The U.S. Supreme Court seems poised to side with American Jewish organizations advocating for religious minorities' rights in prison.
While it's impossible to determine how the high court justices will rule later this year, Jewish organizational officials who listened to oral arguments Monday were pleased with questioning that suggested the justices support provisions in the Religious Land Use and Institutionalized Persons Act, or RLUIPA, that require prisons to accommodate inmates' religious requests if possible. Those provisions are being challenged by the state of Ohio.
"The court seemed to have pushed aside their strongest arguments," Marc Stern, counsel for the American Jewish Congress, said of Ohio's case.
Stern served as co-counsel for the petitioners, who represented the Bush administration and several prison inmates. Jewish groups generally came down on the side of the petitioners and in favor of religious accommodation in prison.
The petitioners stressed the need for a broad law that would give religious minorities the same rights of religious expression as those enjoyed by Christians in prison. But the justices appeared concerned about laws that would condone overly specific definitions of religious expression, such as dietary or literature requests, fearing they could allow for covert discrimination.
"Is there anything really at stake beyond saying, 'Treat us the same as you would treat mainstream religions?'" Justice John Paul Stevens asked Douglas Cole, Ohio's state solicitor.
Several times, justices and attorneys referred to prisoners' rights to receive kosher meals as an example of religious interests that should be fulfilled.
The case, Cutter vs. Wilkinson, challenges the constitutionality of RLUIPA, which passed Congress with the strong support of Jewish groups in 2000. The law says prisons should not impose substantial burdens on religious expression, unless there is a compelling governmental interest. It also says prisons should use the "least restrictive means" of furthering the government's interest.
The court's decision could have implications beyond prisons. The legislation requires the government to have a compelling reason if it denies religious organizations reasonable land use. If the court strikes down the existing law, the land-use provision would be defeated, too.
The case before the court stems from complaints by members of several fringe religions -- Wicca, Asatru and the Church of Jesus Christ -- who filed lawsuits after being denied the ability to worship and buy religious books and ceremonial items in prison.
Though Jews make up a small proportion of the prison population, they often are discriminated against and denied religious materials, such as kosher meals and tefillin, advocates for Jewish prisoners say.
A U.S. district court in Ohio ruled for the plaintiffs in 2001, saying the act did not violate the Establishment Clause of the U.S. Constitution, which prevents the state from endorsing a particular religion, because government is allowed to alleviate its own interference with religion.
The 6th Circuit Court of Appeals in Cincinnati reversed the decision in 2003, arguing that the legislation unfairly advances religion by "giving greater protection to religious rights than to other constitutionally protected rights."
In 1997, the U.S. Supreme Court struck down a broader version of the legislation, the Religious Freedom Restoration Act, ruling that Congress did not have the authority to enact a law that the court said infringed on states' rights.
Advocates for RLUIPA believe that the new law has standing based on Congress' role in regulating how federal dollars are spent.
"If the federal government is going to provide over $1 million for prison meals, then certainly the federal government can ensure that kosher meals are provided," acting U.S. Solicitor General Paul Clement said Monday in court, citing a hypothetical figure.
Ohio's Cole conceded that some religious accommodation, including kosher meals, could be viewed as legitimate, but expressed concern that RLUIPA gives a higher status to religious requests than to prisoners' other requests. That amounts to an implicit endorsement of religion, he argued, especially in an environment like a prison, where many liberties are withheld.
"It's insufficient because it doesn't change the underlying fact that a request itself is treated differently and better because it is a religious request," Cole said.
Cole questioned whether the law would lead prisoners to express religious beliefs in order to gain rights and privileges. Cole also said prisons would have to determine what are bona fide religions and would have to find less obstructive alternatives if requests for religious accommodation were denied for security reasons.
But many of the justices did not seem to feel that the act imposed an undue burden on prisons.
"Someone has to say what the lines are," Justice Antonin Scalia said, asking whether wardens or federal judges should be the ones to decide.
Justice Ruth Bader Ginsburg expressed concern that inmates could request racist literature under the guise of religion, or that prisoners could refuse to be housed with people of other races.
But David Goldberger, the attorney for the inmates who filed the case, said prisons would be covered by the fact that the statute allows prisons to exert a compelling government interest.
"Everybody understands that there are unique dangers involved in religious liberty in prisons," Michael Lieberman, Washington counsel for the Anti-Defamation League, said after the hearing. "But this statute does not require wardens to permit dangerous activities. It's a balancing test, and the law affords due deference to those types of interests."