c. 2005 Religion News Service

WASHINGTON _ The rights of Wiccans, Satanists and other imprisoned members of non-mainstream religions will be better protected if the Supreme Court rules that a 5-year-old federal law is constitutional, an Ohio attorney told the Supreme Court on Monday (March 21).

“There is a preference for accommodating mainstream religions as opposed to non-mainstream religions,” said David Goldberger, a Columbus, Ohio, lawyer who represented several inmates of non-traditional faiths before the high court. “It’s important for us to assure that religious groups of all stripes are accommodated.”

The Religious Land Use and Institutionalized Persons Act falls within constitutional boundaries, he argued. Ohio’s state solicitor contended, on the other hand, that the section of the federal statute governing inmates’ religious rights inappropriately forces prison administrators to balance issues of faith and security.

The section of the law in question bars government from limiting the religious freedom of prisoners in federally funded institutions without a compelling reason.

Chief Justice William H. Rehnquist, returning to the bench for the first time since October after a diagnosis of thyroid cancer, joined other justices in the discussion of how the law might or might not favor religious prisoners over those who are not religious.

Ohio State Solicitor Douglas Cole argued that RLUIPA, as the law is known, is unconstitutional in the “unique environment” of a prison.

Justice David Souter asked Cole to explain how the law could be more specific and satisfy the lawyer’s concerns given that it already notes that there are instances in which requests for religious accommodation can be denied.

Cole said the requests are treated “differently and better” simply because they relate to religion.

Asked by Justice Stephen Breyer why he thinks the law violates the Establishment Clause, Cole said, “It’s the magnitude by which Congress has enhanced the religious rights.”

He said the law puts other inmates at risk, citing the example of inmates who might seek a religious exemption to grooming regulations, only to hide contraband in their hair.

Acting Solicitor General Paul D. Clement joined Goldberger in arguing in support of the law, saying it does not violate the Establishment Clause.

Justice Sandra Day O’Connor asked about whether the law “provides an unusual framework or incentive” for prisoners to “get religion.” She wondered, for example, about inmates claiming they should be able to drink beer every day because their religion calls for it.

Clement responded that the law does not give “blanket” recognition of any religion. He said many of the matters related to the law involve “things that I don’t think people are lining up to do.” For example, he said, if an inmate successfully requested a kosher diet, he or she would probably end up eating cold food most of the time rather than hot meals.

Several justices asked for examples of what might be appropriate accommodation of religion in the prison context.

Clement said a “reasonable accommodation” would be permitting an inmate to wear a religious medallion inside a shirt to prevent an outside display symbolizing membership in a gang.

But Cole, the Ohio solicitor, countered that a permitted medallion “can be pulled out” when the inmate is not under the watchful eye of a guard.

Justice Ruth Bader Ginsburg asked Cole if he thought the Establishment Clause would be violated if a state paid for prison chaplains but not for a psychologist for inmates who are agnostics. Cole called chaplains a government “tradition,” but said accommodations called for in RLUIPA go too far.

“Congress, in a sense, is asking judges to sit as overseers of religious life” in the state prison systems, he said.

Justice Antonin Scalia retorted that the law must be overseen by someone, whether it be wardens or judges.

“Somebody has to say what the lines are and that someone is going to be a government official,” he said.

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RLUIPA was enacted in 2000 with bipartisan support and broad agreement among members of a coalition of religious groups that ranged from evangelical Christians to Jews and Muslims. It came into law after the Supreme Court ruled in 1997 that the Religious Freedom Restoration Act violated states’ rights.

Wide religious agreement with the law continued in friend-of-the-court briefs before the high court, including one jointly filed by the National Association of Evangelicals and the Union of Orthodox Jewish Congregations of America.

Nathan Diament, director of public policy for the Orthodox Jewish umbrella group, said he was encouraged by the justices’ discussion.

“You can never tell from oral arguments, but the sense I got at least was that most of the justices were of a mind that the statute is balanced and will leave prison officials with the discretion that they need but prodding them to respect religious liberty where they can,” he said in an interview.

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A decision in the case is expected by summer.

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