       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Cutter et al. v. Wilkinson       Nos. 02-3270/3299/3301
    ELECTRONIC CITATION: 2003 FED App. 0397P (6th Cir.)        et al.
                File Name: 03a0397p.06

                                                                      v.                    -
UNITED STATES COURT OF APPEALS                                                              -
                                                           REGINALD WILKINSON;              -
              FOR THE SIXTH CIRCUIT                                                         -
                _________________                          DAVID SCHWARTZ; TERRY            -
                                                           COLLINS; CHERYL HART ;           -
                                                           CHARLES R. GRIFFIN ;             -
        No. 02-3270              X
                                  -                        CHARLES GRIFFIN , Chaplain,      -
JON B. CUTTER ; J. LEE                                                                      -
                                  -                              Defendants-Appellants.
HAMPTON ,                                                                                   -
                                  -    Nos. 02-3270/
           Plaintiffs-Appellees, -     3299/3301                                            -
                                   >                              No. 02-3301               -
                                  ,                        JOHN W. GERHARDT,                -
UNITED STATES OF AMERICA , -
          Intervenor-Appellee, -
                                                                     Plaintiff-Appellee,    -
                                                                                            -
                                  -                                                         -
                                  -                        UNITED STATES OF AMERICA ,
            v.                                                                              -
                                  -                                Intervenor-Appellee,
                                                                                            -
                                  -                                                         -
REGINALD WILKINSON;
                                  -                                   v.                    -
DAVID SCHWARTZ; NICHOLAS -
                                                                                            -
G. MENEDEZ; L. C. COVAL; K. -                                                               -
                                  -                        ALAN LAZAROFF, Warden;
L. BROWN ; GEORGE D.                                                                        -
                                  -                        KENNETH BYERS ; DON
ALEXANDER; DIANNE                                                                           -
                                  -                        WILSON; MARY HENDERSON ;         -
WALKER; JIM ERWIN ; RON
                                  -                        SHERRY WILLIAMSON;               -
CARN EIN ; RUDY PRINGLE ;         -
WALTER LOWERY ,
                                                           KRISTINA HACKETT ; STEVEN        -
                                  -                        WEINGART ; RON CLIFTON;          -
       Defendants-Appellants. -                                                             -
                                  -                        ROBERT ENGLUND; CHARLES
                                                           CONRAD; STACHA DOTY;             -
        No. 02-3299               -                                                         -
JOHN MILLER, et al.,              -                        JACK TAYLOR; WILLIAM             -
                                  -                        BLANEY; CAROL MART IN ;          -
           Plaintiffs-Appellees, -
                                                           JUNE COLEMAN; DAVE               -
                                  -                        MORRIS; VANCE YORK ;             -
UNITED STATES OF AMERICA , -                                                                -
                                                           SUSAN COOLIE ; STEPHA NIE
          Intervenor-Appellee, -                                                            -

                            1
Nos. 02-3270/3299/3301           Cutter et al. v. Wilkinson        3    4     Cutter et al. v. Wilkinson     Nos. 02-3270/3299/3301
                                                       et al.                 et al.

                                                                        JUSTICE, Washington, D.C., for Appellees. Marc D. Stern,
 WALKER; RACHEL                     -
                                                                        AMERICAN JEWISH CONGRESS, STEPHEN WISE
 HETTINGER; KENNETH E.              -
                                                                        CONGRESS HOUSE, New York, New York, for Amici
 MCDONALD ,                         -
                                                                        Curiae.
                                    -
       Defendants-Appellants.       -                                                       _________________
                                   N
       Appeal from the United States District Court                                             OPINION
      for the Southern District of Ohio at Columbus.                                        _________________
  No. 97-00382; 98-00275; 95-00517—James L. Graham,
          Edmund A. Sargus, Jr., District Judges.                         RONALD LEE GILMAN, Circuit Judge. Plaintiffs in
                                                                        these three consolidated cases are Ohio prisoners who
                 Argued: September 10, 2003                             contend, among other claims, that various Ohio corrections
                                                                        officials have violated the Religious Land Use and
           Decided and Filed: November 7, 2003                          Institutionalized Persons Act (RLUIPA), 42 U.S.C.
                                                                        § 2000cc–2000cc-5. The defendant officials filed motions to
        Before: MOORE and GILMAN, Circuit Judges;                       dismiss the RLUIPA claims, challenging the constitutionality
                 TARNOW, District Judge.*                               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
                           COUNSEL                                      Spending and Commerce Clauses, (2) violates states’ rights
                                                                        under the Tenth Amendment, and (3) improperly advances
ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY                           religion in violation of the Establishment Clause of the First
GENERAL, Columbus, Ohio, for Appellants. David A.                       Amendment. For the reasons set forth below, we agree that
Goldberger, OHIO STATE UNIVERSITY COLLEGE OF                            the portion of RLUIPA that applies to institutionalized
LAW - CLINICAL PROGRAMS, Columbus, Ohio, Michael                        persons—specifically, 42 U.S.C. § 2000cc-1—violates the
S. Raab, UNITED STATES DEPARTMENT OF JUSTICE,                           Establishment Clause. We therefore REVERSE the district
Washington, D.C., for Appellees. ON BRIEF: Todd R.                      court’s denial of defendants’ motions to dismiss and
Marti, OFFICE OF THE ATTORNEY GENERAL,                                  REMAND the case for further proceedings consistent with
Columbus, Ohio, for Appellants. David A. Goldberger,                    this opinion.
OHIO STATE UNIVERSITY COLLEGE OF LAW -
CLINICAL PROGRAMS, Columbus, Ohio, Michael S. Raab,                                         I. BACKGROUND
Mark B. Stern, UNITED STATES DEPARTMENT OF
                                                                        A. Factual background

    *
                                                                          Because this appeal involves a facial challenge to RLUIPA,
     The Honorable Arthur J. Tarnow, United States District Judge for   the facts of the individual cases are not particularly relevant.
the Eastern District of Michigan, sitting by designation.
Nos. 02-3270/3299/3301         Cutter et al. v. Wilkinson      5    6     Cutter et al. v. Wilkinson     Nos. 02-3270/3299/3301
                                                     et al.               et al.

The prisoners in all three cases generally allege that officials    relationship review to restrictions upon inmates’ fundamental
with the Ohio Department of Rehabilitation and Corrections          rights. See Turner v. Safley, 482 U.S. 78 (1987) (applying the
(ODRC) violated RLUIPA by refusing to accommodate the               rational-relationship test to prison rules regulating prisoner
prisoners’ religious beliefs and practices. Defendants, on the      correspondence and marriage); O’Lone v. Estate of Shabazz,
other hand, contend that RLUIPA has allowed inmate gangs            482 U.S. 342 (1987) (applying the rational-relationship test to
to claim “‘religious’ status in order to insulate their illicit     prison rules regulating prisoners’ religious exercise).
activities from scrutiny.”
                                                                       Congress enacted RLUIPA pursuant to its powers under the
  What is relevant to this case is the history and substance of     Spending Clause, U.S. Const. art. I, § 8, cl. 1, and the
RLUIPA. In 1990, the Supreme Court held that the United             Commerce Clause, U.S. Const. art. I, § 8, cl. 3. RLUIPA
States Constitution does not require that government have a         applies where “the substantial burden [on religious exercise]
compelling state interest in order to enact a law of general        is imposed in a program or activity that receives Federal
applicability that incidentally burdens the exercise of religion.   financial assistance.” 42 U.S.C. § 2000cc-1(b)(1). The Act
Employment Div., Dept. of Human Res. v. Smith, 494 U.S.             is also applicable where “the substantial burden affects, or
872 (1990). Congress responded in 1993 by enacting the              removal of that substantial burden would affect, commerce
Religious Freedom Restoration Act (RFRA), 42 U.S.C.                 with foreign nations, among the several States, or with Indian
§§ 2000bb—2000bb-4.              RFRA required that any             tribes.” 42 U.S.C. § 2000cc-1(b)(2).
governmental attempt to “substantially burden” the exercise
of religion must be the least restrictive means of furthering a       RLUIPA creates a private right of action. Any person may
compelling state interest. 42 U.S.C. § 2000bb-1(b). The             “assert a violation of this chapter as a claim or defense in a
Supreme Court held RFRA unconstitutional insofar as it              judicial proceeding” and may obtain “appropriate relief
applied to states and localities because the statute exceeded       against a government.” 42 U.S.C. § 2000cc-2(a). The United
Congress’s powers under the Fourteenth Amendment. City of           States may also seek injunctive or declaratory relief to enforce
Boerne v. Flores, 521 U.S. 507 (1997).                              the statute. 42 U.S.C. § 2000cc-2(f).

   Congress reacted to Boerne by passing RLUIPA in 2000.              RLUIPA’s congressional sponsors specifically noted that
RLUIPA has the same substantive standard as RFRA. It                they expected federal courts to respect the decisions of prison
provides, in relevant part, that “[n]o government shall impose      officials as to what restrictions on the exercise of religion are
a substantial burden on the religious exercise of a person          necessary in the prison context. A joint statement to the
residing in or confined to an institution” unless the burden “is    Senate expressed the sponsors’ belief that federal courts
in furtherance of a compelling governmental interest” and “is       would “continue the tradition of giving due deference to the
the least restrictive means” of furthering that interest. 42        experience and expertise of prison and jail administrators in
U.S.C. § 2000cc-1(a). The Act defines “religious exercise”          establishing necessary regulations and procedures to maintain
as “any exercise of religion, whether or not compelled by, or       good order, security, and discipline, consistent with
central to, a system of religious belief.” 42 U.S.C. § 2000-        considerations of cost and limited resources.” Statements of
cc5(7)(A). RLUIPA’s requirement of strict scrutiny stands in        Senators Hatch and Kennedy, 146 Cong. Rec. S7774-01,
sharp contrast to the Supreme Court’s previous decisions,           S7775 (2000).
which have held that the courts should apply a rational-
Nos. 02-3270/3299/3301         Cutter et al. v. Wilkinson     7    8      Cutter et al. v. Wilkinson    Nos. 02-3270/3299/3301
                                                     et al.               et al.

B. Procedural background                                               In my opinion, the Religious Freedom Restoration Act of
                                                                       1993 (RFRA) is a “law respecting an establishment of
  The plaintiff prisoners brought suit against various Ohio            religion” that violates the First Amendment to the
corrections officials based upon claims arising under the First        Constitution. . . . [T]he statute has provided [religious
and Fourteenth Amendments. RLUIPA went into effect after               organizations] with a legal weapon that no atheist or
suit was filed, causing plaintiffs to amend their complaints to        agnostic can obtain. This governmental preference for
include claims under the Act. Defendants then filed motions            religion, as opposed to irreligion, is forbidden by the
to dismiss the RLUIPA claims, arguing that the Act was                 First Amendment.
unconstitutional. (All references to RLUIPA are to 42 U.S.C.
§ 2000cc-1 only, the portion of the Act that applies to            Boerne, 521 U.S. at 536-37 (1997) (Stevens, J., concurring).
institutionalized persons.) The United States intervened to
defend the constitutionality of the Act. All three cases were        Two circuits, without reference to Justice Stevens’s
consolidated in order to adjudicate the motions to dismiss at      concurring opinion, have come to the opposite conclusion
the same time.                                                     regarding the constitutionality of RLUIPA. See Charles v.
                                                                   Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003);
  On August 27, 2001, the magistrate judge filed a Report          Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).
and Recommendation, which concluded that the statute was           Furthermore, five circuits, including the Seventh and Ninth,
constitutional and recommended that the district court deny        have concluded that the identical operative language in RFRA
defendants’ motions to dismiss. The district court entered an      does not violate the Establishment Clause. See In re Young,
opinion and order adopting the Report and Recommendation           141 F.3d 854, 863 (8th Cir. 1998); Mockaitis v. Harcleroad,
on February 25, 2002. Approximately a year and a half later,       104 F.3d 1522, 1530 (9th Cir. 1997); Sasnett v. Sullivan, 91
on August 4, 2003, the court certified its February 25, 2002       F.3d 1018, 1022 (7th Cir. 1996), vacated on other grounds,
order for immediate appeal pursuant to 28 U.S.C. § 1292(b).        521 U.S. 1114 (1997); EEOC v. Catholic Univ. of Am., 83
The parties then filed a joint petition for leave to appeal with   F.3d 455, 470 (D.C. Cir. 1996); Flores v. City of Boerne, 73
this court on August 6, 2003, within the 10-day time limit         F.3d 1352, 1364 (5th Cir. 1996), rev’d on other grounds, 521
imposed by the statute. We have previously granted the             U.S. 507 (1998). Two district court opinions, in addition to
petition for leave to appeal.                                      the one below, have also concluded that RLUIPA is
                                                                   constitutional. See Johnson v. Martin, 223 F. Supp. 2d 820
                       II. ANALYSIS                                (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,
A. Lineup of the courts                                            2003).
  The Supreme Court has not yet considered the                       Against this apparent juggernaut of circuit and district court
constitutionality of RLUIPA. Justice Stevens, however, in his      opinions stand two district court decisions that reach the
concurring opinion in Boerne, concluded that RLUIPA’s              opposite conclusion. One is Madison v. Riter, 240 F. Supp.
predecessor, RFRA, violated the Establishment Clause:              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
Nos. 02-3270/3299/3301        Cutter et al. v. Wilkinson     9   10   Cutter et al. v. Wilkinson      Nos. 02-3270/3299/3301
                                                    et al.            et al.

v. Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003). Both are      constitutionality of government aid to parochial schools,
remarkably well-worded and persuasive opinions that clearly      where the Court proceeded to analyze entanglement under the
set forth the history of RLUIPA, the analytical basis for        effect prong rather than as a separate factor. Based upon our
concluding that RLUIPA violates the Establishment Clause,        precedent of applying the Lemon test other than in aid-to-
and the unpersuasive nature of the contrary opinions. Indeed,    education cases, however, we will proceed with the traditional
our own analysis can (and will) be considerably streamlined      three-part Lemon analysis. See, e.g., Adland v. Russ, 307 F.3d
by repeated references to Madison and Ghashiyah.                 471, 479 (6th Cir. 2002) (applying the Lemon test to decide
(Inexplicably, the Seventh Circuit in Charles makes no           that a Kentucky legislative resolution directing the state to
reference to either of these district court opinions.)           move a Ten Commandments monument to a permanent site
                                                                 on the state capitol grounds violated the Establishment
B. RLUIPA violates the Establishment Clause because              Clause).
   it favors religious rights over other fundamental
   rights without any showing that religious rights are at         1. The purpose of RLUIPA
   any greater risk of deprivation
                                                                    “The purpose prong of the Lemon test asks whether
  The Establishment Clause of the First Amendment to the         government’s actual purpose is to endorse or disapprove of
U.S. Constitution states: “Congress shall make no law            religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987)
respecting an establishment of religion.” Neutrality is the      (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984)
fundamental requirement of the Establishment Clause, which       (O’Connor, J., concurring)). Lemon’s requirement of a
prohibits government from either endorsing a particular          secular purpose “does not mean that the law’s purpose must
religion or promoting religion generally. Bd. of Educ. of        be unrelated to religion . . . .” Corp. of the Presiding Bishop
Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703      of the Church of Jesus Christ of Latter-Day Saints v. Amos,
(1994) (“[A] principle at the heart of the Establishment         483 U.S. 327, 335 (1987). Instead, the purpose prong “aims
Clause [is] that government should not prefer one religion to    at preventing the relevant governmental decisionmaker . . .
another, or religion to irreligion.”); see also Ghashiyah, 250   from abandoning neutrality and acting with the intent of
F. Supp. 2d at 1021 (collecting cases that discuss the           promoting a particular point of view in religious matters.” Id.
neutrality requirement).
                                                                   In Amos, the Supreme Court considered whether Congress
  In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme         had violated the Establishment Clause by exempting religious
Court articulated a three-part test to determine whether a       organizations from Title VII’s prohibition against religious
statute violates the Establishment Clause. A statute (1) “must   discrimination in employment. Amos held that “it is a
have a secular legislative purpose,” (2) “its principal or       permissible legislative purpose to alleviate significant
primary effect must be one that neither advances nor inhibits    governmental interference with the ability of religious
religion,” and (3) it must not create “excessive government      organizations to define and carry out their religious
entanglement with religion.” Id. at 612-13 (internal quotation   missions.” Id. In the present case, plaintiffs argue that
marks and citations omitted). The Supreme Court suggested        RLUIPA has a virtually identical purpose: to alleviate
a modification to the Lemon test in Agostini v. Felton, 521      significant interference by prison officials with the ability of
U.S. 203, 232-35 (1997), in the context of considering the       prisoners to exercise their religious beliefs. But material
Nos. 02-3270/3299/3301       Cutter et al. v. Wilkinson     11   12   Cutter et al. v. Wilkinson      Nos. 02-3270/3299/3301
                                                   et al.             et al.

differences exist between the application of RLUIPA in a           Amos cannot dictate how RFRA fares under the
prison setting and the Title VII exemption at issue in Amos.       Establishment Clause.
  One key difference is that the exemption in Amos was           Marci A. Hamilton, The Religious Freedom Restoration Act
arguably necessary to avoid a violation of the Establishment     is Unconstitutional, Period, 1 U. Pa. J. Const. L. 1, 13-14
Clause. Without the exemption, Title VII would have              (1998).
required courts to interfere with the internal workings of
religious organizations, and fear of liability might have          The broader scope of RLUIPA suggests that its actual
affected the way religious organizations carried out their       purpose is not to accommodate religion by removing a
missions. Id. at 336; see also id. at 344 (Brennan, J.,          particular obstacle to religious exercise, but “to advance
concurring) (“A case-by-case analysis for all activities         religion in prisons relative to other constitutionally protected
therefore would both produce excessive government                conduct.” Ghashiyah, 250 F. Supp. 2d at 1024. If that is
entanglement with religion and create the danger of chilling     indeed the true purpose of RLUIPA, then Congress has
religious activity.”). Enacting RLUIPA, on the other hand,       “abandoned neutrality and acted with the purpose of
was not even arguably necessary to avoid a violation of the      furthering religion,” in violation of the Establishment
Establishment Clause. The Supreme Court had previously           Clause’s fundamental command of governmental neutrality.
held that government interference with prisoners’                Id. at 1025.
fundamental rights is not subject to strict scrutiny, as
RLUIPA requires, but only to a rational-relationship review.       Resolution of the question of whether RLUIPA has the
See Turner, 482 U.S. 78; O’Lone, 482 U.S. 342.                   proper purpose of alleviating government interference with
                                                                 religious exercise or the prohibited purpose of advancing
  Another key difference between RLUIPA and the                  religion in prisons is not necessary to our ultimate decision
exemption in Amos is that RLUIPA sweeps much more                regarding the Act’s constitutionality. Even if the purpose of
broadly. As one commentator noted about RFRA, the                RLUIPA fits within the rule of Amos, RLUIPA is still
predecessor to RLUIPA that has identical substantive             unconstitutional because it has the primary effect of
provisions:                                                      advancing religion. See Amos, 483 U.S. at 334-35 (“At some
                                                                 point, accommodation may devolve into an unlawful fostering
  Comparing RFRA to Amos is like comparing apples to             of religion . . . .”) (internal quotation marks omitted).
  oranges. RFRA, unlike Amos, does not exempt religion
  from regulation for the purpose of avoiding an                   2. The effect of RLUIPA
  Establishment Clause violation. Rather, RFRA institutes
  a standard of review in every case which implicates               “The effect prong [of the Lemon test] asks whether,
  religious conduct. . . . Amos did not involve a law that       irrespective of government’s actual purpose, the practice
  exempted religion from every law in the country. Rather,       under review in fact conveys a message of endorsement or
  it permitted the exemption of religious employers from         disapproval.” Lynch v. Donnelly, 465 U.S. 668, 690 (1984)
  a particular requirement in prescribed circumstances.          (O’Connor, J., concurring). In evaluating this prong, the two
  The law in Amos lacked RFRA’s vast scope; therefore,           most relevant factors are (1) whether a particular government
                                                                 action benefits both secular and religious entities, and
Nos. 02-3270/3299/3301         Cutter et al. v. Wilkinson     13   14    Cutter et al. v. Wilkinson     Nos. 02-3270/3299/3301
                                                     et al.              et al.

(2) whether the action will induce religious exercise, rather        applicable and facially neutral, are judged under a strict
than only protecting it. See Ghashiyah, 250 F. Supp. 2d at           scrutiny standard, requiring prison officials, rather than
1025-26 (collecting authorities that have used these factors in      the inmate, to bear the burden of proof that the regulation
Establishment Clause cases). Applying these factors to the           furthers a compelling penological interest and is the least
present case demonstrates that RLUIPA has the effect of              restrictive means of satisfying this interest. 42 U.S.C.
impermissibly advancing religion by giving greater protection        § 2000cc-1. As is well known from the history of
to religious rights than to other constitutionally protected         constitutional law, the change that RLUIPA imposes is
rights.                                                              revolutionary, switching from a scheme of deference to
                                                                     one of presumptive unconstitutionality. See Smith, 494
   Prior to RLUIPA, restrictions imposed by prison officials         U.S. at 888. Instead of rational, the penological interest
upon inmates’ fundamental rights were subject to a rational-         under RLUIPA must be of the highest order, see
relationship review, see Turner, 482 U.S. 78; O’Lone, 482            Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Jenkins v.
U.S. 342, which requires courts to consider: (1) whether there       Angelone, 948 F. Supp. 543, 546 (E.D. Va. 1996);
is a “valid, rational connection” between the prison regulation      instead of focusing on the prison inmate’s ability to find
and a legitimate government interest; (2) whether inmates            other avenues to exercise his belief, a court is required to
have alternative means of exercising the right in question;          focus on the prison administrator’s choice among
(3) the impact of a requested accommodation of the right             regulatory options, see 42 U.S.C. § 2000cc-1(a)(2);
upon guards and other inmates; and (4) the absence of                instead of placing the burden of proof on an inmate,
alternatives to the regulation. Turner, 482 U.S. at 89-90. The       RLUIPA throws the burden on prison officials, see id.
rational-relationship test has been applied to claimed               § 2000cc-1(a). It is hard to imagine a greater reversal of
violations of various fundamental rights, including the right        fortunes for the religious rights of inmates than the one
to the free exercise of religion, O’Lone, 482 U.S. 342, the          involved in the passage of RLUIPA.
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     240 F. Supp. 2d at 575.
right to privacy, Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002),
the right to meaningful access to the courts, Lewis v. Casey,        RLUIPA’s enhanced protection for religious rights might
518 U.S. 343 (1996), and the right to be free from racial          not violate the First Amendment requirement of neutrality if
discrimination, Morrison v. Garraghty, 239 F.3d 648 (4th Cir.      Congress had enacted RLUIPA based upon evidence that
2001).                                                             religious rights are at greater risk of deprivation in the prison
                                                                   system than other fundamental rights. The exemption in
  In contrast to the highly deferential rational-relationship      Amos, for example, had the effect of maintaining
test, RLUIPA requires courts to apply strict scrutiny to all       congressional neutrality toward religion because “Title VII’s
substantial burdens upon the free exercise of religion.            prohibitions on hiring or firing on the basis of religion had a
Madison eloquently explained the dramatic changes imposed          much greater negative impact on the purpose and mission of
by RLUIPA:                                                         a religious organization in comparison to the effect of the
                                                                   prohibitions on a secular institution.” Madison, 240 F. Supp.
  Under RLUIPA, prison regulations that substantially              2d at 577 n.9. In contrast, Congress enacted RLUIPA “[i]n
  burden religious belief, including those that are generally      the absence of any proof that religious rights are more at risk
Nos. 02-3270/3299/3301         Cutter et al. v. Wilkinson     15   16   Cutter et al. v. Wilkinson      Nos. 02-3270/3299/3301
                                                     et al.             et al.

in prison than other fundamental rights, with the knowledge          inmate holds the white supremacist literature because he
that strict scrutiny is not required to protect the religious        is a member of the Church of Jesus Christ Christian,
belief of prisoners under the Free Exercise Clause,” Madison,        Aryan Nation (“CJCC”). The non-religious inmate may
240 F. Supp. 2d at 576, and with the knowledge that prisoners        challenge the confiscation as a violation of his rights to
already have a remedy for violations of their constitutional         free expression and free association. A court would
rights. “Such an action, while labeled a neutral                     evaluate these claims under the deferential rational
‘accommodation,’ is not in fact neutral at all, and the Court is     relationship test in Turner, placing a high burden of
not allowed to defer to the mere characterization of RLUIPA          proof on the inmate and leaving the inmate with
as such.” Id. at 576; see also Ghashiyah, 250 F. Supp. 2d at         correspondingly dim prospects of success. However, the
1027 (“The effect [of RLUIPA], therefore, is to provide              religious inmate, as a member of the CJCC, may assert a
greater protection to religiously motivated conduct than other       RLUIPA claim, arguing that the confiscation places a
conscientious conduct.”).                                            substantial burden on his religious exercise. The
                                                                     religious white supremacist now has a much better
   Although the supporters of RLUIPA stated that “some               chance of success than the non-religious white
institutions restrict religious liberty in egregious and             supremacist, as prison officials bear the burden of
unnecessary ways,” see Statements of Senators Hatch and              proving that the prison policy satisfies a compelling
Kennedy, 146 Cong. Rec. S7774-01, S7775 (2000), RLUIPA               interest and is the least restrictive means of satisfying the
supporters offered no evidence that inmates’ other                   interest. The difference in the level of protection
constitutional rights “are not similarly threatened by prison        provided to each claim lies not in the relative merits of
administrators,” Madison, 240 F. Supp. 2d at 575. And if             the claims, but lies instead in the basis of one claim in
prison officials in fact “restrict religious liberty [or other       religious belief.
fundamental rights] in egregious and arbitrary ways,”
prisoners already have a remedy under Turner and O’Lone,           240 F. Supp. 2d at 576 (internal citations omitted). As this
which require prison policies to be “legitimate and neutral,”      example illustrates, the primary effect of RLUIPA is not
Turner, 482 U.S. at 90, and which held that strict scrutiny is     simply to accommodate the exercise of religion by individual
not necessary to protect the religious rights of prisoners.        prisoners, but to advance religion generally by giving
Ghashiyah, 250 F. Supp. 2d at 1031 (noting that O’Lone             religious prisoners rights superior to those of nonreligious
already provides prisoners a remedy for violations of their        prisoners. “When Congress acts to lift the limitations on one
religious rights).                                                 right while ignoring all others, it abandons neutrality towards
                                                                   these rights, placing its power behind one system of belief.
 Madison provides an excellent illustration of the effect of       When the one system of belief protected is religious belief,
RLUIPA upon the rights of prisoners:                               Congress has violated the basic requirement of neutrality
                                                                   embodied in the Establishment Clause.” Madison, 240 F.
  Assume, for example, that a prison official confiscates          Supp. 2d at 577 (internal citations omitted).
  white supremacist literature held by two different
  inmates. One inmate is a member of the Aryan Nation                In addition to its message of endorsement, RLUIPA also
  solely because of his fanatical belief that a secret Jewish      has the effect of encouraging prisoners to become religious in
  conspiracy exists to control the world. The second               order to enjoy greater rights. The Supreme Court has
Nos. 02-3270/3299/3301        Cutter et al. v. Wilkinson     17   18     Cutter et al. v. Wilkinson    Nos. 02-3270/3299/3301
                                                    et al.               et al.

considered a statute’s effect on nonreligious persons as part     at 337 (emphasis in original). Amos held that the exemption
of the effect analysis. See Texas Monthly, Inc. v. Bullock, 489   from Title VII did not run afoul of the effect prong of Lemon
U.S. 1, 9 (1989) (plurality opinion) (holding that government     because the government was not an active participant; the
may not compel nonadherents to support religious practices).      statute simply allowed religious organizations to pursue their
One effect of RLUIPA is to induce prisoners to adopt or feign     religious objectives. Id. Plaintiffs contend that RLUIPA has
religious belief in order to receive the statute’s benefits. As   an identical effect. RLUIPA, according to plaintiffs, “does
Ghashiyah explained:                                              not itself promote or subsidize a religious belief or message;
                                                                  it merely frees religious groups and individuals to practice as
  [W]hen inmates see that the rules do not apply with the         they otherwise would in the absence of certain significant
  same force to the religious as to the agnostic or atheist       state-imposed burdens.”
  . . . , non-religious prisoners will know what they have to
  do so that they, too, can benefit from the softer rules:          The problem with plaintiffs’ argument is that the exemption
  become religious. Considering the meager resources and          from Title VII that was at issue in Amos simply restored the
  opportunities available to them inside prison walls, the        level of freedom that religious institutions enjoyed before
  compulsion to become religious—created by                       Congress enacted Title VII. By creating the exemption,
  government—will indeed be strong.                               Congress arguably acted to maintain neutrality toward
                                                                  religion. RLUIPA, on the other hand, does not lift any
250 F. Supp. 2d at 1029.                                          affirmative burden on the exercise of religion. Instead, by
                                                                  enacting RLUIPA, Congress itself has advanced religion by
   In evaluating a statute’s effect, a court must ask “whether    giving religious prisoners a preferred status in the prison
an objective observer, acquainted with the text, legislative      community.
history, and implementation of the enactment would view it
as state endorsement of religion.” Adland v. Russ, 307 F.3d         3.    The entanglement between government and religion
471, 484 (6th Cir. 2002) (internal quotation marks omitted).              created by RLUIPA
RLUIPA’s legislative history, as previously discussed, offers
no evidence that religious rights are at any greater danger of       The third prong of the Lemon test prohibits an excessive
deprivation in prison than are other fundamental rights. As to    entanglement of government with religion. Lemon, 403 U.S.
implementation, RLUIPA’s inevitable effect is to give greater     at 613. Ghashiyah held that RLUIPA’s nebulous definition
freedom to religious inmates, and to induce nonreligious          of religious exercise, see 42 U.S.C. § 2000cc-5(7)(A), creates
inmates to adopt a religion. An objective observer viewing        an excessive entanglement “because it forces the states to
RLUIPA’s text, legislative history, and effect would therefore    become involved with, knowledgeable about, and exceedingly
conclude that the Act conveys a message of religious              sensitive to the varied religious practices of their inmates. It
endorsement.                                                      also forces the federal courts to become involved in prison
                                                                  administration, an area that the Supreme Court has
   Plaintiffs, however, point to the following statement from     admonished judges to avoid.” 250 F. Supp. 2d at 1031.
Amos: “For a law to have forbidden ‘effects’ under Lemon,
it must be fair to say that the government itself has advanced     Although Ghashiyah’s reasoning is plausible, we question
religion through its own activities and influence.” 483 U.S.      whether RLUIPA requires any greater interaction between
Nos. 02-3270/3299/3301         Cutter et al. v. Wilkinson     19    20   Cutter et al. v. Wilkinson     Nos. 02-3270/3299/3301
                                                     et al.              et al.

government officials and religion than exists under present           The exemption in Amos, moreover, was a narrowly tailored
law. Assume, for example, that a prisoner who is a member           solution to the potential Establishment Clause problem
of a nontraditional “religion” claims a First Amendment right       created by Title VII’s application to religious institutions.
to a special diet that is required by the prisoner’s “religious”    RLUIPA, on the other hand, does not address a particular
beliefs. Before reaching the underlying constitutional claim,       burden on religious exercise, but instead exempts religious
a court must first determine (1) whether the “religious” beliefs    prisoners from many generally applicable prison regulations.
are sincerely held, and (2) whether the prisoner’s beliefs          See Hamilton, 1 U. Pa. J. Const. L. at 13-14. We believe that
“constitute a religion within the meaning of the [F]irst            Professor Hamilton’s comment that “[c]omparing RFRA to
[A]mendment.” Africa v. Pennsylvania, 662 F.2d 1025,                Amos is like comparing apples to oranges” is equally
1029-31 (3d Cir. 1981) (holding that a prisoner’s belief            applicable when comparing RLUIPA to Amos. See id. This
system was not a religion for purposes of First Amendment           same point was expressed somewhat differently in Madison:
analysis). Deciding whether a specific act or practice
qualifies as “religious exercise” under RLUIPA arguably               The difference between Amos and RLUIPA is, like all
creates no greater entanglement than deciding whether a               Establishment Clause cases, a question of degree.
particular belief system constitutes a “religion” under the First     However, the difference in degree between the two is
Amendment. However, because we have concluded that                    substantial, and congressional neutrality is the line that
RLUIPA has the impermissible effect of advancing religion,            divides them. When Congress has acted to impose an
we have no need to further explore the question of whether            affirmative burden on religion, it is necessary for
RLUIPA violates Lemon’s entanglement prong.                           Congress to remove that burden in order to retain a
                                                                      position of neutrality towards religious belief. However,
C. The unpersuasive nature of the cases upholding                     when Congress acts to provide religious inmates, and
   RLUIPA and RFRA                                                    only religious inmates, with a level of constitutional
                                                                      protection that the Supreme Court has deemed
   The cases that have upheld RLUIPA and RFRA against                 unnecessary to protect religious rights, it has gone
constitutional attack have essentially relied on the rationale of     beyond protecting religion to affirmatively advancing it.
Amos. See, e.g.,Charles v. Verhagen, No. 02-3572, slip op.
at 12-13 (7th Cir. Oct. 30, 2003); Mayweathers v. Newland,          240 F. Supp. 2d at 577 n.9; see also Ghashiyah, 250 F. Supp.
314 F.3d 1062, 1068-69 (9th Cir. 2002). We believe that             2d at 1028-29 (noting the fundamental distinction between the
such reliance is misplaced. As we have already discussed, the       exemption in Amos and RLUIPA).
exemption in Amos was arguably necessary to avoid an
Establishment Clause violation. Amos, 483 U.S. at 336; see             These authorities have convinced us that reliance on the
also id. at 344 (Brennan, J., concurring). But RLUIPA               rationale of Amos to sustain the constitutionality of RLUIPA
extends protection to religious exercise in prison far beyond       is misplaced. We therefore conclude that the cases supporting
what is required by the Establishment Clause; it imposes            RLUIPA are unpersuasive.
strict scrutiny where the Establishment Clause requires only
a rational-relationship review. See Turner, 482 U.S. 78;
O’Lone, 482 U.S. 342.
Nos. 02-3270/3299/3301        Cutter et al. v. Wilkinson     21
                                                    et al.

                   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.
