RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA'S Prisoner Provisions

Article excerpt

I.  INTRODUCTION
II. RLUIPA'S LEGISLATIVE HISTORY AND THE
     HISTORICAL BACKGROUND OF PROTECTION OF
     RELIGIOUS EXERCISE OF PRISONERS
III. HOW THE ACT OPERATES
  A. A Brief Overview of the Act
  B. The Elements of a Prisoner's Claim for Relief Under
      RLUIPA
      1. RLUIPA's Merits Requirement--Demonstrating a
          Substantial Burden on Religious Exercise
          a. Substantial Burden
          b. Religious Exercise
          i. "Any" religious exercise is protected by
              RLUIPA
          ii.  Actions Must Be "Religious" to
               Be Protected
          iii. Religious Exercise Need Not Be
               "Compelled" by a System of Religious Belief
               to Be Protected
          iv.  Religious Exercise Need Not Be "Central"
               to a System of Religious Belief to Be
               Protected
      2. RLUIPA's Jurisdictional Requirements-Demonstrating
          Either Spending Clause or
          Commerce Clause Jurisdiction
          a. Spending Clause Jurisdiction
          b. Commerce Clause Jurisdiction
      3. RLUIPA's Exhaustion Requirement--
          Demonstrating Compliance with the PLRA
  C. Defending Against a RLUIPA Claim
     1. The Strict Scrutiny Test Applies
     2. Unlike the Turner/O'Lone standard, RLUIPA
         Shifts the Burden of Proof to Defendants
     3. Prison Administrators Will Not Be Able to Rely
         on Merely Legitimate or Important Interests
     4. Prisoners can defeat assertions of a compelling
         government interest where the prison allow
         similar conduct that damages the asserted
         interest
     5. How Strict Is RLUIPA's Strict Scrutiny
         Standard?
  D. RLUIPA's Remedies
 IV. THE SUCCESS OF RLUIPA CLAIMS ON THE
     MERITS
  A. Cases Challenging the Denial of a Religious Diet
      1. Cases Challenging Prison Grooming and Clothing
          Policies
  B. Cases Challenging Restrictions on Group Worship and
      Special Ceremonies
  C. Cases Challenging Limits on access to Religious
      Literature and Devotional Items
  D. General Observations On the Record of Merits Claims
      Under RLUIPA In Its First Four Years
 V. RLUIPA Is A CONSTITUTIONAL EXERCISE OF
      CONGRESSIONAL POWER
  A. RLUIPA Section 3 Does Not Violate the
      Establishment Clause
      1. RLUIPA Has a Secular Purpose
      2. RLUIPA Does Not Have the Primary Effect of
          Advancing Religion
          a. RLUIPA does not cause the government to
              advance religious exercise itself, but rather to
              avoid interference with private religious
              actors as they advance religious exercise
          b. None of the rationales suggested by the Sixth
              Circuit and RLUIPA's critics distinguish
              RLUIPA from the myriad accommodations
              of religious exercise by the political branches
              that follow the best of our traditions
           i. The Establishment Clause Does Not Prohibit
              Law Passed Solely to Accommodate
              Religious Exercise
          ii. RLUIPA Does Not Have Any Impermissible
              Effects on the Religious Freedoms of
              Others
         iii. The Mandates of the Free Exercise Clause
              Are Not a Ceiling On Permissible
              Accommodation of Religious Exercise
      3. RLUIPA Does Not Foster Excessive Entanglement
          With Religion
 B. RLUIPA Section 3 Is a Constitutional Exercise of
     Congress's Spending Power Under Article I
     1. RLUIPA Is in Pursuit of the General Welfare
     2. RLUIPA Places Unambiguous Conditions on the
         Receipt of Federal Funds
     3. RLUIPA's Conditions Relate to a Legitimate
         Federal Interest
     4. RLUIPA Does Not Violate Any Independent
         Constitutional Requirement
 C. RLUIPA Section 3 Is a Constitutional Exercise of
     Congress's Commerce Clause Power Under
     Article I
 D. … 

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