Cutter and the Preferred Position of the Free Exercise Clause

By Goldberg, Steven | The William and Mary Bill of Rights Journal, April 2006 | Go to article overview

Cutter and the Preferred Position of the Free Exercise Clause


Goldberg, Steven, The William and Mary Bill of Rights Journal


INTRODUCTION

The Free Exercise Clause has been on life support for a number of years. The Supreme Court's 1 990 decision in Employment Division v. Smith held that the Clause did not prevent enforcement of generally applicable laws that incidentally burdened religious conduct.1 Legislatures were still prevented from singling out religious beliefs or practices for invidious discrimination, but those results could be reached under either the Free Speech or Equal Protection Clauses.2 Indeed, the greatest victories for religion in recent years came when the Court included religious speech and activities under the umbrella of free speech protections.3 Under the circumstances, it is not surprising that leading scholars suggested that the Free Exercise Clause had become "redundant."4

For Jay Sekulow, the attorney who engineered the victories for religious groups by using free speech principles, freedom of religion was not just redundant, but was a topic to be avoided. As Sekulow explained, "The first thing you always have to do is frame the issue, and I took a lot of heat from people on my side, who thought I was abandoning the religion clauses of the First Amendment. . . . But I wanted to win . . . ."5

In 2005, this all changed with the Supreme Court's unanimous decision in Cutter v. Wilkinson.6 In Cutter, the Court upheld, against an Establishment Clause challenge, a federal law that prevented state prison officials from burdening an inmate' s religious expression unless the burden furthered "a compelling governmental interest," and did so by "the least restrictive means."7 The Court explicitly said that under this law, inmates could gather for religious exercises even though they could not gather for political meetings.8 The Court reached its conclusion despite opposition to the law by correctional officials,9 a group to which it typically defers.10

Under Cutter, religion has achieved a special status it has not enjoyed in years, and this result can be explained only by the Free Exercise Clause. The Court in Cutter did not rely on any grant of power to Congress - it resolved only the Establishment Clause issue.11 Yet the Court did not use any of its numerous approaches to the Establishment Clause. It held simply that, when Congress accommodated the religious practices of inmates, it did not violate the Establishment Clause because Congress was furthering Free Exercise values.12 This accommodation went far beyond the legislative accommodations previously upheld by the Court. Without the Free Exercise Clause, the result in Cutter would have been impossible.

When the Supreme Court explicitly holds that Congress can create a system under which prisoners can "assemble for worship, but not for political rallies,"13 attention must be paid. Religion, which lost the traditional "preferred position" courts have accorded First Amendment rights in 1990,14 can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not only regained parity with free speech, it now receives greater protection than speech in the prison setting.

This victory for religious exercise already has made a practical difference. Within two months of the Cutter decision, a federal court of appeals reversed a pre- Cutter decision and upheld a prisoner's right to exercise his religion by wearing his hair longer than prison regulations specified.15 In the past, prisoners, as well as students, had often failed to gain constitutional protection for hair style choices, despite free expression and other constitutional claims.16 And Cutter's impact may soon extend far beyond this case.

I will begin by looking at the origins ofthe congressional legislation on inmates' religious rights before turning to how the Court's decision in Cutter, upholding that legislation, empowers the Free Exercise Clause. Finally, I will offer a few reflections on the jurisprudential future of religion's new "preferred position. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Cutter and the Preferred Position of the Free Exercise Clause
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.