Today, the Union of Orthodox Jewish Congregations of America (UOJCA) – the nation’s largest Orthodox Jewish umbrella organization – through its Institute for Public Affairs, joined with the National Association of Evangelicals in filing a “friend of the court” brief with the United States Supreme Court in defense of a federal religious liberty statute – the Religious Land Use & Institutionalized Persons Act [“RLUIPA”] — whose constitutionality is being challenged by the State of Ohio this term. The brief, filed in the case of Cutter v. Wilkinson, was principally authored by the eminent University of Texas law professor Douglas Laycock. The brief urges the court to reject new theories, which the State of Ohio has indicated it will advance in this case, purporting to present “originalist” interpretations of the Establishment Clause which, Ohio contends, would be cause for invalidating RLUIPA. The theories assert, first, that the framers of the Constitution intended for the Establishment Clause to bar special accommodations or exemptions for religion being enacted by legislation or regulation; and, second, that the Establishment Clause was intended to prohibit the federal government from interfering with the practices of states with regard to laws or regulations which impact upon religion. The UOJCA/NAE–Laycock brief squarely refutes these theories through a thorough review of constitutional history. (The full text of the brief will be available on-line tomorrow at https://advocacy.ou.org:443/.)

The case in which this matter comes before the high court is Cutter v. Wilkinson. The case involves lawsuits by three prison inmates against Ohio corrections officials who the inmates claim violated the religious liberty protections accorded them by RLUIPA; Ohio contends that the inmates are nothing more than a racist “gang” claiming religious status in order to shield their illicit activities. By way of background, RLUIPA was enacted, nearly unanimously, by Congress in 2000 in the wake of the Supreme Court’s declaring its predecessor – the Religious Freedom Restoration Act [“RFRA”] unconstitutional as it was outside of congress’ power to enact a statute so broad. RFRA sought to reinstate the highest level of constitutional protection for the exercise of religious liberty in the wake of a prior Supreme Court ruling which greatly reduced that level of protection; RLUIPA sought to do the same, but in the narrower areas of religious liberty as it relates to state regulation in the context of land use and institutionalized persons such as prisoners. Thus, RLUIPA protects those who wish to construct or expand a house of worship from discriminatory harassment by zoning boards and it urges prison officials and other overseers of institutions to give greater deference, as appropriate, to religious accommodation issues. The UOJCA worked intensively with a broad coalition to have RLUIPA passed by Congress and signed by President Clinton. Running counter to the decisions of other federal appellate courts who have upheld RLUIPA’s constitutionality, the Court of Appeals for the 6th Circuit ruled RLUIPA an unconstitutional establishment of religion thus bringing the issue to the Supreme Court this term.

In connection with the brief filing, Nathan J. Diament, director and counsel for the UOJCA’s Institute, stated: “Orthodox Jews and Americans of all faiths have much at stake in the Supreme Court’s review of this case – their religious liberty. As opposed to another religion-related case the Court is considering this term involving symbolic displays, this case will affect the real, day-to-day lives of religious Americans and their houses of worship for years to come. Especially, if the newly-contrived theories of “originalism” our brief refutes are given credence by the Court, the accommodations which enable religious Americans to practice their faith daily – whether regarding religious diet, clothing or holy day observance — will be imperiled. We trust the Court will not let this come to pass, will reject these arguments and uphold the RLUIPA statute.”