New York Times

Supreme Court Rules on Religion in Prison

LINDA GREENHOUSE

DATELINE: WASHINGTON, May 31

BODY:


The Supreme Court ruled unanimously on Tuesday that a new federal law requiring prison officials to meet inmates' religious needs is a permissible accommodation of religion that does not violate the separation of church and state.

The court rejected arguments by Ohio officials that the law, the Religious Land Use and Institutionalized Persons Act, violated the Constitution by elevating religion above all other reasons a prisoner might seek special privileges.

The state had said that by requiring prison officials to cater to the demands of adherents of Satanist or white-supremacist religions, the law would result in attracting new followers to these sects, to the detriment of prison security.

The five Ohio inmates who brought the case belong to nonmainstream religions, including one, Asatru, that preaches that the white race needs to use violence and terrorism to prevail over the ''mud races.''

In her opinion for the court, Justice Ruth Bader Ginsburg said the state's fears were unfounded. The Congressional sponsors ''were mindful of the urgency of discipline, order, safety, and security in penal institutions,'' she said, and ''we do not read'' the law to ''elevate accommodation of religious observances over an institution's need to maintain order and safety.''

Justice Ginsburg said that under Ohio's constitutional argument, which the federal appeals court in Cincinnati accepted last year in invalidating the statute, ''all manner of religious accommodations would fall.'' She noted that many accommodations have been widely accepted: Ohio itself provides prison chaplains for ''traditionally recognized'' religions, and Congress has authorized military personnel to wear yarmulkes and other religious apparel while in uniform despite a Supreme Court ruling that such an accommodation was not constitutionally required.

The Supreme Court has had a sometimes troubled history of defining where the two religion clauses of the First Amendment overlap: the Free Exercise Clause, which protects religious practice from government interference, and the Establishment Clause, which in Justice Ginsburg's words ''commands a separation of church and state.''

From the tone of this latest decision, Cutter v. Wilkinson, No. 03-9877, it appeared that the court was seeking to defuse the tension inherent in the two clauses. ''Our decisions recognize that there is room for play in the joints between the clauses, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause,'' Justice Ginsburg said.

The ruling marked the latest chapter in a 15-year dialogue among the court, Congress and the states over the degree to which the government may take religious interests into account in law or official policy. The statute in question, passed in 2000, is a direct outgrowth of that dialogue, which began with a 1990 Supreme Court case from Oregon, Employment Division v. Smith.

The court ruled in that case, about American Indians' religious use of an illegal substance, peyote, that the government's refusal to grant religion-based exemptions to the general application of its laws did not violate the Free Exercise Clause.

Congress reacted swiftly and, by large margins in both houses, passed the Religious Freedom Restoration Act, which required the government to accommodate religious practices unless it had a ''compelling'' reason not to do so.

In 1997, the Supreme Court, taking the Religious Freedom Restoration Act to be an assault on its institutional prerogatives, declared it unconstitutional on the ground that Congress lacked authority, at least in the circumstances of that case, to define the meaning of a constitutional provision and to impose that meaning on the states. The full impact of that decision, City of Boerne v. Flores, continues to play out across the court's federalism docket.

The law's supporters regrouped and arrived at a different approach. The Religious Land Use and Institutionalized Persons Act addressed only two types of government action: zoning and the rights of inmates of prisons, government-run mental hospitals and other public institutions.

Unlike the original statute, Congress passed the new law under its power to control spending and to attach strings to the receipt of federal funds; any state or local government that accepted federal dollars for land development or prisons had to agree to apply the ''compelling interest'' standard for any policy that interfered with religious practice.

Whether this was an appropriate use of the Congressional spending power remains unresolved. Neither the lower court nor Justice Ginsburg addressed that question, but Justice Clarence Thomas, in a concurring opinion, suggested that a state that accepted the federal money might have waived its objection. ''The states' voluntary acceptance of Congress' condition undercuts Ohio's argument that Congress is encroaching on its turf,'' he said.

It remains open to Ohio to return to the lower courts and argue that the law violates either Congress's spending authority or its power to regulate interstate commerce. The section of the law dealing with land use was not before the Supreme Court in this case. Cases challenging that section, which usually arise when a church seeks an exception from zoning laws, are making their way through the lower courts.

The case the court decided Tuesday began before passage of the new law. The Ohio inmates complained that officials were withholding religious publications and items, denying them access to religious services, and generally discriminating against them as compared with prisoners who belonged to mainstream religions.

When the new law took effect, the inmates, represented by a clinical legal program at the Ohio State University Moritz College of Law, invoked it in amended complaints. Ohio argued that the law was unconstitutional, and the federal government intervened to defend it. The case never went to trial. The federal district court refused to dismiss the lawsuit, but the United States Court of Appeals for the Sixth Circuit held that the law violated the Establishment Clause ''by giving greater protection to religious rights than to other constitutionally protected rights.''

In her opinion, Justice Ginsburg emphasized that the court was only evaluating the law ''on its face.'' Particular arguments, including the state's assertion that the law would foment gang activity, are to be evaluated as cases arise, she said. She added: ''It bears repetition, however, that prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this area.''

For purposes of this preliminary ruling, she said, the law ''fits within the corridor between the Religion Clauses: on its face, the act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.''

In another action on Tuesday, the court agreed to review the constitutionality of the Kansas death penalty law.

The Kansas Supreme Court declared the law unconstitutional in a 4-to-3 decision six months ago, on the ground that it impermissibly made a death sentence automatic unless the sentencing jury found mitigating circumstances to outweigh any aggravating circumstances. Under what was known as an ''equipoise provision,'' if the two categories were equal in the jury's mind, the law provided that ''the defendant shall be sentenced to death.''

The state court's ruling caused an uproar in Kansas and led the state Senate to pass a resolution asking the United States Supreme Court to overturn the decision. The state's appeal, Kansas v. Marsh, No. 04-1170, said that death penalty laws in Arizona and Idaho were also at stake.

URL: http://www.nytimes.com

CORRECTION-DATE: June 4, 2005

CORRECTION:


An article on Wednesday about a Supreme Court decision upholding a law that requires prison officials to accommodate the religious needs of inmates included an incomplete description of the Asatru religion practiced by some inmates in the case. Based on the brief the Ohio attorney general submitted to the court, the article characterized Asatru as advocating violence by the white race against the ''mud races.'' But other Asatru followers say that the use that some violent and white-supremacist prisoners make of the religion is a perversion of its peaceful and nonracist beliefs.