Cutter v. Wilkinson - Oral Argument

Argument of Paul D. Clement

Chief Justice Rehnquist: We'll hear argument next in No. 03-9877, Jon Cutter v. Reginald Wilkinson.

Mr. Clement.

Mr. Clement: Mr. Chief Justice, and may it please the Court:

When the government acts to remove government-imposed burdens on religious exercise, it does not violate the Establishment Clause.

Rather, as this Court put the point in Zorach against Clauson, when the government eases those kind of burdens, it follows the best of our traditions.

The Religious Land Use and Institutionalized Persons Act, or RLUIPA, eases government burdens on restrictions by having institutions and prison officials examine burdens on religious exercise and remove unjustified, substantial burdens.

Chief Justice Rehnquist: But, you know, when you say it eases burdens, it doesn't just ease burdens imposed by the Federal Government.

It eases burdens imposed by State governments.

Mr. Clement: That's exactly right, Mr. Chief Justice, but I think that... that that doesn't make any substantial difference, in part, I think because if you think about certainly this application of RLUIPA, it's Spending Clause legislation.

And spending legislation often takes the form of giving the States an incentive to take action on their own.

And in this sense, I think you can understand this legislation as giving the States an opportunity to remove their own burdens on religious exercise.

And that's precisely how it works in practice.

The relevant action that a State takes is State action removing its own burdens, not Federal action imposed on the States.

And I think that's consistent with the analysis of this Court in the Dole case where the Federal Government, on the assumption of this Court, didn't have the direct power under the 21st Amendment to raise the drinking age, but it could give the option to the States to exercise their power to do it.

So I do think in the end, the burdens that are removed here are attributable to the State of Ohio, not to the Federal Government.

It is also true that the standard that's imposed by RLUIPA is a more exacting standard than that imposed by the Federal Constitution itself.

But I don't think providing for greater accommodation of religious exercise than the Federal Constitution creates an Establishment Clause problem.

Chief Justice Rehnquist: But in... in the City of Boerne, didn't we say that Congress couldn't come in and simply rewrite some part of the Constitution to make it read differently than we had?

Mr. Clement: Absolutely, Mr. Chief Justice, but I don't think this case poses the same problems as City of Boerne.

First of all, this really isn't an effort to rewrite a rule of decision for all cases the way that RFRA was.

Congress in this legislation targeted two areas where there were particular problems with respect to religious exercise, and in those contexts, it addressed a different standard.

Now, as I say, that standard is higher, but so are the standards of over half of the States which also apply a heightened scrutiny test either as a matter of State constitutional law or State law.

Justice Scalia: Well, RFRA didn't involve a... a limitation to situations in which Federal funds were involved, and as I understand this statute does.

Mr. Clement: That is also true.

I mean, there... there is... to be sure there is--

Justice Scalia: More than also.

I... that seems to me the principal difference between this and RFRA.

Mr. Clement: --Well, I take your point, Justice Scalia.

I would... I would clarify that there is the potential for applications to the statute under the Commerce Clause.

We don't think that's really appropriately presented here.

We also think that with respect to State prisons in all their applications, they will be Spending Clause applications.

Justice Ginsburg: Is that... what you're saying is academic because the statute doesn't require a Federal spending hook.

It says it has the other commerce peg.

I take it you... you gave a pragmatic answer to that, that every State in fact gets Federal funds for their prison systems.

Mr. Clement: That's right, Justice Ginsburg, and I think the fact that there may be more than one hook for this legislation in certain applications shouldn't make any constitutional difference.

And I think here it is Spending Clause legislation as it applies to the State of Ohio.

I think that's conceded.

They... they take issue with whether it's valid.

Justice Stevens: But, Mr. Clement, it seems to me the Spending Clause aspect cuts in the other direction, if we're just focusing on the Establishment Clause.

The fact that Federal money is involved, why does that make your burden any less in defending the... the statute under the Establishment Clause?

Mr. Clement: Well, Justice Stevens, I don't think the fact that there's money involved makes it harder or easier from a Spending Clause perspective.

I think from the perspective of why this case is different from Boerne, the fact that it's Spending Clause and Commerce Clause and not section 5 legislation makes a big difference.

But I certainly don't want to leave you with the impression that there's anything constitutionally problematic because there's Federal money involved because, of course, this Court has upheld Federal Spending Clause legislation in religion areas in cases like Zobrest, Mergens, Agostini, Mitchell against Helms.

Justice Stevens: Do you... do you think the Establishment Clause issue in this case would be the same as the Establishment Clause issue in City of Boerne if we... if the Court had reached the Establishment Clause issue in that case?

Mr. Clement: No, I don't, Justice Stevens.

Or another way of answering that is I would say that even though you thought there was an Establishment Clause problem in the City of Boerne case, I don't think you need to find one here.

And part of that is because this is more targeted legislation, and it particularly deals, as... as it comes to this Court in this application, with the exercise of religion in prisons.

And I think that's an area like the military where the Government is necessarily going to be involved with religion in a way that it otherwise wouldn't be.

Justice O'Connor: And yet, it... it provides an unusual framework or incentive, if you will, in the prison context to get religion.

If you can find some religious group that espouses drinking beer every day or other alcoholic beverages or taking certain amounts of marijuana or no telling what or having certain clothing or other things that would alter the conditions of the prison environment, there's a real incentive here to get religion.

[Laughter]

And the--

Mr. Clement: Justice O'Connor--

Justice O'Connor: --Federal Government seems to be trying to provide those incentives.

Is that a problem?

Mr. Clement: --Well, Justice O'Connor, I don't think upon analysis it is, and I think there's a couple of reasons why that's so.

First of all, this is not an absolute entitlement to get your religious beer at 5:00 p.m. every day.

It is a balancing test, and I think things like getting beer every day, getting marijuana inside prison walls would not satisfy the test.

Justice O'Connor: Well, the... the language of the statute is pretty strong: unless the government demonstrates that the imposition is the least restrictive means and in furtherance of a compelling legislative interest.

It puts quite a burden on the State.

Mr. Clement: Well, it does, Justice O'Connor, but just to take a step back, I mean, applying that same standard in the Smith case, you yourself thought that a general law banning marijuana use outside or... or peyote use outside--

Justice O'Connor: Yes, I think it was.

Mr. Clement: --peyote outside of prison would be justified even under that standard.

I would think, a fortiori, it would be justified within prison walls.

I want to make another point about the incentives, though, which I think is important.

Every State in the Union provides some degree of accommodation for religion, and in many States it's majoritarian religions that are accommodated.

Now, if there's going be some incentive to engage in religiosity in prison in order to take advantage of things offered for religion that aren't available for something else, at least RLUIPA has the virtue of making sure that all religions are accommodated neutrally.

So if there's any incentive, it's an incentive for religion over irreligion as opposed to between sects... sects of religions, and I think that's the way you would have without RLUIPA involved.

The other point I want to make is although there may be some extravagant claims of certain religions that would seem quite enticing, much religious exercise in many of the reported cases involve things that I don't think people are necessarily lining up to do.

I mean, there are a number of lower court cases dealing with the availability of kosher food, and in prison what that means as a practical matter, is generally you are going to get cold food rather than hot food.

And I don't think--

Justice Ginsburg: What about garb that is said to be associated with the religion but also is used as a cue for gang membership?

Let's say a beard.

This religion requires me to wear a beard.

Mr. Clement: --Well, Justice Ginsburg, I think... and we cite a few cases in footnote 2 of our reply brief that suggest that in dealing with legitimate concerns about using prison... religious symbols or other religious items as a gang signifier or a gang identifier, that the... that there have been cases where the courts, even applying the heightened standard or RLUIPA or RFRA, have deferred to the government officials.

I also think, though, it's worth noting how the Federal Government and the Bureau of Prisons has dealt with the concern that religious medallions, as opposed to beards, would be used for gang identification or gang signification.

Ohio, I take it, takes the position that if you have a medallion that could be used for those purposes, you can't have it within prison walls at all.

The Bureau of Prisons, by contrast, takes the position that you can have the medallion, but you have to wear it inside your shirt.

So it can't be used for prison signification purposes or gang identification purposes.

And I think that shows the kind of reasonable accommodation that RLUIPA or RFRA, as it applies to the Federal Bureau of Prisons--

Justice Ginsburg: What... what about a religion that it's a genuine tenet of the religion that the races are to be separated and the person says, the accommodation I want is never to be celled with someone who is not of my race?

Mr. Clement: --I think in a case like that... I mean, obviously, this Court's recent decision in Johnson would suggest that... that the prison officials are in a difficult position there and I think they could not accede to that request.

And I think complying with the Equal Protection Clause in that context would itself be a compelling interest under the statute.

And I think this Court in Widmar against Vincent, for example, suggested that avoiding Establishment Clause problems is a sufficient compelling interest.

I would think equally avoiding the Equal Protection Clause violation in that context would also be a compelling interest, and I don't think there would be a least restrictive alternative.

And so I think that the statute... there would be no statutory violation in refusing that particular accommodation.

I think there... these show that there are ways to administer this statute in a way that's respectful of the decisions of local prison officials but also does make sure that they have a degree of sensitivity to these claims for religious exercise.

Justice O'Connor: Does it... does the statute require the prison officials to evaluate the bona fides of the particular religion that's espoused?

Isn't one of the groups here a Satanist group?

So the religion... the bona fides of the group have to be reviewed by the prison authorities.

Mr. Clement: Well, Justice O'Connor, no more so than under the Free... the Free Exercise Clause itself.

I mean... and as this case, of course, comes to this Court, the substantiality of the religious beliefs and that they are actually held by these individuals has been stipulated to.

Justice O'Connor: We don't have to decide it here, but it's looming.

And when it goes back, if it does, that will have to be resolved in this and in every case.

Mr. Clement: That's right, Justice O'Connor, but that's true under the Free Exercise Clause as well.

So even the Sixth Circuit, that obviously had some problems with the statute, understood that on that score there's no more entanglement with religion under RLUIPA than there is under the Free Exercise Clause itself.

Chief Justice Rehnquist: Haven't we said in at least one of our cases that the government can't favor religion over irreligion?

Mr. Clement: That's right, Mr. Chief Justice, but this Court has been clear in the context of legislative accommodations of religion in particular to make clear that that preference of religion over irreligion doesn't mean that the government cannot provide legislative accommodations of religion without providing benefits for secular organizations as well.

That was the clear holding of this Court in Amos.

And I think that although this Court has expressed concerns about religious accommodations when there's no guarantee that the religious accommodation will be provided to other sects... take, for example, the Kiryas Joel case.

This Court has been quite clear that there is not a constitutional problem in favoring religion over irreligion in providing legislative accommodations for religion.

And as I said, in... in Zorach against Clauson, this Court noted that that's not just the absence of a constitutional problem, but there's really a constitutional virtue in the legislature acting to accommodate religion.

The Court made basically the same point in Smith in saying that even though the Free Exercise Clause did not require the special accommodation or exemption for peyote, the legislatures could do so and in doing so, they would be furthering constitutional values.

If I could say a few words about the Spending Clause claim that is brought by Ohio in this case.

They suggest that there's a difficulty with this legislation under the Spending Clause.

Now, the court below--

Chief Justice Rehnquist: Is that before us on the questions presented?

Mr. Clement: --Well, I think it is not in the questions presented themselves, I don't think, but I think it would be fairly open to this Court to reach it because it would be an alternative ground to support the judgment below.

That said, this Court doesn't have to reach it and its practice in recent cases has been when there's one constitutional claim that is... that the Court has ruled on below, it doesn't necessarily reach the other... the other constitutional claims.

The Court did that in cases like Oakland Cannabis and the Pierce County case.

And we would urge the same course here because, although the courts have divided on this Establishment Clause issue, the courts have not divided on the Spending Clause issue.

All the courts that have reached it have upheld it as valid Spending Clause legislation.

And I think that reflects the fact that there is a clear nexus here between the Federal funds and the Federal conditions that are being imposed.

If the Federal Government is going to provide money, over $1 million to Ohio, to have prisoner meals, then certainly the Federal Government can insist that kosher meals are among the available options.

And so too if the... if the Federal Government is going to provide monies for Ohio to build prisons, they can ensure that those prisons are safe and are operated consistent with Federal policy such that there's not discrimination on the basis of race or religion.

The last issue in the case, of course, is the Commerce Clause issue, and on that issue, no court below reached the issue.

And we think this Court's recent admonition in the Sabri case that facial challenges are best when infrequent, applies with particular force here because--

Justice Scalia: I don't... I don't understand, Mr. Clement, how your second point strengthens your first point.

That is to say, if we disagree with your first point, namely that the institutionalized persons provisions are consistent with the Establishment Clause, we think that they contradict the Establishment Clause, they couldn't possibly be saved by your second point.

Can you require as a... as a condition of... under the Spending Clause that a State violate the Establishment Clause?

Mr. Clement: --No, of course not, Justice Scalia, and I must have misspoke.

My point is they raise three arguments that are all alternative arguments to support the judgment below.

My burden is to defeat all three of them to show... if the Court reaches them.

So I have to show that there's no Establishment Clause violation, which we... we've certainly made that argument in the brief and here today, and that there's no Spending Clause violation, and that there's no Commerce Clause violation.

The... in this case the Commerce Clause claim has a completely abstract quality, and indeed, the only temptation to reach the issue at all would be that the... since RLUIPA has a jurisdictional element, the resolution of the Commerce Clause is so clear that it might be tempting to reach it.

But I think the better course would be for this Court to allow that issue to be sorted out in the... in the lower courts.

If there are no further questions, I would reserve time for rebuttal.

Argument of David A. Goldberger

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Goldberger, we'll hear from you.

Mr. Goldberger: Mr. Chief Justice Rehnquist, and may it please the Court:

This case comes before the Court on a motion to dismiss, and the facts, the underlying facts, involving the motion to dismiss are in dispute, and it's a serious dispute.

And those should be reserved for... for the court below, in particular the claims that our clients' religions are affiliated with gang activities, but there are serious disputes about that.

There is a Wicca chaplain that's been hired by the Department of Corrections in Wisconsin.

Two of my former students, who are upstanding members of the bar in every respect, are Asatrus, so that these are matters that should be preserved for the court below.

This Court has made... asked many questions about the accommodation of religion, and the suggestion is, well, isn't there favoritism?

Doesn't it encourage favoritism one way or the other?

But the answer to each of those questions is the same with respect to the current accommodations already provided by the Ohio Department of Corrections with respect to mainstream religions, and in fact, we believe on remand, we will be able to show that there is a preference for accommodating mainstream religions as opposed to non-mainstream religions.

Similarly, there has... there are... there have been questions by this Court that... that the standard imposed on the State of Ohio by RLUIPA is this particularly difficult or tortuous standard.

In fact, under State law in Humphrey v. Lane, which is cited in our brief, the State of Ohio Supreme Court has already imposed a similar standard with regard to the religious accommodation claims of prison guards.

Justice Scalia: Is Satanism a non-mainstream religion?

Mr. Goldberger: With all due respect, Your Honor, I understand that there is some uncomfortable feeling about the nature of my clients' religion.

As the Court will note in a... a footnote in our brief, it has been reported in the press that there is an adherent in the Royal Navy of Satanism, and the Royal Navy has agreed that if he's killed in the line of duty that there will be religious rights at the end consistent with his religion and, in fact, it amounts to a recognition of his religion.

Justice Scalia: What does this have to do with it?

The Royal Navy you say?

Mr. Goldberger: Well, I--

[Laughter]

Justice Scalia: Our Royal Navy?

[Laughter]

Mr. Goldberger: The answer is yes then.

It is a non-mainstream religion.

And I think that it's important for us to assure that religious groups of all stripes are... are accommodated in the... in the context--

Justice Ginsburg: To what extent?

I asked the... the racist... the religion that says God wanted the races to be separated and the accommodation is do not cell me with someone of another race.

Mr. Goldberger: --I believe that there is... it... the statute is pretty clear that if there is a... if it's compelling or requiring the State of Ohio to engage in an unconstitutional activity... and that would be a segregation of the races... that there's a compelling justification... or a compelling governmental interest in not complying with the statute or saying that the statute does not apply under these circumstances.

Justice Ginsburg: How about racist literature but it's under the aegis of a religious organization?

And that... suppose the prison does not permit, say, a member of the Aryan Nation to get that racist literature... to get racist literature but--

Mr. Goldberger: To the extent that there is bona fide religious literature that is racist, there are... we believe that the Constitution permits Congress or any legislative body to accommodate religion in isolation from other religious right--

Chief Justice Rehnquist: Well, when you--

Mr. Goldberger: --fundamental rights.

Chief Justice Rehnquist: --When you use the term bona fide, you're introducing a new kind of factor.

Do courts evaluate the bona fides of someone claiming a religion?

Mr. Goldberger: I believe they... as a matter of course, prison officials have to determine whether there's a good faith request for religious accommodation or whether the person is trying to seek something under... as a ruse.

Justice Kennedy: I take it we've done that in the conscientious objector cases, United States v. Seeger and Gillette.

Mr. Goldberger: That's correct.

But to let me finish my... my answer to Justice Ginsburg, if... if this Court is of the view... or members of this Court are of the view that it would be content discrimination, for example, although we believe that you can accommodate one fundamental right separately from the other fundamental rights, then of course, if there were a First Amendment violation, that too would be a compelling governmental interest in justifying refusal to apply RLUIPA.

So that there is no serious problem here.

And in fact, there is no reported case that any racist literature has ever been permitted in... into the prisons that we've been able to find.

Justice Ginsburg: --Well, the content discrimination, I take it, would be raised by someone who wants to get this for political or psychological reasons--

Mr. Goldberger: That's--

Justice Ginsburg: --you would say, I'm not challenging the right of the... as a member of this religious sect.

I just say, me too.

Mr. Goldberger: --Well, as I say, to the extent that that's right, if there were content discrimination along those lines and... and the Court said that there could not be... it was the Court's view that it could not be accommodated for religion only, then of course the... then there would be a compelling governmental interest in avoiding content discrimination.

In terms of whether or not there's a compelling justification of dealing with inflammatory literature, I don't think that's in dispute in this case.

Justice Kennedy: Well, I... I take it underlying Justice Ginsburg's question is... is the concern that this accommodation is unequal because there are other First Amendment rights that are not given the... that are not given the same precedence.

Mr. Goldberger: Well, first of all--

Justice Kennedy: That... that was at least an underlying concern of her question, and I think it's a legitimate concern.

Mr. Goldberger: --Well, as... as I read Amos, Amos says that the accommodation of religion need not come--

Justice Kennedy: Well, but in Amos, the Court was just... the... the government was just saying that one of its own statutes could be accommodated.

This is something different.

Mr. Goldberger: --Well, it's not... I'm not sure that it's different for constitutional purposes, that if there is a differential accommodation which the Court concludes violates the First Amendment rights of someone else because there's content discrimination, I'm not... there is no reason to treat the source of the accommodation as dispositive.

It's whether... it is the presence of the accommodation and whether it's broad enough or narrow enough.

On the other hand, the... we... we do want to make clear that there are numerous accommodations that involve First Amendment rights that do not overlap with... with religious exercise or accommodation of religious exercise.

To the extent that there is political gatherings, they're not entitled under the First Amendment to the... they're not accommodated in the same way that religious congregations in prison are accommodated.

And this Court so far has found there to be no constitutional violation for that distinction.

And to the extent that there's a compelling governmental interest, there is little doubt that the... that the prison officials can simply say no.

This... we will not accommodate it.

We're not required to accommodate it under the statute.

The... it is important to note, that the... these same accommodations are routinely granted to mainstream religions and that they do not shift burdens to third parties.

There's been substantial argument that there is a substantial shifting of burdens to third parties.

In fact, where third party claims have been made by the State of Ohio was that basically that the cost of security is increased because now it takes more... or the cost of prison administration is increased because it takes more time to take care of these claims and requests for accommodation than there would be if they didn't have to attend to these--

Justice Scalia: I'm... I'm sorry.

You've lost me.

I don't know what you mean about shifting burdens to third parties.

What--

Mr. Goldberger: --Well, the argument is that when, for example, a religious accommodation forces... and... and... the third parties to chip in, as they had to do in Caldor, for example, private third parties, that that renders the accommodation unconstitutional.

And the State has been arguing that the lifting of burdens on the religious exercise of our clients makes it harder for their prison guards--

Argument of Douglas R. Cole

Chief Justice Rehnquist: Thank you, Mr. Goldberger.

Mr. Cole, we'll hear from you.

Mr. Cole: Mr. Chief Justice, and may it please the Court:

In prison's unique environment, RLUIPA violates the Constitution.

It directly and impermissibly advances religion and it would have to be... have to be... perceived by objective observers as endorsement.

Justice Souter: Let me ask you this... this question because it... it... I think it goes to the... the heart of what I think is the problem in this case.

If we are going to recognize a sphere of accommodation, which we have done previously, I think we have to recognize that the... that the object of accommodating and the effect of accommodating is, in one sense, to benefit... I mean, in an obvious sense, is to benefit religion.

By recognizing a sphere of accommodation, in effect, I think the Court has said there is a sphere in which religion can be benefitted that does not rise necessarily to the level of government proselytization or... or government endorsement.

And it seems to me that the argument that you're making is that if the government endorses at all, it's immediately in... in the... the realm of establishment.

Am I... am I missing something in your argument?

Mr. Cole: Well, I think you are, Your Honor, and if our brief came across that way, I... I think it overstates the line that we're asking this Court to draw.

The Court has recognized, in talking about accommodations, that of course accommodations by their nature benefit religion.

That's part of an accommodation and could be said to have the effect.

But the Court has said then we must draw lines.

That is, the Court has recognized that you can't just say, oh, it's an accommodation which means that's fine, it's always going to be fine if it's an accommodation.

In fact, Justice O'Connor said we need to draw lines because otherwise everything will just become, oh, that's an accommodation.

Justice Souter: All right.

And... and why is the line violated here?

Mr. Cole: The line is violated here, Your Honor, because of the unique incentives and burdens that arise in the prison context.

Justice O'Connor: Well, what the statute appears to be doing is to try to go back to the pre-Employment Division v. Smith case standard under the Free Exercise Clause, which did allow for accommodation of religion.

And that appears to be what this statute is designed to do.

Mr. Cole: But in... in prison's unique environment, Your Honor, where there are so many deprivations of liberty and then to say the one... one way you can get out from under the thumb of all these prison regulations is to claim religion, and that's going to give you a powerful weapon not again to--

Justice O'Connor: But... but before Employment Division v. Smith, wouldn't we have had the same question arise in the prison context, and we would have dealt with it under the then-standards.

Mr. Cole: --But... but the Court has... has always articulated that the rules... well, in Turner and O'Lone, the Court articulated that the rules are different in prison, citing to the intractable problems of prison administration and the... and the problems of subjecting--

Justice O'Connor: But had the Court ever said that the Free Exercise Clause couldn't be applied in the prison context?

Mr. Cole: --No, Your Honor.

Going... going back to the Beto case, the Court said free exercise applies in prison, but in O'Lone, the Court said it applies in prison but the standard what we're going to use is one that's very similar to... to rational basis.

Justice Souter: Okay.

Then I think you're saying that in order to exceed what free exercise requires in a prison necessarily forces you into establishment.

And I think you're saying the reason it does so is that there are so many incentives on the part of prisoners to claim religion, that that's the only way you can sort of keep the genie in the bottle.

Isn't that the... the essence of your argument?

Mr. Cole: We're not asking for that bright line rule, Your Honor.

It could well be the case that providing kosher meals, for instance, whether that's required by the Free Exercise Clause or not, it might go marginally beyond what free exercise requires.

That's an accommodation that would be perfectly legitimate.

But to have a rule that says anytime you bring any request of any kind for an accommodation from any rule, it's going to be treated differently and better because it's religion--

Justice Souter: Well, it... but... but that is not what the rule says.

Number one, as... as your brother on the other side pointed out, there's got to be some determination made as a threshold matter as to whether this is even a religious claim or... or whether it's just gaming the system.

So there's nothing automatic.

Number two, if there are, as... as there frequently will be, in the prison context important governmental interests which can only be served by denying the... the request, the request can be denied.

And it seems to me that if these are not sufficient recognitions of the... of the prison context, then I don't know what kind of a rule we can have that would satisfy you except to say if it isn't absolutely required by free exercise, it is establishment.

Mr. Cole: --Well, Your Honor, I don't think we need to go that far.

I... I think we could look at given types of accommodations and say if a legislative determination is made that this type of accommodation with respect to this type of request is appropriate, based on a balancing of all the factors to consider in that particular case--

Justice Souter: You... you--

Mr. Cole: --that might not slide--

Justice Souter: --You mean specific accommodations like you can have kosher foods, you can wear a religious medal, you can have a tatoo?

I mean, you're... you're asking the legislature to be that specific.

Mr. Cole: --Well, a narrow, targeted... I guess the point is, Your Honor, a narrow, targeted accommodation would be different in our view than this broad, wonder bus approach to accommodation.

Justice Souter: It... it would also be rather a discriminatory one, wouldn't it?

I mean, one... one point that we have got to be concerned about, whether we're dealing with accommodation or whether we're dealing with... with flat-out establishment, is distinction among religions.

And I think you're saying if they do distinguish among religions, we don't have this problem, but I think that lands you from the frying pan into the fire.

Mr. Cole: No, Your Honor, I... I don't believe so because I think if, for instance, the legislature said, you... you shall, absent some compelling need, provide prisoners with a diet that meets their religious requirements, that would not discriminate among religions.

It would be narrowly tailored to some perceived problem that might exist.

Justice Souter: A guy comes along in a different religion and says, we're omnivorous, but we got to... we got to wear medals.

No statute that says medals are okay.

It... it... you know, I realize the level of generality in your example is higher.

The... the discrimination is not quite so blatant, but it's a pretty tough job to come up with... would be a tough job to come up with statutes without picking and choosing among religious demands.

Mr. Cole: And, Your Honor, we believe that in prison's unique environment, to the extent you go beyond the Free Exercise Clause, it raises special problems and special concerns that need to be dealt with--

Justice Souter: Why can't they--

Mr. Cole: --on a case by case basis.

Justice Souter: --But why can't they be dealt with under the statute as it is written, saying that if you... if it is a bona fide request, and you, the prison, determine that in fact you... you have a compelling State interest that cannot be served in any other way, you can say no?

Why is that insufficient and... and why does that... why is that, therefore, the reason that... that jumps us into an Establishment Clause violation every time?

Mr. Cole: It's insufficient, Your Honor, because it doesn't change the underlying fact that the request itself, whatever the ultimate outcome on the request is, the request itself gets treated differently and better merely because it's religion.

This is a--

Justice Souter: Well, are you saying that... that a statute is unconstitutional to recognize a prisoner's right to free exercise unless it also has a... a kind of a litany of sections recognizing speech rights, recognizing privacy rights, et cetera?

Mr. Cole: --No, Your Honor.

I'm... I'm not suggesting that.

Justice Souter: Then it's got to single out religion.

Mr. Cole: And... and as the Court noted in Amos, these type of statutes are necessarily going to single out religion, but that doesn't shield them from Establishment Clause scrutiny just because they take the form of being directed at religion and providing a benefit that's... that's labeled as an accommodation.

I mean, for instance, Congress could say, look, we think it's difficult for State prisoners to practice their religious beliefs when they can't go to church.

So absent some compelling State interest and least restrictive alternatives, the prisons need to arrange to release prisoners once a week to go to the church or synagogue of their choice.

Well, that would provide an awfully powerful incentive inside prison walls for prisoners to... to claim religion.

Justice Souter: Sure it would.

Justice Breyer: So maybe that's--

Justice Souter: And if you did it under the statute, you would clearly have a reason for saying no.

Justice Scalia: Mr. Cole, are you sure that this statute doesn't go beyond pre-Smith... our pre-Smith law?

I'm not aware that our pre-Smith law would have defined religious exercise as broadly as this statute defines it.

I guess this is something Mr. Clement ought to speak to as well.

It says, the term religious exercise includes any exercise of religion whether or not compelled by or central to a system of religious belief.

Mr. Cole: Thank you, Your Honor.

That is--

Justice Scalia: Did our prior Smith cases go that far?

I'm not aware that--

Mr. Cole: --No, they did not, Your Honor, and I think that's an important as well, that once someone has an... a bona fide religion and... and prison officials can challenge whether this is in fact a religious set of beliefs.

But if they have a religious set of beliefs and if they are sincere, then you can't challenge this particular request as not being mandated by the religion.

Justice Scalia: --They don't even have to say my... my religion requires me not to eat this food.

They just say, you know, I'm--

Mr. Cole: For religious reasons, I would prefer to do this.

Justice Scalia: --Yes.

Justice Breyer: --What is your argument in response to Justice Souter?

You said it is not the following.

It is not that the State has to list, along with these religious matters, the Second Amendment, the First Amendment, et cetera.

It's not that.

You then seem to say that the argument is that a person who files a piece of paper and claims to be religious, that they have to consider it, and it's impelled only by religion.

I suppose the same thing is true of a church that applies for a tax exemption.

So I don't think that you could say that automatically that fact that they're going to give the church a tax exemption or that they're going to give the religious person some special consideration, that that in and of itself violates the Establishment Clause.

Very well.

What does?

Mr. Cole: Well, Your Honor, I wish I could draw a brighter line rule than--

Justice Breyer: No.

But I just need to know where you're going--

Mr. Cole: --Your Honor--

Justice Breyer: --generally.

I don't need a bright line rule.

I'm just trying to find out what it is about this that violates the clause if it isn't the first thing or the second thing that I mentioned.

Mr. Cole: --It's the magnitude by which Congress has enhanced the religious right.

That is, we compare what the Constitution requires State prison officials to do and we say, how far has Congress moved the ball.

Justice Breyer: Fine.

Now, in respect to that, we have two points.

One was Justice O'Connor's I think, which is that Congress is not enlarging it, but for my second qualification, beyond what it would have been if Smith had never been decided.

And the second is Justice Scalia's point, which is but there is one respect in which Congress did enlarge it, namely, that the right doesn't have... the belief doesn't have to be central.

It could be... well, he just read that.

So is your whole argument then pinned on that latter point?

And if it is not, again, what is it?

Mr. Cole: Well, our argument is pinned on this Court's decisions in Turner and O'Lone, which we see as establishing the baseline for what type... for what the Constitution requires in terms of free exercise in prison, and then we'll use that baseline and compare the standard imposed there to the standard Congress is seeking to impose through RLUIPA and compare the magnitude of the two, understanding, as this Court has said in Lemon, that lines of demarcation are difficult to perceive.

It's difficult to say exactly where that line should be.

Justice Breyer: You're saying if Turner had come up prior to Smith, the Court would have said that Turner trumps pre-Smith law, and you don't have to follow pre-Smith law in the prison.

Mr. Cole: I... I believe so, Your Honor, given prison's unique environment.

Justice Breyer: I understand--

Mr. Cole: I believe Turner and O'Lone are prison cases that talk about what the Constitution means in prison, understanding that in prison there need to be changes to what we would otherwise see as the inmates' constitutional rights if they were not in prison.

Justice Breyer: --Now, I... I understand the argument now, which has been helpful.

Very well.

From the prison's point of view, why is it so burdensome since you would have thought security is a compelling interest, prison administration is a compelling interest, so that really all we have to do is think about this and look to see whether there isn't some reasonable way of accommodating the request?

Mr. Cole: Well, Your Honor, I think that the burdens in the prison environment are twofold.

First, RLUIPA forces prison officials to change the balance they would otherwise strike between safety and accommodation, and by changing that balance, changing the margin of safety, if you will, they're now imposing risks on the other inmates that are in prison.

And these aren't merely--

Justice Scalia: I think... I think you may exaggerate what it takes to establish a compelling State interest.

I mean, we... this... this Court held in the... in the pre-Smith days that it was a compelling State interest to... to prevent members of the Air Force from wearing yarmulkes.

I mean, if that's a compelling State interest, I think it's pretty easy to get most anything declared a... a compelling State interest under this statute, don't you think?

Mr. Cole: --Yes, Your Honor.

And compelling State interest doesn't present a problem to the State of Ohio or to the other States that are operating under this statute.

What it... what presents the problem is the least restrictive alternative part of that which subjects State prison officials in their day-to-day judgments regarding prison operations to a strict scrutiny analysis on the back end.

Justice Scalia: And that goes beyond pre-Smith too, doesn't it?

Least restrictive alternative.

Mr. Cole: The... the least restrictive alternative, which is what puts the teeth in RLUIPA and what's... what creates the problem--

Justice Ginsburg: We now have some experience in the Federal system where the same standards apply under RFRA.

And you are positing terrible disturbance of prison administration in the... what is it... 6 years that... that RFRA has been in force for Federal prisons.

Have there been... has there been this terrible disruption?

Have there been... have the accommodations required so much of the prison administrators?

Mr. Cole: --Well, the United States claims no, Your Honor, of course.

But when we look back at the experience of the States with RFRA, before it was declared unconstitutional, we presented substantial evidence in the... in the joint appendix with regard to the way in which there was an explosion of demands for accommodations by prisoners from previously unheard of religions.

There was an expansion... an explosion of claims of conversion within--

Justice Ginsburg: Yes, but now that some of that has gotten sorted out through the experience of the Bureau of Prisons on the Federal side, one would expect there would be less of those far-out claims.

The... you would expect when a statute is new, that there might be some claims that we would recognize as frivolous after there's been experience under it.

Mr. Cole: --That's correct, Your Honor, but the difficulty that doesn't seem to go away with the least restrictive alternative test is... is the possibility, as this Court noted in Turner, that every judgment every day is subject to some court somewhere finding that there was a less restrictive way of achieving the goal.

And... and we see that--

Justice Breyer: This is true.

Now there you're in the dilemma.

I mean, you're putting yourself there in the same position that virtually every official is in in the United States but for judges who have... who have to worry about the court of appeals.

But anyway, the... the--

[Laughter]

You see... now, the answer to that argument in your case, you're in a vice.

They put you in a... in a kind of pincers because where you have a good argument, they say, well, that doesn't violate the statute, and where your claim is weak, they say, well, it shouldn't be a... it should violate the statute.

And the difficulty with being in pincers like that is you can't win.

And the virtue of it is you shouldn't win.

All right.

So... so how do you get out of this... of the... of that kind of an argument?

Mr. Cole: --Well, that's not particularly encouraging, Your Honor, but--

[Laughter]

Justice Breyer: No, but... your point.

Mr. Cole: Yes, Your Honor.

And... and I guess all I can do is go back and compare the accommodation if that's what this is that's at issue here with that that was at issue in Amos to say these employers don't need to comply with this one Federal statute and this one set of obligations.

And I asked, well, okay, so an employer.

Is that going to make IBM switch from being a computer manufacturer to being a religious services provider because, boy, if we do that, we can get out from underneath title VII's nondiscrimination mandate?

I don't think so.

But if I look in prison and I say, what is going to be the effect on the ground with respect to people claiming religion or converting to religion if I tell them there's going to be a different regulatory regime that applies to you--

Justice Souter: Then why hasn't that been the effect on the Federal ground.

Mr. Cole: --Your Honor, I... I don't know that it hasn't.

I mean, I'm... I'm surprised in a sense to hear that claim because in brief period in which RFRA did apply to State prisons, there was an explosion of these demands.

And... and I would direct the Court to, I believe it's, 204, 210, 211, and 212 in the joint appendix to see some of the ways in which there's been this impact.

I'd also--

Justice Souter: I'll... I'll grant you that, but it seems to... I mean, Justice Ginsburg responded to that by saying that these things get sorted out.

At the beginning you get all sorts of loony claims.

As time goes by, you get fewer of them.

And... and if... if they weren't getting few of them, I would have expected the United States to make a different representation.

Mr. Cole: --Your Honor, I don't know that the fact that... that strict scrutiny might become... what that means, what that's going to require.

And arguably, this is a slightly different strict scrutiny than other strict scrutinies because of some of the legislative history, to the extent one... one wants to look at that.

And... and that's, I guess, the problem.

As we flesh that out, during that entire time, we're saying it's all right to burden other inmates in prisons.

It's all right to burden prison officials.

It's all right for Congress not to burden Federal prison officials, but for Congress to burden State prison officials with this new set of obligations.

Justice Souter: Well, I don't know what that's got to... you know, you may or may not have an argument there, but I don't know what it's got to do with the meaning of the Establishment Clause.

Mr. Cole: Well, Your Honor, the--

Justice Scalia: And they're not burdening you anyway... anyway.

Just don't take the money.

Mr. Cole: --Well--

Justice Scalia: It comes with the money.

Mr. Cole: --I'm--

Justice Scalia: You don't want the burden?

Don't take the money.

I mean, they... they do that all the time.

Mr. Cole: --I'm not sure I agree with that, Your Honor, for... for a couple of reasons.

First, this also purports to be Commerce Clause legislation, in which case it would be a mandate upon the States whether--

Justice Scalia: What we have before us in this case is... is a case covered by the... the Spending Clause.

So we don't have to grapple with the Commerce Clause for now.

Mr. Cole: --But... but secondly, Your Honor, with respect to the Spending Clause issue, this Court has said in Dole that there needs to be relatedness between the spending, that if there's going to be strings attached, they actually have to be attached to the Federal money in some meaningful way.

And here, Congress is relying on spending, most of which has absolutely nothing to do--

Chief Justice Rehnquist: But the Sixth Circuit didn't pass on the Spending... Spending Clause issue.

Mr. Cole: --No, they did not, Your Honor, but we--

Chief Justice Rehnquist: And it isn't raised by your opponent's petition.

Mr. Cole: --That's... that's true, Your Honor, but it is available to the Court as an alternate ground of affirmance of... of the decision below.

Chief Justice Rehnquist: Yes, if we're looking for that.

Mr. Cole: Well, Your Honor--

Justice Ginsburg: There was one question brought up about Ohio's own practice.

But you... you say we have no obligation to relieve burdens.

If we did, we would violate the Establishment Clause.

The point was made that Ohio pays for chaplains, but it doesn't pay for, say, psychologists to come in for agnostics.

So aren't you right there violating the Establishment Clause on your own theory?

Mr. Cole: --I don't believe so, Your Honor, because our theory isn't that anytime you go beyond what free exercise requires, you're immediately into an Establishment Clause violation.

We recognize that there is a play in the joints.

And providing chaplains, given the... the rich history and tradition of doing so in prisons, seems to fall very comfortably within that play in the joints.

The question is when have we gone too far.

When has our accommodation slid over, as the dissent put it in Texas Monthly, into a... or an impermissible incentive to practice religion?

Justice Stevens: May I ask this question, Mr. Cole?

I am troubled also, as you point out, about the least restrictive language in the statute.

But as I try and apply it to this particular case, weren't most of the allegations that the petitioners made is that they were treated differently from other mainstream religions and that the accommodation would have been, well, treat them the same, which would have been the least restrictive alternative?

It wouldn't have created all the problems you describe.

And they say they don't... can't have group meetings.

They... if they were treated exactly the same, would that... that would satisfy the least restrictive alternative part of the statute, wouldn't it?

And why would that be such a burden?

Mr. Cole: Your Honor, first, I'm not sure that their claim is that, oh, we're being treated differently and worse.

Their claim was we want to get together for congregate religious services or, in Mr. Hampton's case... he was a Wicca... he wanted certain objects, including a quartz crystal that he would be able to keep in his cell.

Justice Stevens: Don't mainstream religion adherents have certain objects they'd like to keep in their cell?

Mr. Cole: They... they may well, Your Honor, and... and the point is in each of those cases, prison officials look at the object and say what's the potential for harm here.

Should we let them have it in their cell?

There's a... there's a practice in Ohio prisons of--

Justice Stevens: The mainstream person, if there's a potential for harm, they wouldn't let them keep it in the... in the cell, would they?

Mr. Cole: --That's right, Your Honor.

Justice Stevens: And in other words, is it really... although the language in the statute seems to go farther, is there anything really at stake here beyond saying treat us the same as you treat mainstream... members of mainstream religions?

Mr. Cole: Absolutely, Your Honor.

Absolutely.

Justice Stevens: And what is the best example of that?

Mr. Cole: There's a... a request for a prisoner who wants the grooming regulations changed with respect to him.

He's a prisoner who's got a history of contraband violations.

He's involved in a... in a prison betting pool and carries... tries to carry betting slips and secret them on his person.

And so if he could violate the grooming regulations, the concern is he might use that to hide contraband.

There are prisoners that want to wear their hair in a certain way to signify gang affiliation, and instead, they claim, well, I need this for religious purposes, but what's really going on is they want to signify gang affiliation.

Justice Kennedy: If you want us to say that--

Justice Stevens: It would seem to me that would be a compelling interest to say you can't do that.

Mr. Cole: Your Honor, again, I'm... I'm sure there's a compelling interest.

The question is the least restrictive alternative.

Are we going to be able to meet every Federal judges' view of is this the least restrictive way we could go about achieving this compelling interest?

There's no doubt that prison security is going to be recognized as a compelling State interest, but the difficulty is the least restrictive alternative test.

Justice Kennedy: --Well, I... I suppose you're saying you want us to make the holding that... one of the holdings you'd be satisfied with is that while some accommodation is... is appropriate, this is extreme accommodation.

What's your best case for that?

I... I just can't remember a case in which we've tried to ask whether every form a request for accommodation has to be acknowledged.

Is... is this the only case that you've come across?

Mr. Cole: Frankly, Your Honor, other than RFRA, it's the only time Congress has gone this far.

And so to say that there's a lack of case law on this is more to suggest that there's been settled understandings that we can't go this far rather than--

Justice Kennedy: Well, I guess what I'm asking is what's the closest analogy you can--

Mr. Cole: --In our brief we... we looked at Lee v. Weisman in what the Court called subtle and indirect coercion to religion when it was merely standing for a... a invocation during graduation once a year.

And we contrast that with what's going on here and the constant pressure day after day, if you want this set of benefits, get religion.

Justice Breyer: What about the American Indian who didn't... or was it... I think it was an American Indian.

But... who didn't want to be known... it was a woman and she didn't want to known as a number.

She wanted a name.

That was a religious basis.

And Social Security... I think the Court hold... didn't have to give her that.

Mr. Cole: That's correct, Your Honor.

Justice Breyer: So that to me stood for the proposition that administrative considerations play an important role in deciding whether you've hit upon the least restrictive alternative.

And as long as that was the law, then you're okay.

And that was a Supreme Court case I think.

I may be misremembering.

Mr. Cole: Again, Your Honor, it's not that we couldn't potentially win these cases under least restrictive alternative.

The question is by changing the standard to that, changing the standard to one in which these prison officials... I mean, Congress is, in a sense, asking Federal judges to sit as overseers of religious life in the prisons across the 50 States.

And given what this Court said in Turner, given what this Court said in O'Lone about the intractable problems that prison officials face, it just seems an inappropriate task and one that, if motivated with the desire of increasing religiosity in prison, seems to cross the Establishment--

Justice Kennedy: --You're asking us--

Justice Scalia: Why is it... why is it worse for... for judges to be overseers of religious life in prison than it is for wardens to be overseers of religious life in prison?

I mean, somebody has to say what the lines are, what will... what will be accommodated and what won't.

Mr. Cole: --Right, and it's--

Justice Scalia: And that someone is going to be a government official.

I have no reason to believe that wardens are... are better at it than judges except with respect to, you know, security and administrative convenience, which we will honor under this statute.

Mr. Cole: --Except, Your Honor, this Court noted in Turner, I believe it was, that the need for judicial deference is particularly strong when you're dealing with situations that create ripple effects in prison.

And it's difficult for Federal judges to know.

They don't have prison management experience.

They don't have 20 years on the ground like most prison wardens do to say this... this accommodation will work and this one won't.

Justice Scalia: And I think that means that they will give great deference to what the... what the wardens of the prisons say is a compelling interest of... of the penal system.

Mr. Cole: If they will, it's not in the face of the statute, Your Honor.

I mean, it's not in the face of the statute.

It says compelling State interest and least restrictive alternative.

I would just like to note--

Justice Ginsburg: Can you... can you give me an example?

Because most of the things I think of is either you can have kosher food or you cannot.

Either you can wear a yarmulke or you're not.

There's not other... another alternative.

Most of these things are yes and no.

What is the case where, well, you can't have this but we'll give you something lesser?

Mr. Cole: --Well, I believe Mr. Clement noted that... that there was a case that held that, okay, you can't wear the medallion on the outside of your shirt, you can wear it on the inside of your shirt.

So that would be a less restrictive alternative for not allowing you to use the medallion, I guess, as a gang identifier.

Now, it doesn't really deal with the problem that as soon as the guard is not looking, again it can be pulled outside the shirt and can be used as a gang identifier.

Justice Ginsburg: Well, maybe if the warden says that, the court would say, fine, you don't have to accommodate.

Mr. Cole: Maybe, Your Honor, but... but the question is, is it permissible for Congress to create incentives for prisoners to say, yes, I'm religious because I want these other benefits?

Can Congress really say, boy, we'd like you to be religious, and the way we're going to provide that incentive is by giving you a better shot at getting out from the rules in prison?

It's not a guaranteed shot from getting out, but it's a better shot at getting out from the rules that apply to everybody else in prison and to get that, you have to become religious.

Justice Souter: Better shot than... better shot than what?

Better shot than the... than the Free Exercise Clause alone would allow?

Mr. Cole: Better shot than--

Justice Souter: And aren't you arguing that in the prison context, once you get beyond the free exercise line, you are into establishment?

Mr. Cole: --Well, and Your Honor, I was not careful there.

I should say much better shot.

I mean, again, it's this point that--

Justice Souter: Okay.

But how do we administer?

How does anyone administer that... that kind of a test?

Mr. Cole: --I--

Justice Souter: It can... it can be better but not much better?

Mr. Cole: --I think by comparing to what's gone before.

In fact, the Court has adopted a version of that approach already.

In Caldor, the Court said if it's unqualified and imposes a burden on others, that's going to violate the Establishment Clause.

I see my time is up, Your Honor.

Chief Justice Rehnquist: It is.

Thank you, Mr. Cole.

Mr. Cole: Thank you.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, you have 4 minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

Just a few points in rebuttal.

First of all, I'd like to note the anomaly that much of the argument of General Cole would be an argument for why the State constitutional provision that gives higher protection for freedom of conscience in Ohio is itself unconstitutional.

Justice O'Connor: Why don't you address the ways in which this act goes beyond our former free exercise--

Mr. Clement: I'd be happy to do that, Justice O'Connor.

I think that there's been an exaggeration of how far it goes beyond.

Now, I want to be clear about one thing, which is this Court, even before Smith and O'Lone, said that there was going to be deference to prison officials and a Turner standard would apply.

So to the extent that there's a little less deference here than under the O'Lone standard, that is a modification.

The centrality requirement, though, is not something that can be charged to RLUIPA or to RFRA because even before the Smith case, this Court in Ling and Hernandez was moving away from centrality and--

Justice Scalia: Also not compelled... not compelled... by religion.

You just say, you know, I... I want to give up everything except candy for Lent, and the... the prison has to accommodate you.

Right?

Mr. Clement: --Well, Justice Scalia--

Justice Scalia: It's not compelled.

I... you know, I could do something else.

But I had thought that our prior religion cases did... did, indeed, require some religious compulsion than just I... you know, I'd like to do this as a religious matter.

Mr. Clement: --Justice Scalia, I don't think this Court has ever in its accommodations cases held that the government can only accommodate those things that are central.

I don't know for sure, but I rather doubt that employing co-religionists in a gymnasium is central to the practice of any faith.

Yet, in Amos, this Court upheld that as a valid accommodation.

And I do think the centrality requirement--

Chief Justice Rehnquist: --the LDS.

Mr. Clement: --What's that?

Chief Justice Rehnquist: I said you may underestimate the LDS.

[Laughter]

Mr. Clement: I may, Mr. Chief Justice.

But again... but... but to the extent I do, I think those are questions that are best to be kept out of the courts, which is why even before Smith this Court moved away from centrality.

It's why even Justice O'Connor, who otherwise was in disagreement in Smith, also agreed that we should get rid of the centrality requirement.

And if you look at some of the cases that are actually decided under RLUIPA, the cases involve things like Muslim prayer oil and they... the cases... the Seventh Circuit, for example, allows it.

Now, we don't want the courts getting into--

Justice Scalia: I guess you're right.

I think I was thinking of free exercise cases rather than establishment cases.

Mr. Clement: --Well, I... I think that's right, and I think there is not that centrality requirement for accommodations.

I do want to make the point, though, that... that Ohio already, under its State constitution, has this heightened review with a lot of these, you know, least restrictive alternative tests and the like.

Nobody thinks Ohio's constitution violates the Federal Constitution.

That's true even though Ohio applies it in the prison context, at least when it's a claim by a guard rather than an inmate.

That... those are the facts of Humphrey against Lane.

It's also true that many of Ohio's arguments would suggest their own accommodations of some religions give too much of an incentive for religious exercise and the like.

And I think that's a defect as well.

I don't think... and I agree with Justice Souter in this regard... that narrower accommodations actually raise more constitutional problems than broader accommodations.

I think that this Court, for example, in Caldor dealt with an accommodation that was at a fairly high level of generality, but yet this Court said and Justice O'Connor emphasized in her concurrence, well, that's a preference for Sabbatarian religions.

And I think you avoid that with this kind of across-the-board test.

Justice Kennedy, you made a point about whether this is extreme in the degree that it accommodates religion, but it's certainly no more extreme than the... than the laws and constitutions of 26 States, which across the board apply this heightened scrutiny to all manner of State actions.

So in that sense, the fact that it accommodates religion kind of wholesale with a broader standard, as opposed to retail, I don't think is a constitutional defect.

The last point I wanted to make is on the racist literature hypothetical, and I think it is in large measure just a hypothetical.

As footnote 2 in our brief points out, prisons have been generally successful in keeping racist literature out even when it's supported as a claim for religious-based racist literature.

The only cases that I've come across where that hasn't prevailed is when the... the prison's own policy had exceptions in it that made very little sense.

And in this case, for example, if you look at joint appendix page 118, there's an allegation that with... with one piece of literature that was described as racist, that some prisoners were allowed to have it while others were not allowed to have that same kind of literature.

Now, I don't know whether those claims are in fact true, but that's the kind of claim that should be able to go forward in a case like this.

With all respect, I think the Sixth Circuit here made a mistake, ignored this Court's precedents, and should be reversed.

Chief Justice Rehnquist: Thank you, Mr. Clement.

The case is submitted.