Academic journal article Texas Journal on Civil Liberties & Civil Rights

When Money Is Tight, Is Strict Scrutiny Loose?: Cost Sensitivity as a Compelling Governmental Interest under the Religious Land Use and Institutionalized Persons Act of 2000

Academic journal article Texas Journal on Civil Liberties & Civil Rights

When Money Is Tight, Is Strict Scrutiny Loose?: Cost Sensitivity as a Compelling Governmental Interest under the Religious Land Use and Institutionalized Persons Act of 2000

Article excerpt

I. INTRODUCTION

What happens when prison inmates in state custody think that prison officials are violating their First Amendment right to the free exercise of religion? For example, when the inmate is an observant Jew or Muslim and his jailors give him a steady diet of pork,1 when he is a devout Catholic and prison officials deny him sacramental wine,2 or when he is a Native American who has grown his hair long to honor his dead father, and prison guards want to shave his head?3

The beginning of the answer is that these inmates may sue under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).4 RLUIPA directs courts to apply strict scrutiny review to state prison regulations that burden religious exercise. Prison officials must show that the burdensome regulation is the least restrictive means of furthering a compelling governmental interest - at least, according to the U.S. Code; according to the case reporters, the answer is a little different, and the review is anything but strict.

In a developing line of cases, the lower federal courts are holding that strict scrutiny review under RLUIPA is different from strict scrutiny review elsewhere in civil rights jurisprudence.5 Namely, the courts are holding that, under RLUIPA, a government's cost6 sensitivity is a compelling governmental interest, leaving governments free to violate the First Amendment if that is the cheaper option.

In this Note, I demonstrate that this reading of RLUIPA is incorrect. In Part II, I offer some background information about RLUIPA and describe in greater detail the growing trend of holding that cost sensitivity is a compelling governmental interest. Then, in Part III, I explain why this trend reflects an imprecise reading of both RLUIPA and the Supreme Court's major RLUIPA case, Cutter v. Wilkinson.7 I also discuss the normative and extension problems with treating cost sensitivity as a compelling governmental interest. Lastly, in Part IV, I offer proposals for correcting this problem going forward.

II. BACKGROUND

The Search for a Test for Inmate Free Exercise Claims

The Constitution is not extinguished at the jailhouse gate8 - inmates have, like all Americans, a right to the free exercise of religion, as guaranteed by the First Amendment.9 As a practical matter, though, the challenges of prison administration at times lead prison officials to impose restrictions on inmates' ability to engage in religious practice.10 (Sometimes, though, it's not administrative challenges, but ignorance or spite that leads to these restrictions.)11 In any case, whatever the reasons for such regulations, prison inmates often challenge them as a violation of their free exercise rights.12

Over the past several decades, Congress and the federal courts have each struggled to develop a test to determine when prison regulations that burden inmates' religious rights are permissible and when they violate the Constitution.13 There has been a marked pattern to this effort.14 In brief, from at least the 1980s to the early 1990s, the federal courts applied a form of rational basis review to regulations that burdened inmates' free exercise.15 Congress believed that this standard of review was under-protective of inmate free exercise and, in 1993, codified a strict scrutiny test to replace it: the Religious Freedom Restoration Act (RFRA).16 In the years following RFRA's enactment, the courts weakened RFRA's protections,17 and the Supreme Court ultimately struck it down in 1997.18 In 2000, Congress spoke again on the issue and passed RLUIPA, which reinstates RFRA's guarantee of strict scrutiny protection for inmate free exercise claims.19 Today, perhaps somewhat predictably, the courts have followed the foregoing pattern and have weakened the protections offered by RLUIPA.

B. The History of RLUIPA and RFRA in the Context of the Supreme Court's Modern Prisoner Free Exercise Jurisprudence

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