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WASHINGTON — Meeting for the first time since it recessed in June, the U.S. Supreme Court convenes in a closed conference Sept. 27 to consider more than 1,900 new cases that have piled up on its doorstep over the summer. Leading the list of cases that might be granted review at the conference are several First Amendment establishment clause disputes involving the religious rights of prison inmates and Ten Commandments displays on public property. The high court will announce in the days following the conference whether it will add the cases to its docket for argument and decision. The Ten Commandments cases may grab the headlines, but the Virginia prison rights case, Bass v. Madison, 03-1404, may have a better chance of being granted review by the court, especially since all the parties, including the U.S. Office of the Solicitor General, are urging the high court to take it up. Bass offers the Supreme Court its first chance to rule on the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000. The law, passed with bipartisan support, and at the urging of religious and civil liberties groups, gave new protections for religious practitioners against government restrictions. It was a successor to the Religious Freedom Restoration Act, struck down by the high court in 1997. One section has aided churches involved in zoning disputes, but the provision at issue before the Supreme Court prohibits federally funded programs from burdening the religious exercise of inmates and other institutionalized people without a “compelling governmental interest.” Ira Madison, serving time in Virginia prisons on drug possession charges, sued under the law after prison officials turned down his request to be served kosher food. While the state does provide for serving kosher food to inmates, officials “doubted the sincerity of Madison’s religious beliefs,” according to its brief filed with the court. Madison said he was a member of a Virginia-based congregation of “Hebrew Israelites,” but the state says he has also professed several other faiths since first being imprisoned in 1991. Judge James Turk of the U.S. District Court for the Western District of Virginia rejected Madison’s claim in 2003 and declared the RLUIPA unconstitutional. Turk reasoned that by elevating the importance of religious freedom over other rights protected by the First Amendment, the law violated the government neutrality toward religion that is required by the establishment clause. In December, a panel of the Fourth Circuit U.S. Court of Appeals reversed. “To hold otherwise and find an establishment clause violation would severely undermine the ability of our society to accommodate the most basic rights of conscience and belief in neutral yet constructive ways,” wrote Judge J. Harvie Wilkinson III, joined by Judges M. Blane Michael and Allyson Duncan. Virginia appealed to the Supreme Court, asking it to resolve a split among the circuits on the establishment clause issue and, citing federalism grounds, challenging the power of Congress to intrude on state administration of prisons. The petition was filed in April on behalf of Virginia Attorney General Jerry Kilgore by then-State Solicitor William Hurd, who is now of counsel at the Richmond, Va., office of Troutman Sanders. Hurd also told the high court that inmates have exploited the law to thwart legitimate anti-gang restrictions involving prison garb and appearance. The circuit split was created by a Sixth Circuit ruling that is also before the high court on appeal — Cutter v. Wilkinson, 03-9877. In that ruling, which involved religious claims by several Ohio prison inmates, the circuit panel found that the RLUIPA is unconstitutional because of its “message of endorsement” that “has the effect of encouraging prisoners to become religious in order to enjoy greater rights.” The Justice Department, which intervened in the case to defend the constitutionality of the act, also wants the high court to take up Bass v. Madison and is urging the justices to hold Cutter in abeyance until Bass is decided. Inmate Madison has also joined the chorus urging high court review, even though he won in the court below. Madison’s pro bono attorney, Gene Schaerr, a partner at the D.C. office of Sidley Austin Brown & Wood, explains that Madison had both personal and altruistic reasons for acquiescing in the appeal. “He is a public-spirited person who would like to see the law upheld,” says Schaerr. But also, as an incentive to agree to high court review, Schaerr says the state offered to serve Madison kosher meals while the case is pending. Madison, whose sentence runs until 2007, agreed. Schaerr, who often represents religious organizations, testified before Congress in favor of the law before it was passed, and serves as co-chair of the RLUIPA litigation task force along with Elliot Mincberg of People for the American Way. “There is a clear and acknowledged conflict among the circuits, and it is not going to ripen with age,” says Schaerr. “It is also not going to go away.” Separately, four cases involving challenge to Ten Commandments displays on public property are also on the court’s Sept. 27 agenda, with others to follow at later conferences this fall. Also pending for that conference is a petition filed by ousted Alabama Chief Justice Roy Moore, which also involves his controversial Ten Commandments display but raises a different constitutional issue. Whether the court will want to tackle the hot-button Ten Commandments issue is hard to predict, says George Washington University Law School professor Ira Lupu. “Where they are closely divided on such a charged issue, I think they are going to deny the petitions,” he says. The justices have passed up several chances to consider the issue since the court’s 1980 ruling in Stone v. Graham. In that brief, unsigned 5-4 decision, the high court struck down a Kentucky law that required posting the Ten Commandments in all public school classrooms. Since then, more than two dozen lower courts have ruled in conflicting ways on a range of Ten Commandments displays. “The Supreme Court needs to step in and clarify an increasingly confusing area of the law,” says Jay Sekulow, chief counsel of the American Center for Law and Justice, who has defended Ten Commandments displays against several lawsuits. In the cases before the Supreme Court, advocates on both sides are in agreement that the court needs to resolve substantial and persistent circuit splits on an issue that is unlikely to fade. “Ten Commandments litigation is not just a breezy summer pastime; it represents an ongoing and metastasizing philosophical battle,” says Thomas Fisher, special counsel to Indiana Attorney General Steve Carter, in an amicus curiae brief filed in Van Orden v. Perry, 03-1500, one of the cases the court will decide whether to review. The Indiana brief was joined by the attorneys general of Alabama, Delaware, Florida, Kansas, North Dakota, South Carolina, Utah and Virginia, all of whom favor allowing the displays. Van Orden challenges a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The 6-foot-high granite monument includes several religious and patriotic symbols — including the Star of David — along with what the appeals court described as a “nonsectarian version” of the Ten Commandments. Austin resident Thomas Van Orden sued, claiming the monument violates the First Amendment’s establishment clause. In a unanimous ruling in November by a three-judge panel of the Fifth Circuit, Judge Patrick Higginbotham wrote that the Ten Commandments “have both a religious and secular message,” noting that the Texas Legislature accepted the monument as a gift from the Fraternal Order of Eagles to honor the Boy Scouts of America. “We are not persuaded that a reasonable viewer touring the Capitol and its grounds, informed of its history and its placement, would conclude that the state is endorsing the religious rather than the secular message of the Decalogue,” Higginbotham added. He also found it significant that the monument had gone unchallenged for more than 40 years. “History matters here,” Higginbotham wrote. Judges Edward Prado and Carl Stewart joined the opinion. In his petition to the Supreme Court on behalf of Van Orden, Duke University School of Law professor Erwin Chemerinsky said circuit courts are hopelessly divided on the issue, with three circuits allowing Ten Commandments displays to remain, and four finding them unconstitutional. Three cases from the Sixth Circuit striking down Ten Commandments displays are also before the high court for consideration Sept. 27. McCreary County, Ky. v. ACLU of Kentucky, 03-1693, and Harlan County, Ky. v. ACLU of Kentucky, 03-1698, both resulted from lawsuits the American Civil Liberties Union of Kentucky and several Kentucky citizens brought challenging Ten Commandments displays in 1999. The first suit involves displays inside courthouses, while the second case challenges the placement of Ten Commandments plaques on classroom walls. A divided panel of the Sixth Circuit found that the displays were unconstitutional in part because of the “blatantly religious” content of the Ten Commandments. In a brief to the high court on behalf of defenders of the Kentucky displays, Mathew Staver of the Florida-based Liberty Counsel said, “The Sixth Circuit’s opinion fell into the trap of assuming that the reasonable observer was either ignorant or bent on a mission to eradicate religious symbols.” Also on the Sept. 27 docket is an Ohio case, Johnson v. Baker, 03-1661, in which the Sixth Circuit struck down high school Ten Commandments displays. In Moore v. Judicial Inquiry Commission of the State of Alabama, 04-153, the issue is whether the former Alabama chief justice was unconstitutionally removed from office for placing a Ten Commandments monument in the rotunda of the Alabama State Judicial Building in 2001. After his actions were challenged in federal court, Moore resisted repeated orders to remove the display. In November, the state Court of the Judiciary, which weighs ethics complaints against judges, ordered Moore removed from office for defying the orders. In his appeal to the Supreme Court, Moore contends the Alabama action amounted to a religious test for holding office, in violation of Article VI of the U.S. Constitution and the free exercise clause of the First Amendment. Tony Mauro is Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected] Legal Times intern Christine Garton contributed to this article.

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