (plurality opinion) (holding that government
may not compel nonadherents to support religious practices).
One effect of RLUIPA is to induce prisoners to adopt or feign
religious belief in order to receive the statute’s benefits. As
Ghashiyah explained:
[W]hen inmates see that the rules do not apply with the
same force to the religious as to the agnostic or atheist
. . . , non-religious prisoners will know what they have to
do so that they, too, can benefit from the softer rules:
become religious. Considering the meager resources and
opportunities available to them inside prison walls, the
compulsion to become religious—created by
government—will indeed be strong.
250 F. Supp. 2d at 1029.
In evaluating a statute’s effect, a court must ask “whether
an objective observer, acquainted with the text, legislative
history, and implementation of the enactment would view it
as state endorsement of religion.” Adland v. Russ, 307 F.3d
471, 484 (6th Cir. 2002) (internal quotation marks omitted).
RLUIPA’s legislative history, as previously discussed, offers
no evidence that religious rights are at any greater danger of
deprivation in prison than are other fundamental rights. As to
implementation, RLUIPA’s inevitable effect is to give greater
freedom to religious inmates, and to induce nonreligious
inmates to adopt a religion. An objective observer viewing
RLUIPA’s text, legislative history, and effect would therefore
conclude that the Act conveys a message of religious
endorsement.
Plaintiffs, however, point to the following statement from
Amos: “For a law to have forbidden ‘effects’ under Lemon,
it must be fair to say that the government itself has advanced
religion through its own activities and influence.” 483 U.S.
18 Cutter et al. v. Wilkinson
et al.
Nos. 02-3270/3299/3301
at 337 (emphasis in original). Amos held that the exemption
from Title VII did not run afoul of the effect prong of Lemon
because the government was not an active participant; the
statute simply allowed religious organizations to pursue their
religious objectives. Id. Plaintiffs contend that RLUIPA has
an identical effect. RLUIPA, according to plaintiffs, “does
not itself promote or subsidize a religious belief or message;
it merely frees religious groups and individuals to practice as
they otherwise would in the absence of certain significant
state-imposed burdens.”
The problem with plaintiffs’ argument is that the exemption
from Title VII that was at issue in Amos simply restored the
level of freedom that religious institutions enjoyed before
Congress enacted Title VII. By creating the exemption,
Congress arguably acted to maintain neutrality toward
religion. RLUIPA, on the other hand, does not lift any
affirmative burden on the exercise of religion. Instead, by
enacting RLUIPA, Congress itself has advanced religion by
giving religious prisoners a preferred status in the prison
community.
3. The entanglement between government and religion
created by RLUIPA
The third prong of the Lemon test prohibits an excessive
entanglement of government with religion. Lemon, 403 U.S.
at 613. Ghashiyah held that RLUIPA’s nebulous definition
of religious exercise, see 42 U.S.C. § 2000cc-5(7)(A), creates
an excessive entanglement “because it forces the states to
become involved with, knowledgeable about, and exceedingly
sensitive to the varied religious practices of their inmates. It
also forces the federal courts to become involved in prison
administration, an area that the Supreme Court has
admonished judges to avoid.” 250 F. Supp. 2d at 1031.
Although Ghashiyah’s reasoning is plausible, we question
whether RLUIPA requires any greater interaction between

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government officials and religion than exists under present
law. Assume, for example, that a prisoner who is a member
of a nontraditional “religion” claims a First Amendment right
to a special diet that is required by the prisoner’s “religious”
beliefs. Before reaching the underlying constitutional claim,
a court must first determine (1) whether the “religious” beliefs
are sincerely held, and (2) whether the prisoner’s beliefs
“constitute a religion within the meaning of the [F]irst
[A]mendment.” Africa v. Pennsylvania, 662 F.2d 1025,
1029-31 (3d Cir. 1981) (holding that a prisoner’s belief
system was not a religion for purposes of First Amendment
analysis). Deciding whether a specific act or practice
qualifies as “religious exercise” under RLUIPA arguably
creates no greater entanglement than deciding whether a
particular belief system constitutes a “religion” under the First
Amendment. However, because we have concluded that
RLUIPA has the impermissible effect of advancing religion,
we have no need to further explore the question of whether
RLUIPA violates Lemon’s entanglement prong.
C. The unpersuasive nature of the cases upholding
RLUIPA and RFRA
The cases that have upheld RLUIPA and RFRA against
constitutional attack have essentially relied on the rationale of
Amos. See, e.g.,Charles v. Verhagen, No. 02-3572, slip op.
at 12-13 (7th Cir. Oct. 30, 2003); Mayweathers v. Newland,
314 F.3d 1062, 1068-69 (9th Cir. 2002). We believe that
such reliance is misplaced. As we have already discussed, the
exemption in Amos was arguably necessary to avoid an
Establishment Clause violation. Amos, 483 U.S. at 336; see
also id. at 344 (Brennan, J., concurring). But RLUIPA
extends protection to religious exercise in prison far beyond
what is required by the Establishment Clause; it imposes
strict scrutiny where the Establishment Clause requires only
a rational-relationship review. See Turner, 482 U.S. 78;
O’Lone, 482 U.S. 342.
20 Cutter et al. v. Wilkinson
et al.
Nos. 02-3270/3299/3301
The exemption in Amos, moreover, was a narrowly tailored
solution to the potential Establishment Clause problem
created by Title VII’s application to religious institutions.
RLUIPA, on the other hand, does not address a particular
burden on religious exercise, but instead exempts religious
prisoners from many generally applicable prison regulations.
See Hamilton, 1 U. Pa. J. Const. L. at 13-14. We believe that
Professor Hamilton’s comment that “[c]omparing RFRA to
Amos is like comparing apples to oranges” is equally
applicable when comparing RLUIPA to Amos. See id. This
same point was expressed somewhat differently in Madison:
The difference between Amos and RLUIPA is, like all
Establishment Clause cases, a question of degree.
However, the difference in degree between the two is
substantial, and congressional neutrality is the line that
divides them. When Congress has acted to impose an
affirmative burden on religion, it is necessary for
Congress to remove that burden in order to retain a
position of neutrality towards religious belief. However,
when Congress acts to provide religious inmates, and
only religious inmates, with a level of constitutional
protection that the Supreme Court has deemed
unnecessary to protect religious rights, it has gone
beyond protecting religion to affirmatively advancing it.
240 F. Supp. 2d at 577 n.9; see also Ghashiyah, 250 F. Supp.
2d at 1028-29 (noting the fundamental distinction between the
exemption in Amos and RLUIPA).
These authorities have convinced us that reliance on the
rationale of Amos to sustain the constitutionality of RLUIPA
is misplaced. We therefore conclude that the cases supporting
RLUIPA are unpersuasive.

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III. CONCLUSION
For all the reasons set forth above, we hold that 42 U.S.C.
§ 2000cc-1 violates the Establishment Clause. Because of
this determination, we have no need to consider the
alternative grounds raised by defendants in their
constitutional challenge to RLUIPA. We therefore
REVERSE the district court’s denial of defendants’ motions
to dismiss and REMAND the case for further proceedings
consistent with this opinion.

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