Cutter v. Wilkinson It is a rare event for the Supreme Court of the United States to render a unanimous opinion, but yesterday they did just that.
The Supreme Court on Tuesday unanimously upheld a federal law that requires state prisons to give inmates access to religious programs, ruling in favor of a Satanist, a racial separatist and other followers of non-traditional religions.
Inmates in Ohio felt that they were being discriminated against because their requests for religious articles were, um, out of the mainstream...
Among the rejected religious requests, he said: a crystal sought by a Wiccan... racist literature sought by a member of a white supremacist church,... and instructions for writing in runes, an ancient Norse language, sought by a follower of the pagan religion Asatru...
The state of Ohio claimed a number of things in their defense. First, it should be noted that they claimed the above items were witheld for safty reasons: the crystal because it could be used as a weapon, the racist literature because it could inspire, um racism, and the runes because it could be used to encode gang related communications.
But I have to wonder if a crucifix has been rejected because it, too, could be considered a weapon. Also why it is that racist literature would inspire any more racism than the racist himself? And an alphabet could be used to create encoded messages. You don't need runes.
Ohio's main argument though was, to me, rather odd. They claimed that the 2000 law passed by Congress which
...provides, in the relevant part, that “no government shall impose substantial burden on the religious exercise of a person residing in or confined to an institution” unless that burden furthers a “compelling governmental interest” and does so by “the least restrictive means.” In a nutshell, the act goes beyond what the Free Exercise Clause requires in accommodating the religious beliefs and practices of persons “confined” in “institutions” that receive federal funds.
that this law unconstitutionally "establishes" a religion; a violation of the First Amendment. Stunningly, the Sixth Circuit agreed. The Supreme Court, however, unanimously smacked down this absurd argument. Justice Ginsburgh, who wrote the opinion reversing the Sixth Circuit
reaffirmed that the Constitution leaves “some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause,” and determined that the act “fits within the corridor between the Religion Clauses.” This is because the act “alleviates exceptional government-created burdens on private religious exercise” in state-run institutions “in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise.”
One has to wonder if this does not predict how the Supreme Court would rule if ever the "Pledge of Allegiance" case makes it back to their bench. I mean this very same reasoning could be used to say that the word God in the pledge does not "establish" any particular religion and the legislative action that placed it there “fits within the corridor between the Religion Clauses.”
Last year around this time, on Flag Day to be specific, SCOTUS dismissed Elk Grove v. Newdow because they ruled that the father did not have standing to bring the case to court to begin with, and thereby sidestepped the issue....somewhat.
In separate, concurring opinions, Chief Justice William Rehnquist and justices Sandra Day O'Connor and Clarence Thomas argued the court should have addressed the constitutional issue.
The justices said the pledge does not violate the First Amendment, which prohibits the establishment of religion by the government.
"To give the parent of such a child a sort of 'heckler's veto' over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase 'under God,' is an unwarranted extension of the establishment clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance," Rehnquist wrote.
Not to mention that such a ruling would have to impact Wiccans in prision.
Given the decision in Cutter v. Wilkinson, it would seem that the rest of the court might very well agree. Justice Thomas in his separate concurring opinion to Cutter
restates his view that the Establishment Clause has been badly misunderstood over the last 50 years, and converted from a federalism provision — one that protected the states’ church-state arrangements from federal interference — to a general requirement that governments not endorse or even acknowledge religion. As he did in Elk Grove School District v. Newdow, last year’s Pledge of Allegiance case, Justice Thomas reminds us that the Establishment Clause prohibited Congress “from enacting legislation ‘respecting an establishment of religion’; it does not prohibit Congress from enacting legislation ‘respecting religion’ or ‘taking cognizance of religion.’” The act, he noted, “is a law respecting religion, but not one respecting an establishment of religion.”
Well said.
