The First Amendment: How to Have Your Cake and Eat it Too

Cutter v. Wilkinson

“Section 3 of the Religious Land Use and Institutional­ized Persons Act of 2000 (RLUIPA), provides in part: ‘No gov­ernment shall impose a substantial burden on the reli­gious exercise of a person residing in or confined to an institution,’ unless the burden furthers ‘a compelling governmental interest,’ and does so by ‘the least restric­tive means.’” Some inmates who feel that a burden has been placed on them because of their “non-mainstream” religious views are suing the prison system. The prison system counters that this provision violates the First Amendment by forcing preferential treatment to be given to religious inmates in violation of the Supreme Court’s Lemon test (Lemon v. Kurtzman prohibited "excessive entanglement" with religion by the government, and required that the statute in question neither advance nor inhibit religion).

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It is easy to see how these two propositions can be found to be in disagreement, and the tests created by the Supreme Court have attempted to find the middle ground between them. In this case the question is whether the requirement in RLUIPA, and other acts like it, are necessarily invalid in the face of the First Amendment. Because the prison system did not raise any specifically unconstitutional situations, the Court decided that the act is not necessarily unconstitutional. Rather, the Court held that it can be enforced without harming the prison system (since it allows the government to protect its compelling interests), and without granting preferential treatment to specific religion. This is not to say that unconstitutional situations could arise from the enforcement of the law which the Court would strike down, but only to say that the law itself is valid.

Interestingly, Justice Thomas writes his own concurring opinion, explaining why the act is constitutional from a federalist viewpoint. Thomas argues that the act is constitutional because, even insofar as it may respect religion, it does not respect the establishment of religion. While I understand the significance of the difference between "the establishment" and "an establishment," I have always wanted to find some authoritative document to indicate that the word "establishment" in “an establishment of religion” is meant as a verb rather than a noun, but I have not. It is, however, generally accepted (at least from a federalist standpoint) that “establishment” is in fact meant as a verb.