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The 6th u.s. circuit Court of Appeals broke with five of its sister circuits in declaring unconstitutional a federal law that requires state prisons to accommodate the religious practices of inmates. In an opinion by Judge Ronald Lee Gilman, the three-member panel said that 42 U.S.C. 2000cc-1, written into law by the Religious Land Use and Institutionalized Persons Act of 2000, offends the First Amendment establishment clause. Cutter v. Wilkinson, No. 02-3270, is dated Nov. 7. Section 2000cc-1 states that “no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the prison demonstrates that the burden serves a compelling governmental interest in the least restrictive way possible. The problem with the statute, Gilman wrote, is that it “has the effect of impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights.” The fact that prisons can override a prisoner’s free exercise rights when there are compelling reasons demonstrates the statute’s favoritism, he said. Under Supreme Court case law, prisons may curtail other fundamental rights-to marry, to be free from racial discrimination, to have meaningful access to the courts-unless inmates can prove that the restriction is not reasonably related to a legitimate governmental purpose. The statute teaches inmates that the best way to force a prison to bend its rules in their favor is to get religion, Gilman suggested. The 7th and 9th circuits have explicitly upheld § 2000cc-1. The 5th, 8th and D.C. circuits have upheld virtually identical language in the Religious Freedom Restoration Act (the Supreme Court struck that act down in 1997, but for other reasons). Those courts relied heavily on Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327. In that 1987 case, the Supreme Court upheld a Title VII provision that gave special treatment to religious organizations by exempting them from the duty to refrain from discriminating on the basis of religion. Gilman argued that Amos is not apropos because failing to make an accommodation in that case would have been a violation of the free exercise rights of religious institutions. The same can’t be said in the case at hand, Gilman added, because the Supreme Court has ruled that the “reasonable relation” test adequately protects inmates’ free-exercise rights. Fellowship or Gang Meeting? It could be that facts are as much a driving force in the split between the circuits as lofty principle. The 7th Circuit case upholding § 2000cc-1, decided in October, concerned a Muslim inmate who was prevented from bringing prayer oil into his cell because prison officials did not consider it central to his faith. Charles v. Verhagen, No. 02-3572. The 2002 decision from the 2d Circuit, Mayweathers v. Newland, 314 F.3d 1062, was prompted by a prison regulation that penalized inmates who missed work detail to attend Islamic services. The Ohio inmates in Cutter belong to less traditional sects, predominantly Asatru, a revival of pre-Christian European paganism. According to Todd R. Marti, the Ohio assistant solicitor who argued the case, white supremacists who used to belong to the Christian Identity movement before prison officials caught on that it was a gang cover, underwent a suspicious mass conversion to Asatru. He said that the state has evidence that Asatru is used to evade rules segregating gang members and that its symbols are incorporated into tattoos denoting gang rank. The inmates’ attorney, Professor David A. Goldberger of the Ohio State University College of Law, questioned the quality of the state’s evidence and said Asatru is a genuine religion practiced not only by inmates. Young’s e-mail is gyoungnlj.com.

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