Madison v. Riter , 355 F.3d 310 ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IRA W. MADISON, 
Petitioner-Appellant,
v.
R. RITER, a/k/a R. Ruter, CCS
Chairman; DUNCAN MILLS; D. J.
ARMSTRONG; GARY BASS, Chief of
Operations, CCS;
COMMONWEALTH OF VIRGINIA; LEWIS
B. CEI, Special Programs Manager,
Respondents-Appellees.  No. 03-6362
ALEPH INSTITUTE; AMERICAN CIVIL
LIBERTIES UNION; THE AMERICAN
JEWISH COMMITTEE; THE AMERICAN
JEWISH CONGRESS; THE BAPTIST JOINT
COMMITTEE ON PUBLIC AFFAIRS; THE
BECKET FUND FOR RELIGIOUS
LIBERTY; THE CHRISTIAN LEGAL
SOCIETY; PEOPLE FOR THE AMERICAN
WAY,
Amici Supporting Appellant.

2 MADISON v. RITER
UNITED STATES OF AMERICA, 
Intervenor-Appellant,
v.
R. RITER, a/k/a R. Ruter, CCS
Chairman; DUNCAN MILLS; D. J.
ARMSTRONG; GARY BASS, Chief of
Operations, CCS;
COMMONWEALTH OF VIRGINIA; LEWIS
B. CEI, Special Programs Manager,
Respondents-Appellees.  No. 03-6363
ALEPH INSTITUTE; AMERICAN CIVIL
LIBERTIES UNION; THE AMERICAN
JEWISH COMMITTEE; THE AMERICAN
JEWISH CONGRESS; THE BAPTIST JOINT
COMMITTEE ON PUBLIC AFFAIRS; THE
BECKET FUND FOR RELIGIOUS
LIBERTY; THE CHRISTIAN LEGAL
SOCIETY; PEOPLE FOR THE AMERICAN
WAY,
Amici Supporting Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-01-596-7)
Argued: October 28, 2003
Decided: December 8, 2003
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkinson wrote
the opinion, in which Judge Michael and Judge Duncan joined.
MADISON v. RITER 3
COUNSEL
ARGUED: Gene C. Schaerr, SIDLEY, AUSTIN, BROWN &
WOOD, L.L.P., Washington, D.C.; Michael Scott Raab, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellants. William Eugene Thro, Dep-
uty State Solicitor, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees. ON BRIEF: Richard H. Menard,
Jr., SIDLEY, AUSTIN, BROWN & WOOD, L.L.P., Washington,
D.C.; Robert D. McCallum, Jr., Assistant Attorney General, Stuart E.
Schiffer, Acting Assistant Attorney General, John L. Brownlee,
United States Attorney, Mark B. Stern, Appellate Staff, Civil Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants. Jerry W. Kilgore, Attorney General, William H.
Hurd, State Solicitor, Maureen Riley Matsen, Deputy State Solicitor,
Pamela A. Sargent, Senior Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
Kevin J. Hasson, Anthony R. Picarello, Jr., Roman P. Storzer, Derek
L. Gaubatz, THE BECKET FUND FOR RELIGIOUS LIBERTY,
Washington, D.C., for Amici Curiae.
OPINION
WILKINSON, Circuit Judge:
Appellant Ira W. Madison, a convict held in a Virginia Department
of Corrections prison, was denied his requests for kosher meals that
he claims his religious beliefs require. He sued the Commonwealth of
Virginia and officials of the Virginia Department of Corrections,
alleging among other claims a violation of section 3 of the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The
district court ruled that the provision had an impermissible effect of
advancing religion under the second prong of the Lemon test. See
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Because we find
that Congress can accommodate religion in section 3 of RLUIPA
without violating the Establishment Clause, we reverse. To hold oth-
erwise 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.
4 MADISON v. RITER
I.
A.
From 2000 to the present, Madison has claimed to be a member of
the Church of God and Saints of Christ, a congregation founded in
1896 and headquartered at Temple Beth El in Suffolk, Virginia.
Church members are commonly known as Hebrew Israelites, and they
claim to be "followers of the anointed God" who honor but do not
worship Jesus Christ. Most importantly for purposes of this case,
Madison’s church requires its members to abide by the dietary laws
laid out in the Hebrew Scriptures.
The parties dispute the timing of Madison’s conversion and his
affiliation with a wide range of other religious groups during his
incarceration. What is clear is that in July 2000 and again in March
2001, Madison informed correctional officials that his religious
beliefs required him to receive a kosher diet, defined as a "common
fare diet" by the Virginia Department of Corrections. Both requests
were approved by local prison officials, but denied by Department of
Corrections administrators in Richmond. The Commonwealth
rejected Madison’s requests because it determined that Madison
already had adequate alternatives from the regular, vegetarian, and no
pork daily menus; because it doubted the sincerity of Madison’s reli-
gious beliefs; and because it considered Madison’s history of disci-
plinary problems.
In August 2001, Madison challenged the denial of his request in
district court, relying in part on section 3 of RLUIPA. Section 3(a) of
RLUIPA states that "[n]o government shall impose a substantial bur-
den on the religious exercise of a person residing in or confined to an
institution . . . even if the burden results from a rule of general appli-
cability, unless the government demonstrates that imposition of the
burden on that person — (1) is in furtherance of a compelling govern-
ment interest; and (2) is the least restrictive means of furthering that
compelling government interest." 42 U.S.C. § 2000cc-1(a) (2000).
Section 3(b) of RLUIPA states that Section 3(a) applies whenever the
substantial burden at issue "is imposed in a program or activity that
receives Federal financial assistance." 42 U.S.C. § 2000cc-1(b)(1). In
2002 the Commonwealth Department of Corrections received $4.72
MADISON v. RITER 5
million — approximately 0.5% of its budget — from the federal gov-
ernment, thus triggering the statute’s applicability. Madison’s lawsuit
relied on section 4(a) of RLUIPA, which creates a private right of
action that allows any person to "assert a violation of this chapter as
a claim or defense in a judicial proceeding" and to "obtain appropriate
relief against a government." 42 U.S.C. § 2000cc-2(a).
The district court denied Madison’s motion for summary judgment
concerning his constitutional claims on August 23, 2002, and it
deferred ruling on his RLUIPA claim pending briefing and argument
on the statute’s constitutionality. The district court also granted the
United States leave to intervene to defend the statute, pursuant to 28
U.S.C. § 2403(a).
On January 23, 2003, the district court found that section 3 of
RLUIPA impermissibly advanced religion by offering greater legisla-
tive protection to the religious rights of prisoners than to other funda-
mental rights that were similarly burdened. See Madison v. Riter, 240
F. Supp. 2d 566, 577 (W.D. Va. 2003). The district court therefore
rejected Madison’s statutory claim, and simultaneously certified the
question of RLUIPA’s constitutionality for interlocutory appeal under
28 U.S.C. § 1292(b). Madison and the United States filed timely peti-
tions with this court to appeal the order, and their petitions were
granted.
B.
The legislative and judicial background that led to RLUIPA’s
enactment are important for considering Madison’s appeal. Congress
crafted RLUIPA to conform to the Supreme Court’s decisions in
Employment Division v. Smith, 494 U.S. 872 (1990), and City of
Boerne v. Flores, 521 U.S. 507 (1997). In Smith, the Court held that
laws of general applicability that incidentally burden religious con-
duct do not offend the First Amendment. See 494 U.S. at 890. The
neutrality principle in Smith largely complemented the traditional def-
erence that courts afford to prison regulations that impose burdens on
prisoners’ rights. See Turner v. Safley, 482 U.S. 78, 89-90 (1987).1 At
1
Turner v. Safley laid out a four-factor "rational-relationship" test for
analyzing the constitutionality of regulations that burden prisoners’ fun-
6 MADISON v. RITER
the same time, however, the Smith Court openly invited the political
branches to provide greater protection to religious exercise through
legislative action. See 494 U.S. at 890.
In 1993, Congress responded to Smith by enacting the Religious
Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq.,
which Congress claimed was premised on its remedial powers under
section 5 of the Fourteenth Amendment. RFRA prohibited federal and
state governments from "substantially burden[ing]" a person’s exer-
cise of religion, even as the result of a law of general applicability,
unless the government could demonstrate that the burden "(1) is in
furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental inter-
est." 42 U.S.C. § 2000bb-1(a)-(b).
The Supreme Court’s decision in City of Boerne v. Flores, 521
U.S. 507 (1997), invalidated RFRA as it applied to states and locali-
ties. The Court held that the scope of the statute exceeded Congress’s
remedial powers under section 5 of the Fourteenth Amendment. See
521 U.S. at 532-36.
While RFRA continued to apply to the federal government, see
Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002); O’Bryan v.
Bureau of Prisons, No. 02-4012, 2003 WL 22533454, at *2 (7th Cir.
damental rights. 482 U.S. at 89-90. Under Turner, courts must consider
(1) whether a "valid, rational connection [exists] between the prison reg-
ulation and the legitimate governmental interest put forward to justify it,"
(2) whether "alternative means of exercising the right [exist] that remain
open to prison inmates," (3) what "impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally," and (4) whether there was an
"absence of ready alternatives" to the regulation in question. Id. State and
local prison regulations that burden prisoners’ religious exercise have
been subject to this rational-relationship test. See O’Lone v. Estate of
Shabazz, 482 U.S. 342, 349-50 (1987); see also In re Long Term Admin-
istrative Segregation of Inmates Designated as Five Percenters, 174 F.3d
464, 468-69 (4th Cir. 1999); Hines v. South Carolina Dept. of Correc-
tions, 148 F.3d 353, 357 (4th Cir. 1998). The deferential test that courts
customarily apply to prison regulations, however, does not operate to
prevent legislative bodies from adopting a more searching standard.
MADISON v. RITER 7
Nov. 10, 2003), in September 2000, Congress attempted to reinstate
RFRA’s protection against government burdens on religious exercise
imposed by states and localities by enacting the Religious Land Use
and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et
seq. This statute mirrored the provisions of RFRA, but its scope was
limited to laws and regulations concerning land use and institutional-
ized persons. See 42 U.S.C. § 2000cc-1(a). RLUIPA’s enactment was
premised on congressional findings similar to those made for RFRA,
namely, that in the absence of federal legislation, prisoners, detainees,
and institutionalized mental health patients faced substantial burdens
in practicing their religious faiths. See Joint Statement of Senator
Hatch and Senator Kennedy, 146 Cong. Rec. S7774-01 (daily ed. July
27, 2000).
In passing RLUIPA, Congress sought to avoid Boerne’s constitu-
tional barrier by relying on its Spending and Commerce Clause pow-
ers, rather than on its remedial powers under section 5 of the
Fourteenth Amendment as it had in RFRA. See 42 U.S.C. § 2000cc-
1(b)(1) (establishing that Section 3 of RLUIPA applies whenever the
burden at issue "is imposed in a program or activity that receives Fed-
eral financial assistance"); 42 U.S.C. § 2000cc-1(b)(2) (establishing
that section 3 of RLUIPA applies in cases in which "the substantial
burden [on religion] affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several
States, or with Indian tribes").
II.
Among its numerous constitutional challenges to RLUIPA, the
Commonwealth contends that the statute violates the Establishment
Clause. The district court held that section 3 of RLUIPA violates the
Establishment Clause because it singled out the religious exercise
rights of prisoners for special protection. The district court explained:
[P]rison inmates exist in a society of universally limited
rights, one that is required by the nature of the institution.
When Congress acts to lift the limitations on one right while
ignoring all others, it abandons a position of neutrality
towards these rights, placing its power behind one system of
belief.
8 MADISON v. RITER
Madison, 240 F. Supp. 2d at 577. The district court stated that "the
practical effect of RLUIPA on the prison system in the United States
is to grant religious and professed religious inmates a multitude of
exceptions and benefits not available to non-believers." Id. at 580. It
concluded that "RLUIPA extends far beyond regulations targeting
religion, protecting religious inmates against even generally applica-
ble and facially neutral prison regulations that have a substantial
effect on a multitude of fundamental rights." Id. at 575-76.
Because Congress had failed to compile "demonstrable evidence
that religious constitutional rights are at any greater risk of depriva-
tion in the prison system than other fundamental rights," id. at 575,
the district court found that protecting the religious exercise of prison-
ers violated the Establishment Clause. It concluded that this provision
sends "non-religious inmates a message that they are outsiders of a
privileged community," id. at 580, and it unconstitutionally advanced
religion by providing an inmate with incentives to "claim religious
rebirth and cloak himself in the protections of RLUIPA." Id.The district court’s decision is at odds with two other circuits that
have examined this question and found that section 3 of RLUIPA
does not violate the Establishment Clause. See, e.g., Charles v. Verha-
gan, No. 02-3572, 2003 WL 22455960, at *6-7 (7th Cir. Oct. 30,
2003); Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir.
2002), cert. denied, No. 02-1655, 2003 WL 21180348 (U.S. Oct. 6,
2003); see also Williams v. Bitner, No. CV-01-2271, 2003 WL
22272302, at *4-5 (M.D. Pa. Sept. 30, 2003). Courts have also
rejected similar Establishment Clause challenges to the Religious
Freedom Restoration Act, whose religious accommodation provisions
are identical to section 3 of RLUIPA. See, e.g., In Re Young, 141 F.3d
854, 862-63 (8th Cir. 1998); Mockaitis v. Harcleroad, 104 F.3d 1522,
1530 (9th Cir. 1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir.
1996); EEOC v. Catholic. Univ. of Am., 83 F.3d 455, 470 (D.C. Cir.
1996); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996),
rev’d on other grounds, 521 U.S. 507 (1997). One circuit court, how-
ever, has relied extensively upon the district court’s decision in this
case to hold that section 3 of RLUIPA does violate the Establishment
Clause. See Cutter v. Wilkinson, No. 02-3270, 2003 WL 22513973,
at *4-9 (6th Cir. Nov. 7, 2003). It is this conclusion that we must
address with care.
MADISON v. RITER 9
This court must review de novo the constitutionality of a federal
law. See United States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001);
Farmer v. Employment Security Commission of North Carolina, 4
F.3d 1274, 1279 (4th Cir. 1993). The basic framework for Establish-
ment Clause challenges is well-settled: "[f]irst the [targeted] statute
must have a secular legislative purpose; second, its principal or pri-
mary effect must be one that neither advances nor inhibits religion;
finally, the statute must not foster an excessive government entangle-
ment with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971) (internal and quotations omitted). We address each of the three
Lemon prongs in turn.
A.
We first consider whether section 3 of RLUIPA has a legitimate
secular purpose. Lemon, 403 U.S. at 612-13. We are guided here by
the Supreme Court’s decision in Corporation of the Presiding Bishop
v. Amos, which established that Congress may accommodate the exer-
cise of faith by lifting government-imposed burdens on free exercise.
483 U.S. 327, 335 (1987). The Amos Court stated that the Establish-
ment Clause seeks to prevent government decisionmakers "from
abandoning neutrality and acting with the intent of promoting a par-
ticular point of view in religious matters." Id. But in commanding
neutrality, the Establishment Clause does not require the government
to be oblivious to the burdens that state action may impose upon reli-
gious practice and belief. Rather, there is "ample room under the
Establishment Clause for ‘benevolent neutrality which will permit
religious exercise to exist without sponsorship and without interfer-
ence.’" Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,
512 U.S. 687, 705 (1994) (quoting Amos, 483 U.S. at 334). The
Supreme Court therefore held in Amos that "it is a permissible legisla-
tive purpose to alleviate significant governmental interference with
the ability of religious organizations to define and carry out their reli-
gious missions." Amos, 483 U.S. at 335.
This alleviation of government burdens on prisoners’ religious
exercise is precisely the legitimate secular purpose that RLUIPA
seeks to advance. RLUIPA is not designed to advance a particular
religious viewpoint or even religion in general, but rather to facilitate
opportunities for inmates to engage in the free exercise of religion.
10 MADISON v. RITER
This secular goal of exempting religious exercise from regulatory bur-
dens in a neutral fashion, as distinguished from advancing religion in
any sense, is indeed permissible under the Establishment Clause. See
id.To be sure, Congress has no constitutional duty to remove or to
mitigate the government-imposed burdens on prisoners’ religious
exercise. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-50
(1987). But the Supreme Court has held that Congress may choose to
reduce government-imposed burdens on specific fundamental rights
when it deems it appropriate. The Supreme Court "has upheld a broad
range of statutory religious accommodations against Establishment-
Clause challenges." Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir.
2001). These include statutes that allow public school students time
off during the day solely for religious worship or instruction, see
Zorach v. Clauson, 343 U.S. 306, 315 (1952), property tax exemp-
tions for religious properties used solely for religious worship, see
Walz v. Tax Commission, 397 U.S. 664, 680 (1970), and exemptions
for religious organizations from statutory prohibitions against dis-
crimination on the basis of religion, see Amos, 483 U.S. at 335. While
RLUIPA’s scope may in some ways be broader than the specific reli-
gious exceptions that the Supreme Court has previously upheld, the
central principle — that Congress may legitimately minimize govern-
ment burdens on religious exercise — remains the same. Congress
here has acted properly in embracing this secular purpose.
B.
We next consider whether section 3 of RLUIPA has the impermis-
sible effect of advancing religion. See Lemon, 403 U.S. at 612-13.
The district court found that RLUIPA impermissibly advanced reli-
gion by according special protection only to prisoners’ religious exer-
cise. The district court stated:
The singling out of religious belief as the one fundamental
right of prisoners deserving of legislative protection rejects
any notion of congressional neutrality in the passage of
RLUIPA. In the absence of any proof that religious rights
are more at risk in prison than other fundamental rights, and
with the knowledge that strict scrutiny is not required to pro-
MADISON v. RITER 11
tect the religious belief of prisoners under the Free Exercise
Clause, Congress acted only to protect religious rights. Such
an action, while labeled a neutral "accommodation," is not
in fact neutral at all, and the Court is not allowed to defer
to the mere characterization of RLUIPA as such.
Madison, 240 F. Supp. 2d at 576.
We disagree. "For a law to have forbidden ‘effects’ under Lemon,
it must be fair to say that the government itself has advanced religion
through its own activities and influence." Amos, 483 U.S. at 337(emphasis in original). Evidence of the impermissible government
advancement of religion includes "sponsorship, financial support, and
active involvement of the sovereign in religious activity." Walz, 397
U.S. at 668. Here, however, Congress has not sponsored religion or
become actively involved in religious activity, and RLUIPA in no
way is attempting to indoctrinate prisoners in any particular belief or
to advance religion in general in the prisons. Congress has simply
lifted government burdens on religious exercise and thereby facili-
tated free exercise of religion for those who wish to practice their
faiths.
We cannot accept the theory advanced by the district court that
Congress impermissibly advances religion when it acts to lift burdens
on religious exercise yet fails to consider whether other rights are
similarly threatened. Madison, 240 F. Supp. 2d at 577; see also Cutter
v. Wilkinson, No. 02-3270, 2003 WL 22513973, at *7-8 (6th Cir.
Nov. 7, 2003). There is no requirement that legislative protections for
fundamental rights march in lockstep. The mere fact that RLUIPA
seeks to lift government burdens on a prisoner’s religious exercise
does not mean that the statute must provide commensurate protections
for other fundamental rights. Amos clearly established that "[w]here,
as here, government acts with the proper purpose of lifting a regula-
tion that burdens the exercise of religion, we see no reason to require
that the exemption comes packaged with benefits to secular entities."
Amos, 483 U.S. at 338.
The district court attempted to distinguish Amos from the present
case by stating that in Amos, Congress had found that Title VII’s pro-
hibitions on hiring or firing on the basis of religion had a much
12 MADISON v. RITER
greater effect on religious groups than on secular organizations. Madi-
son, 240 F. Supp. 2d at 577 n.9. While congressional supporters of
RLUIPA also emphasized the "egregious and unnecessary" burdens
that prison regulations impose on religious exercise, the district court
concluded that the restrictions inherent in prison life could not help
but burden other fundamental rights as well. Id. at 575. The district
court thus concluded that "[w]hen Congress acts to lift limitations on
one right while ignoring all others, it abandons neutrality towards
these rights, placing its power behind one system of belief." Id. at
577.
The Establishment Clause’s requirement of neutrality does not
mandate that when Congress relieves the burdens of regulation on one
fundamental right, that it must similarly reduce government burdens
on all other rights. Amos stands, as we have noted, for the simple
proposition that Congress can intervene to lift governmental burdens
on religious exercise. The Amos decision does not at all indicate that
Congress must examine how or if any other fundamental rights are
similarly burdened. The Amos Court in no way made its ruling turn
on a congressional finding that religious exercise was threatened more
by the application of Title VII than were other rights. It is doubtful
that such congressional findings — a compilation of evidence on how
all fundamental rights would or would not be affected by Title VII —
even existed. Regardless, such a heightened standard for congressio-
nal action was not part of the inquiry in Amos.2
Indeed, the context in which Congress was acting made it sensible
for Congress to lift only state-imposed burdens on free exercise
through RLUIPA. It was reasonable for Congress to seek to reduce
the burdens on religious exercise for prisoners without simultaneously
enhancing, say, an inmate’s First Amendment rights to access pornog-
raphy. Free exercise and other First Amendment rights may be
2
A concurrence in City of Boerne v. Flores admittedly states a view
related to that of the district court. 521 U.S. at 536-37 (Stevens, J., con-
curring) (holding that the Religious Freedom Restoration Act provides
religious groups "with a legal weapon that no atheist or agnostic can
obtain" and thus constitutes a "governmental preference for religion, as
opposed to irreligion"). This view, however, has not been adopted by the
Supreme Court.
MADISON v. RITER 13
equally burdened by prison regulations, but the Constitution itself
provides religious exercise with special safeguards. And no provision
of the Constitution even suggests that Congress cannot single out fun-
damental rights for additional protection. To attempt to read a require-
ment of symmetry of protection for fundamental liberties would not
only conflict with all binding precedent, but it would also place prison
administrators and other public officials in the untenable position of
calibrating burdens and remedies with the specter of judicial second-
guessing at every turn.
Apart from advancing religion, the district court further found that
RLUIPA may create incentives for secular prisoners to cloak secular
requests in religious garb and thus may increase the burden on state
and local officials in processing RLUIPA claims. See Madison, 240
F. Supp. 2d at 580. This may be true, but it is simply not a concern
under the Establishment Clause. Any additional burdens that RLUIPA
may impose on states and localities speak more to the wisdom of the
law and to the disincentives for states to assume their RLUIPA obli-
gations than to RLUIPA’s validity under the Establishment Clause.
We therefore conclude that section 3 of RLUIPA has the effect of lift-
ing burdens on prisoners’ religious exercise, but does not impermiss-
ibly advance religion.
C.
We further conclude that section 3 of RLUIPA does not create
excessive government entanglement with religion in violation of the
third prong of the Lemon test. See Lemon, 403 U.S. at 612-13; see
also Agostini v. Felton, 521 U.S. 203, 232-35 (1997) (suggesting that
the effects and entanglement prongs of Lemon focus on substantially
the same factors). While the statute may require some state action in
lifting state-imposed burdens on religious exercise, RLUIPA does not
require "pervasive monitoring" by public authorities. Agostini v. Fel-
ton, 521 U.S. at 233-34; see also Mayweathers v. Newland, 314 F.3d
1062, 1069 (9th Cir. 2002). RLUIPA itself minimizes the likelihood
of entanglement through its carefully crafted enforcement provisions.
For example, the statute’s broad definition of "religious exercise" to
"include any exercise of religion, whether or not compelled by, or
central to, a system of religious belief," 42 U.S.C. § 2000cc-5(7)(A),
14 MADISON v. RITER
mitigates any dangers that entanglement may result from administra-
tive review of good-faith religious belief.
D.
Section 3 of RLUIPA thus satisfies the three prongs of the Lemon
test. The opposite conclusion, we believe, would work a profound
change in the Supreme Court’s Establishment Clause jurisprudence
and in the ability of Congress to facilitate the free exercise of religion
in this country. It would throw into question a wide variety of reli-
gious accommodation laws. It could upset exemptions from compul-
sory military service for ordained ministers and divinity students
under federal law, since these exemptions are not paired with parallel
secular allowances or provisions to protect other fundamental rights
threatened by compulsory military service. See 50 U.S.C. App.
§ 456(g) (2000). It would similarly imperil Virginia’s and other
states’ recognition of a "clergy-penitent privilege," which exempts
from discovery an individual’s statements to clergy when "seeking
spiritual counsel and advice." See, e.g., Va. Code Ann. §§ 8.01-400,
19.2-271.3 (2000). Other specific religious accommodation statutes,
ranging from tax exemptions to exemptions from compulsory public
school attendance, see, e.g., Va. Code Ann. § 22.1-254(B) (2000),
would also be threatened.
Perhaps more importantly, the principle of neutrality advanced by
the district court would create a test that Congress could rarely, if
ever, meet in attempting to lift regulatory burdens on religious entities
or individuals. For example, if Congress sought to grant religious
organizations an exemption from a particularly demanding legal
requirement, then Congress might have to grant similar exemptions to
radio and TV stations or secular advocacy groups, absent congressio-
nal findings that free exercise rights were somehow more endangered
by the law than other rights. Congress would have to make determina-
tions in every instance of what fundamental rights are at risk and to
what degree they are at risk, and it would be able only to heighten
protection for fundamental rights in a symmetric fashion according to
these assessments. The byzantine complexities that such compliance
would entail would likely cripple government at all levels from pro-
viding any fundamental rights with protection above the Constitu-
tion’s minimum requirements.
MADISON v. RITER 15
III.
A.
The Commonwealth recognized at argument the problematic nature
of the trial court’s rationale, but pressed several alternative points in
support of affirmance which we feel obliged to address. It first con-
tends that RLUIPA’s mandate for the religious accommodation of
prisoners violates the Establishment Clause because it subjects third
parties to substantial burdens. The Commonwealth relies primarily on
Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710-11 (1985), for
this contention. In Caldor, a Connecticut statute required employers
to excuse employees from work on whatever day the employee desig-
nated as his Sabbath. Id. at 708. Importantly, that statute mandated the
accommodation of the religious needs of not only state employees,
but also private employees. The Supreme Court struck the statute
down on Establishment Clause grounds because it imposed significant
burdens on private employers by requiring them to lift privately-
imposed burdens on religious exercise. Id. at 708-10.
It is true that section 3 of RLUIPA also seeks to have third parties
— states accepting federal correctional funds — accommodate reli-
gious needs. But any comparison between RLUIPA and the statute in
Caldor ends there. Caldor concerned an unfunded mandate imposed
on private employers to lift privately-imposed burdens on the reli-
gious exercise of employees. Here the Commonwealth has voluntarily
committed itself to lifting government-imposed burdens on the reli-
gious exercise of publicly institutionalized persons in exchange for
federal correctional funds. These distinctions make the Common-
wealth’s reliance on Caldor unpersuasive.
B.
The Commonwealth also protests that RLUIPA’s compelling inter-
est test will bind its hands and make it nearly impossible for the Com-
monwealth to prevail if prisoners challenge burdens on their religious
exercise. The district court echoed this concern by proclaiming that
"the change that RLUIPA imposes is revolutionary, switching from
a scheme of deference to prison administrators to one of presumptive
unconstitutionality." Madison, 240 F. Supp. 2d at 575.
16 MADISON v. RITER
We do not make light of this concern. RLUIPA may impose bur-
dens on prison administrators as they act to accommodate an inmates’
right to free exercise. But RLUIPA still affords prison administrators
with flexibility to regulate prisoners’ religious practices if the Com-
monwealth "demonstrates that imposition of the burden on that person
— (1) is in furtherance of a compelling government interest; and (2)
is the least restrictive means of furthering that compelling government
interest." 42 U.S.C. § 2000cc-1(a).
Moreover, the experience of federal correctional officials in com-
plying with RLUIPA’s predecessor statute, RFRA, suggests that the
similar provisions of RLUIPA would not impose an unreasonable
burden on state or local prisons. In the cases litigated under RFRA,
federal correctional officials have continued to prevail the over-
whelming majority of the time. See Developments in the Law - Reli-
gious Practice in Prison, 115 Harv. L. Rev. 1891, 1894 (2002). This
fact suggests that RLUIPA should not hamstring the ability of the
Commonwealth’s correctional officials to ensure order and safety in
the Commonwealth’s prisons.
Admittedly, prison administrators’ litigation successes may
obscure the extent to which RLUIPA provides incentives for adminis-
trators to accommodate religious needs before litigation. But there is
little empirical evidence from the federal government’s experience
under RFRA to suggest that the Commonwealth’s compliance with
RLUIPA will prove unworkable. And if it does, the Commonwealth
at any time can decline the federal government’s correctional funding.
State legislators or administrators may weigh the burdens and benefits
of RLUIPA and reject the federal funding if the tie-in of religious
accommodation is not worth the financial benefits. In the final analy-
sis, however, practical difficulties speak more to the wisdom of the
legislation than to the precise Establishment Clause challenge under
review in this appeal.
IV.
Our society has a long history of accommodation with respect to
matters of belief and conscience. If Americans may not set their
beliefs above the law, there must be room to accommodate belief and
faith within the law. See Smith, 494 U.S. at 878-79. Regardless of the
MADISON v. RITER 17
nature of their beliefs, people must pay taxes and observe other secu-
lar laws of general applicability. See Minersville School Dist. v. Gobi-
tis, 310 U.S. 586, 594-95 (1940). However, legislative bodies have
every right to accommodate free exercise, so long as government does
not privilege any faith, belief, or religious viewpoint in particular.
Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.
687, 696-97 (1994). Section 3 of RLUIPA fits comfortably within this
broad tradition.
We thus cannot find that section 3 of RLUIPA creates an Establish-
ment Clause violation. We address here only the Establishment
Clause challenge to RLUIPA. The Commonwealth has challenged the
statute on a variety of other grounds, namely that it exceeds Con-
gress’s authority under the Spending and Commerce Clauses and that
it runs afoul of the Tenth and Eleventh Amendments. We do not
address these issues in this interlocutory appeal because the district
court has not yet had sufficient opportunity to consider them. The
Commonwealth also argues that it retains the exclusive authority to
regulate in a zone of discretion between what the Establishment
Clause prohibits and what the Free Exercise Clause requires.
Although couched in religious terms, this is really a variant of the
Commonwealth’s many federalism-based or residual power conten-
tions, which we have left to the district court on remand.
The judgment is therefore reversed, and the case is remanded to the
district court for further proceedings.
REVERSED AND REMANDED