                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                    File Name: 05a0390p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                     X
                                                      -
                    No. 02-3270

                               Plaintiffs-Appellees, -
JON B. CUTTER; J. LEE HAMPTON,
                                                      -
                                                      -
                                                             Nos. 02-3270/3299/3301

                                                      ,
UNITED STATES OF AMERICA,                              >
                               Intervenor-Appellee, -
                                                      -
                                                      -
                                                      -
          v.

                                                      -
NICHOLAS G. MENEDEZ; L. C. COVAL; K. L. BROWN; -
REGINALD WILKINSON; DAVID SCHWARTZ;
                                                      -
GEORGE D. ALEXANDER; DIANNE WALKER; JIM               -
                                                      -
                                                      -
ERWIN; RON CARNEIN; RUDY PRINGLE; WALTER

                            Defendants-Appellants. -
LOWERY,
                                                      -
                                                      -
                    No. 02-3299                       -
                                                      -
                               Plaintiffs-Appellees, -
JOHN MILLER, et al.,

                                                      -
                                                      -
                               Intervenor-Appellee, -
UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                      -
          v.

                                                      -
                                                      -
REGINALD WILKINSON; DAVID SCHWARTZ; TERRY
                                                      -
COLLINS; CHERYL HART; CHARLES R. GRIFFIN;
                                                      -
CHARLES GRIFFIN, Chaplain,
                            Defendants-Appellants. -
                                                      -
                                                      -
                                                      -
                    No. 02-3301

                                 Plaintiff-Appellee, -
JOHN W. GERHARDT,
                                                      -
                                                      -
                                                      -
                               Intervenor-Appellee, -
UNITED STATES OF AMERICA,

                                                      -
                                                      -
                                                      -
          v.
                                                      -
ALAN LAZAROFF, Warden; KENNETH BYERS; DON

                                              1
Nos. 02-3270/3299/3301                  Cutter et al. v. Wilkinson et al.                                     Page 2



                                                          -
                                                          -
 WILSON; MARY HENDERSON; SHERRY WILLIAMSON;
                                                          -
 KRISTINA HACKETT; STEVEN WEINGART; RON
                                                          -
 CLIFTON; ROBERT ENGLUND; CHARLES CONRAD;
 STACHA DOTY; JACK TAYLOR; WILLIAM BLANEY;                -
                                                          -
                                                          -
 CAROL MARTIN; JUNE COLEMAN; DAVE MORRIS;

                                                          -
 VANCE YORK; SUSAN COOLIE; STEPHANIE WALKER;

                                                          -
 RACHEL HETTINGER; KENNETH E. MCDONALD,
                                                          -
                          Defendants-Appellants.
                                                          -
                                                         N
                          On Remand from the United States Supreme Court.
                                Nos. 97-00382; 98-00275; 95-00517—
                       James L. Graham, Edmund A. Sargus, Jr., District Judges.
                                         Argued: September 10, 2003
                                  Decided and Filed: September 13, 2005
             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 JUSTICE, Washington, D.C., Benson
A. Wolman, WOLMAN & ASSOCIATES, Columbus, Ohio, 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. These consolidated cases come to us on remand
from the United States Supreme Court. In all three, Ohio prisoners sued state corrections officials
for alleged violations of the First Amendment’s Free Exercise Clause and of the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 (2000). The prison officials
mounted a facial challenge to the constitutionality of the section of RLUIPA that applies to
institutionalized persons, arguing that the statute violates the Establishment Clause of the First
Amendment, is barred by the Tenth Amendment, and exceeds Congress’s powers under both the

         *
          The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by
designation.
Nos. 02-3270/3299/3301             Cutter et al. v. Wilkinson et al.                             Page 3


Spending and Commerce Clauses. In response, the United States intervened to defend the
constitutionality of RLUIPA.
         The district court, after adopting the Report and Recommendation of the magistrate judge
that rejected all of the prison officials’ arguments, upheld the Act. Gerhardt v. Lazaroff, 221 F.
Supp. 2d 827, 829 (S.D. Ohio 2002). On an interlocutory appeal, we reversed the judgment of the
district court, reaching only the Establishment Clause issue. Cutter v. Wilkinson, 349 F.3d 257,
259-60 (6th Cir. 2003) (hereinafter Cutter I). The inmates sought review by the Supreme Court,
which reversed and remanded the case for further proceedings. Cutter v. Wilkinson, 125 S. Ct. 2113,
2125 (2005) (hereinafter Cutter II). We now address the prison officials’ remaining constitutional
challenges, and, finding none persuasive, AFFIRM the judgment of the district court.
                                         I. BACKGROUND
A.      Factual and statutory background
       Much of the factual and procedural background of the cases is set forth in our prior opinion
and that of the Supreme Court, see Cutter II, 125 S. Ct. at 2117-2120; Cutter I, 349 F.3d at 260-61,
and is not repeated here. The history and substance of RLUIPA remain central to our analysis,
however, and are therefore set forth in some detail below.
        1.      History of RLUIPA
         In 1990, the Supreme Court held in Employment Division, Department of Human Resources
of Oregon v. Smith, 494 U.S. 872, 878-82 (1990), that laws of general applicability that incidentally
burden religious conduct are not subject to strict-scrutiny review under the First Amendment’s Free
Exercise Clause. Congress responded to Smith by enacting the Religious Freedom Restoration Act
of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb-1 to -4. RFRA bars the government from
“substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of
general applicability,” unless the government can proffer a compelling interest and show that the
law “is the least restrictive means of furthering” that interest. 42 U.S.C. § 2000bb-1(a), (b). This
test effectively reinstated the strict-scrutiny standard that the Court had rejected in Smith. Four years
after RFRA’s passage, the Court invalidated the Act as applied to the states and their subdivisions,
holding that RFRA exceeded Congress’s remedial powers under Section 5 of the Fourteenth
Amendment. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997). The statute remains in force,
however, as applied to the federal government and federal territories and possessions. See Cutter
II, 125 S. Ct. at 2118 n.2.
         Seeking to fill the gap created by City of Boerne, Congress passed RLUIPA in 2000, this
time invoking its powers under the Spending and Commerce Clauses. See U.S. Const. Art I, § 8,
cls. 1, 3. RLUIPA makes RFRA’s strict-scrutiny standard applicable whenever a substantial burden
is imposed on religious exercise by a state government and (1) occurs “in a program or activity that
receives Federal financial assistance,” or (2) “affects, or removal of that substantial burden would
affect,” interstate or foreign commerce. See 42 U.S.C. § 2000cc-1(b)(1-2). But if the only
jurisdictional basis is the Commerce Clause, RLUIPA offers state officials the option of proving,
as an affirmative defense, that the substantial burden on religious exercise—or the removal
thereof—would not in the aggregate substantially affect interstate or foreign commerce. See id.
§ 2000cc-2(g).
       Section 3 of RLUIPA, the only part of the statute at issue in the present case, creates a
private cause of action for institutionalized and incarcerated persons who allege that a state
government has substantially burdened their religious conduct. See 42 U.S.C. § 2000cc-1(a), 2(a).
The strict-scrutiny standard mandated by § 3 significantly altered the framework for evaluating
inmates’ Free Exercise claims that had prevailed since the Court’s decision in O’Lone v. Estate of
Nos. 02-3270/3299/3301             Cutter et al. v. Wilkinson et al.                             Page 4


Shabazz, 482 U.S. 342 (1987), which held that prison regulations infringing on inmates’ rights under
the Free Exercise Clause are valid so long as the regulations are “reasonably related to legitimate
penological interests.” Id. at 349 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
        At oral argument before the Supreme Court, Chief Justice Rehnquist raised the question of
whether RLUIPA suffers from the same constitutional infirmities as the provisions of RFRA
previously invalidated in City of Boerne. See Transcript of Oral Argument at 4-5, Cutter II, 125 S.
Ct. 2113 (2005) (No. 03-9877). But the Solicitor General explained that RLUIPA is not “an effort
to rewrite a rule of decision for all cases like RFRA was,” id., and the Court’s opinion notes that
RFRA, unlike RLUIPA, “lacked a Commerce Clause underpinning or a Spending Clause limitation
to recipients of federal funds.” Cutter II, 125 S. Ct. at 2118; see also Mayweathers v. Newland, 314
F.3d 1062, 1070 (9th Cir. 2002) (rejecting a similar separation-of-powers challenge to RLUIPA and
concluding that “RLUIPA does not erroneously review or revise a specific ruling of the Supreme
Court because the statute does not overturn the Court’s constitutional interpretation in Smith.”).
With these doubts resolved, we now turn to the prison officials’ other constitutional challenges.
        2.      ODRC’s receipt of federal funds
        Throughout this litigation, the Ohio Department of Rehabilitation and Corrections (ODRC)
has consistently received federal funding. ODRC was the beneficiary of approximately $25.5
million per year when RLUIPA went into effect in September of 2000. See Brief for Petitioners at
7-8, Cutter II, 125 S. Ct. 2113 (2005) (No. 03-9877) (chronicling the amount and types of grants
received between 2001 and 2004). That amount, though substantial, comprised less than one percent
of ODRC’s annual budget. By 2004, when the parties filed their briefs in the Supreme Court, ODRC
expected to receive over $35 million in federal funds—just over 2% of its approximately $1.6 billion
budget. See id.
        The federal government provides grants to ODRC directly and by funding other Ohio
departments, which then transfer those funds to ODRC. Direct federal grants to ODRC fall into
three broad categories: general operations, prisoner improvement, and prisoner subsistence. Such
grants include the Violent Offender Incarceration and Truth in Sentencing Incentive Grants; the
State Criminal Alien Assistance Program; grants intended for prisoner education, job training, and
treatment for drug addiction; and monthly payments under the Federal School Breakfast Program
and Federal School Lunch Program.
        3.      ODRC’s connections to interstate commerce
       The prisoners characterize ODRC’s links to interstate commerce as threefold. First, ODRC
acquires from the stream of commerce goods and services that it uses in prison operations, ranging
from medical supplies to long-distance telephone service. ODRC’s second connection is its role in
sponsoring programs that allow inmates to produce goods and provide services for buyers outside
of Ohio. Finally, ODRC transports prisoners between states pursuant to prisoner-exchange
agreements with other states and with the federal government. We need not delve more deeply into
ODRC’s commercial operations, however, because we do not reach the prison officials’ Commerce
Clause challenge for the reasons explained in Part II.C. below.
B.      Procedural background
        The plaintiffs in the present cases are prisoners in the custody of ODRC, all of whom
belonged to non-mainstream religious groups. They filed suit against various Ohio corrections
officials, alleging initially that the officials had violated their rights under the Free Exercise Clause
of the First Amendment (as applied to the states through the Fourteenth Amendment). ODRC, the
prisoners maintained, refused to accommodate their religious beliefs by, among other things,
Nos. 02-3270/3299/3301             Cutter et al. v. Wilkinson et al.                              Page 5


denying them access to literature and ritual items and failing to provide a chaplain trained in their
religions. The prisoners later added a claim under RLUIPA after the statute’s passage in 2000.
        The prison officials moved to dismiss the inmates’ RLUIPA claims, insisting that the statute
was unconstitutional on its face and as applied. Pursuant to 28 U.S.C. § 2403(a), the United States
intervened to defend the constitutionality of the statute. All three cases were consolidated before
the district court, which adopted the Report and Recommendation of the magistrate judge denying
the motions to dismiss and upholding the validity of RLUIPA.
        This court reversed. Cutter I, 349 F.3d at 260. Reaching only the officials’ First
Amendment challenge, we held that RLUIPA violated the Establishment Clause because it had “the
impermissible effect of advancing religion” by favoring religious rights over other fundamental
rights. Id. at 264-268.
       The prisoners sought and obtained review by the Supreme Court. After consideration, the
Court reversed and remanded, holding that the statute did not, “on its face, exceed the limits of
permissible government accommodation of religious practices.” Cutter II, 125 S. Ct. at 2117. At
the same time, the Court refused to pass on the prison officials’ other constitutional challenges,
observing that we had not reached them. Id. at 2120 n.7. Taking up those challenges, we now
conclude that RLUIPA is permissible Spending Clause legislation that is not barred by the Tenth
Amendment.
                                            II. ANALYSIS
A.      Standard of review
        The prison officials’ facial constitutional challenges involve purely legal issues. We review
the district court’s ruling on such issues de novo. See United States v. Sawyers, 409 F.3d 732, 735
(6th Cir. 2005) (“Questions concerning the constitutionality of a statute are reviewed de novo.”);
Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998) (“Because the four provisions are challenged
with regard to facial constitutionality, thus implicating only issues of law, . . . our standard of review
is de novo.”).
B.      Spending Clause challenge
        We start with first principles. The Spending Clause gives Congress the authority “to lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence
and general Welfare of the United States.” U.S. Const. Art. I, § 8, cl. 1. This authority includes the
power to require states to comply with federal directives as a condition of receiving federal funds.
See South Dakota v. Dole, 483 U.S. 203, 206 (1987) (holding that Congress may require each state
to raise its minimum drinking age to 21 in order to receive its full share of federal highway funds).
In addition, Congress may use its spending power to pursue objectives outside of Article I’s
“enumerated legislative fields.” Id. at 207 (quoting United States v. Butler, 297 U.S. 1, 65 (1936)).
         The Court’s decision in Dole guides our analysis. Dole sets forth five limitations on the
federal spending power. First, the language of Article I requires that Congress use its power to
further “the general welfare.” Dole, 483 U.S. at 207. The second limitation requires Congress to
state all conditions on the receipt of federal funds “unambiguously” so as to “enabl[e] the States to
exercise their choice knowingly, cognizant of the consequences of their participation.” Id. (quoting
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, the conditions attached
to federal funds might be invalid if they are not related “to the federal interest in particular national
projects or programs.” Dole, 483 U.S. at 207-08 (quoting Massachusetts v. United States, 435 U.S.
444, 461 (1978) (plurality opinion)). The fourth limitation is that financial incentives offered by
Nos. 02-3270/3299/3301             Cutter et al. v. Wilkinson et al.                             Page 6


Congress must not be so significant that they amount to coercion. Dole, 483 U.S. at 211. Finally,
spending and conditions on funds must not violate any other constitutional provision. Id. at 208.
         The prison officials do not explicitly contend that RLUIPA violates the first Dole limitation,
and with good reason. In Dole, the Supreme Court instructed the lower courts to “defer substantially
to the judgment of Congress” in deciding what constitutes “the general welfare,” id. at 207, going
so far as to suggest that the “general welfare” restriction might not be “judicially enforceable . . . at
all.” Id. at 208 n.2.
         Whatever might be the outer limits of the “general welfare” restriction, two circuits have
succinctly explained why RLUIPA fits comfortably within that limitation. See Mayweathers v.
Newland, 314 F.3d 1062, 1066-67 (9th Cir. 2002); Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir.
2003). The Ninth Circuit in Mayweathers placed RLUIPA within a “long tradition of federal
legislation designed to guard against unfair bias and infringement on fundamental freedoms.” 314
F.3d at 1067 (citing the anti-discrimination provisions of Title VI, Title VII, and Title IX). In
Charles, the Seventh Circuit followed suit, concluding that “RLUIPA’s attempt to protect prisoners’
religious rights and to promote the rehabilitation of prisoners falls squarely within Congress’ pursuit
of the general welfare under its Spending Clause authority.” 348 F.3d at 607. Heeding the Supreme
Court’s instruction to “defer substantially” to Congress’s legislative judgment, we agree with our
sister circuits that RLUIPA furthers the general welfare.
         The prison officials next argue that RLUIPA runs afoul of the second Dole limitation, which
requires that conditions attached to federal grants be “unambiguous.” Dole, 483 U.S. at 207. We
think that the statutory language of RLUIPA, which explains that the Act applies to “any program
or activity that receives Federal financial assistance,” 42 U.S.C. § 2000cc-1(b)(1), is not ambiguous.
        Nevertheless, Ohio’s prison officials urge that Spending Clause legislation “requires a level
of specificity beyond that applicable to other legislation.” As support, they cite without elaboration
the Court’s decision in Pennhurst, 451 U.S. at 51. The prison officials in Charles attempted a
similar Pennhurst-based challenge to RLUIPA, arguing that the statute’s “least restrictive means”
standard constituted an ambiguous condition. In rejecting the officials’ reading of Pennhurst, the
Seventh Circuit reasoned that Congress need not “delineate every instance in which a State may or
may not comply with the least restrictive means test.” 348 F.3d at 608. RLUIPA’s clear language,
the court said, put Wisconsin “on notice” of the statutory conditions. Id. Nothing more is required
under Pennhurst, which held that Congress need provide no more than “clear notice” to the states
that funding is conditioned upon compliance with certain standards. 451 U.S. at 25. The plain
language of RLUIPA provides ample notice to potential funding recipients, and we therefore reject
the prison officials’ argument that the statute violates the second Dole limitation.
        The prison officials’ principal objections to RLUIPA center on Dole’s third requirement that
conditions on federal grants be related to a federal interest. See Dole, 483 U.S. at 207-08; Charles,
348 F.3d at 608. They assert the absence of a sufficient relationship between the conditions in
RLUIPA and the federal interest in the projects and programs that are funded by federal grants. A
straightforward reading of Dole and the two cases from our sister circuits, however, exposes the
flaws in the prison officials’ contentions.
        Dole is the Supreme Court’s most recent statement regarding the necessary relationship
between funding conditions and the federal interest in the funded program. At issue in Dole was
Congress’s requirement that each state establish a minimum drinking age of 21 or else face the
possibility of losing five percent of its federal highway funds. Id. at 211. The Court expressly
reserved the issue of how strong the connection must be between a condition on funding and the
purpose of the funds in order for the condition to pass constitutional muster. Id. at 209 n.3. But the
majority held that the condition in question—establishing a minimum drinking age of at least
Nos. 02-3270/3299/3301            Cutter et al. v. Wilkinson et al.                           Page 7


21—was sufficiently related to Congress’s purpose of ensuring safe interstate travel. Id. at 208. The
opinion suggests that a condition on federal funding is constitutional so long as it is “reasonably
calculated to address” the federal interest. Id. at 209 (“Congress conditioned the receipt of federal
funds in a way reasonably calculated to address this particular impediment to a purpose for which
the funds are expended.”).
        In the present case, the conditions set forth in RLUIPA are reasonably calculated to address
the federal government’s interest in the rehabilitation of state prisoners. As to the purpose of the
federal funding, the magistrate judge found that “plaintiffs have identified specific programs within
ODRC [that] both receive federal funding and deal specifically with inmate rehabilitation.” The
Court’s Spending Clause jurisprudence does not mandate that the federal funds actually be spent on
religious activities, and the prison officials’ arguments to the contrary are unavailing. See Charles,
348 F.3d at 609 (“That the [Department of Corrections] does not allocate federal funding specifically
to religious programs is of no moment.”).
        Even if the funds disbursed to ODRC are not allocated to religious activities, a prison’s
compliance with RLUIPA still satisfies one of the statute’s main purposes, which is to allow inmates
greater freedom of religion in order to promote their rehabilitation. See 146 Cong. Rec. S6678-02,
S6689 (statement of Sen. Kennedy) (“Sincere faith and worship can be an indispensable part of
rehabilitation, and these protections should be an important part of that process.”). We thus
conclude that the conditions imposed by RLUIPA and the federal funds received by ODRC are both
directed at the goal of prisoner rehabilitation, establishing a sufficient nexus between the two as
required by Dole. The RLUIPA requirements, in other words, are “reasonably calculated” to address
the federal interest in inmate rehabilitation. See Dole, 483 U.S. at 209.
        Our conclusion regarding the third Dole limitation comports with those reached by the
Seventh and Ninth Circuits. Emphasizing Congress’s dual interests in preventing federal funding
recipients from infringing individual liberties and in promoting inmate rehabilitation, the Ninth
Circuit held that “Congress may allocate federal funds freely” to meet both objectives. See
Mayweathers, 314 F.3d at 1067. “If the Supreme Court has in fact imposed a low-threshold
relatedness test,” the court said, “RLUIPA satisfies it.” Id.
        The Seventh Circuit endorsed the Ninth Circuit’s approach in Mayweathers and also
disposed of an additional argument that the prison officials in the present case make—namely, that
the federal interest is not sufficiently related to the conditions because ODRC receives only a
minimal percentage of its budget from the federal coffers. See Charles, 348 F.3d at 609. In Charles,
the court rejected the argument of the Wisconsin Department of Corrections that RLUIPA failed
Dole’s relatedness prong because federal funding comprised only 1.6 percent of the Department’s
annual budget. The Seventh Circuit concluded: “Nothing within the Spending Clause
jurisprudence, or RLUIPA for that matter, suggests that States are bound by the conditional grant
of money only if the State receives or derives a certain percentage . . . of its budget from federal
funds.” Id. Like the Charles court, we have found no authority supporting the prison officials’ bald
assertion that the relatively small amount of federal funding received alters the Spending Clause
analysis. We therefore join our sister circuits in holding that RLUIPA satisfies the Dole relatedness
requirement.
        Our conclusion as to Dole’s relatedness prong is not shaken by Justice Thomas’s suggestion
that RLUIPA “may well exceed Congress’ authority under . . . the Spending Clause.” Cutter II, 125
S. Ct. at 2125 n.2 (Thomas, J., concurring). In support of this interpretation, Justice Thomas cited
only his separate concurrence in Sabri v. United States, 541 U.S. 600, 613 (2004), an opinion in
which he advocated a more restrictive reading of the Necessary and Proper Clause of Article I. No
other Justice joined Justice Thomas’s opinions in either Cutter or Sabri, and Dole remains the
controlling law on conditional grants of federal money. Furthermore, even Justice Thomas
Nos. 02-3270/3299/3301             Cutter et al. v. Wilkinson et al.                              Page 8


acknowledged that ODRC’s “voluntary acceptance of Congress’ condition undercuts Ohio’s
argument that Congress is encroaching on its turf.” Cutter II, 125 S. Ct. at 2129 (Thomas, J.,
concurring). We therefore find nothing in Justice Thomas’s concurrence that alters our evaluation
of Dole’s third prong.
        The prison officials also argue that RLUIPA exceeds Congress’s spending powers because
it imposes a “recipient-wide” rather than a “program-specific” condition. They insist that, although
Congress may prohibit a specific, funded program from engaging in particular activity, it may not
prohibit the recipients of federal funds from engaging in that activity outside the federally funded
program. The prison officials cite several cases in support of this proposition, including Federal
Communications Commission v. League of Women Voters, 468 U.S. 364 (1984) (hereinafter FCC),
and Rust v. Sullivan, 500 U.S. 173 (1991). These cases, however, are clearly distinguishable from
the present case.
        In FCC, Congress prohibited editorializing by radio and television stations that received
funding from the Corporation for Public Broadcasting. 468 U.S. at 366. The Supreme Court held
that the condition on federal funding violated the stations’ First Amendment free-speech rights,
emphasizing that the condition barred stations from using even entirely private funds to finance
editorializing. Id. at 400. In Rust, federal regulations prohibited programs that received federal
funds from engaging in specified abortion-related conduct and counseling. 500 U.S. at 189-91. The
Court upheld the restriction after noting that recipients were still free to engage in the prohibited
conduct outside of the federally funded program. Id. at 196 (“The Secretary’s regulations do not
force the Title X grantee to give up abortion-related speech; they merely require that the grantee
keep such activities separate and distinct from Title X activities.”).
       In FCC, Rust, and the other cases cited by the prison officials, the federal government
imposed conditions that restricted the recipients’ ability to exercise a fundamental right—the First
Amendment right to free speech. Ohio’s prison officials, in contrast, have no constitutional right,
much less a fundamental constitutional right, to limit the exercise of religion by inmates. That
makes free-speech cases like FCC and Rust inapplicable. In light of Dole, these cases cast little
doubt on Congress’s power to impose a condition limiting a state’s ability to interfere with the free
exercise of religion.
        Turning now to the fourth prong of Dole, we note that the prison officials do not claim that
the “financial inducement offered by Congress” is unduly “coercive,” Dole, 483 U.S. at 211. We
therefore have no need to discuss the fourth Dole factor in the present case.
        This leaves us with the contention of the prison officials under Dole’s final prong—that the
funding condition is independently barred by another constitutional provision, the Tenth
Amendment. Our analysis necessarily begins with Dole, where the Court observed that “a perceived
Tenth Amendment limitation on congressional regulation of state affairs [does] not concomitantly
limit the range of conditions legitimately placed on federal grants.” Id. at 210. To the contrary, the
Court said, conditions on funding do not intrude on state sovereignty because they leave each state
with “the ‘simple expedient’ of not yielding to what [the state] urges is federal coercion.” Id. (citing
Oklahoma v. Civil Serv. Comm’n, 330 U.S. 127, 143-44 (1947)).
        The prison officials nonetheless insist that the Supreme Court’s post-Dole decisions in New
York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997), have
altered the constitutional calculus. We disagree. In New York, the Supreme Court addressed a
federal law that forced states either to dispose of radioactive waste by a certain date or to “take title”
to the waste and assume the liability of those who generated it. See 505 U.S. at 153-54. The Court
held the “take title” provision unconstitutional because it would “commandeer state governments
into the service of federal regulatory purposes.” Id. at 175.
Nos. 02-3270/3299/3301            Cutter et al. v. Wilkinson et al.                            Page 9


        Printz, the other case relied on by the prison officials, involved the Brady Act, a federal law
that establishes a national system for background checks of prospective handgun buyers. Interim
provisions of the Brady Act required the states’ chief law-enforcement officers to conduct
background checks on prospective handgun buyers until the national system was in place. Printz,
521 U.S. at 902-04. The Court held that the interim provisions were unconstitutional because
Congress may not “command the State’s officers . . . to administer or enforce a federal regulatory
program.” Id. at 935. Together, New York and Printz stand for the unexceptionable proposition that
Congress cannot force the states to enact or administer a federal regulatory scheme.
         New York and Printz are simply not applicable to the present case because RLUIPA does not
require the states to enact or administer a federal program. The Act does not demand that states take
any affirmative action at all. To the contrary, RLUIPA requires states to refrain from acting in a
way that interferes with inmates’ exercise of religion, unless the states’ actions are the least
restrictive means of furthering a compelling governmental interest.
        In this regard, RLUIPA is similar to the federal law that the Supreme Court upheld in Reno
v. Condon, 528 U.S. 141, 144 (2000). Condon concerned the Driver’s Privacy Protection Act of
1994 (DPPA), a federal statute that prohibits the states from disclosing drivers’ personal information
without the drivers’ consent. The Court upheld the DPPA because the law does not require the
states “to enact any laws or regulations” and does not “require state officials to assist in the
enforcement of federal statutes.” Id. at 151. Instead, the statute simply “regulates the States as the
owners of data bases.” Id. That rationale applies with equal force to the present case. RLUIPA
does not require states to enact any laws, assist in the enforcement of federal law, or take any other
affirmative action. Rather, Congress prohibited the operators of prisons and other institutions that
receive federal funding from engaging in certain conduct.
        We also note that the Seventh and Ninth Circuits have rejected Tenth Amendment challenges
similar to the one mounted by Ohio’s prison officials, and we again find their analyses instructive.
See Charles, 348 F.3d at 609; Mayweathers, 314 F.3d at 1069. RLUIPA, the Ninth Circuit
concluded, “does not regulate the operation of prisons,” a traditional area of state control.
Mayweathers, 314 F.3d at 1069. Moreover, states that find RLUIPA’s requirements too burdensome
“remain free to forgo federal funding and opt out of its mandates.” Id. The Seventh Circuit in
Charles extrapolated a more general proposition from Dole and New York, reasoning that “the Tenth
Amendment does not restrict the range of conditions Congress can impose on the receipt of federal
funds, even if Congress could not achieve the goal(s) of those conditions directly.” 348 F.3d at 609.
These two points—that RLUIPA does not regulate a state’s operation of its prison system and that
the Tenth Amendment does not limit Congress’s power to place conditions on federal
funding—convincingly refute the prison officials’ contention that RLUIPA improperly regulates
states and state affairs.
       In sum, we are satisfied that RLUIPA fits comfortably within each of the limitations set forth
by the Supreme Court in Dole. We therefore hold that the Act is a permissible exercise of
Congress’s Spending Clause powers.
C.     Commerce Clause challenge
        Because we uphold RLUIPA’s validity under the Spending Clause, we have no need to
consider whether the statute is also sustainable under the Commerce Clause. See Charles, 348 F.3d
at 609 (“Because we find that RLUIPA is valid under the Spending Clause, we need not involve
ourselves in arguments concerning the Commerce Clause.”); Mayweathers, 314 F.3d at 1068 n.2
(“Having established that RLUIPA satisfies . . . the Dole test [,] . . . we need not decide whether
Congress also had the authority to pass RLUIPA under the Commerce Clause.”). ODRC does not
Nos. 02-3270/3299/3301           Cutter et al. v. Wilkinson et al.                          Page 10


dispute that it has received and is continuing to receive federal funding, and receipt of those funds
establishes the only jurisdictional basis needed for RLUIPA to apply to Ohio’s prison system.
                                       III. CONCLUSION
         For all of the reasons set forth above, we hold that RLUIPA is valid Spending Clause
legislation that is not barred by the Tenth Amendment. We therefore AFFIRM the judgment of the
district court and REMAND the cases for further proceedings consistent with this opinion.
