Religious Act Upheld; Radical Thomas Concurrence

The Supreme Court has unanimously rejected a facial Establishment Clause challenge to section 3 of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a)(1)-(2), which applies to individuals in institutions.

Justice Thomas joined the opinion of the Court, but wrote separately to express his view that the Establishment Clause does not apply to states and that RLUIPA likely exceeds Congress’s power under the Spending and Commerce Clauses, positions with quite radical implications.

RLUIPA prohibits governments from imposing a substantial burden on religion unless the burden furthers a compelling governmental interest by the least restrictive means. It applies largely in prisons, but also in other types of government run or funded institutions like nursing homes or other facilities “for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped.” Justice Ginsburg’s decision for the unanimous Court noted the enormous control over institutionalized persons, and found that RLUIPA is consistent with the Establishment Clause because it “alleviates exceptional government-created burdens on private religious exercise.” She also noted that, notwithstanding the strict scrutiny standard, Congress expected courts to accord due deference to the security and safety needs of jail administrators.

Justice Thomas agreed that RLUIPA was constitutional “under our modern Establishment Clause case law,” but reiterated his belief that the Establishment Clause is not incorporated into the Fourteenth Amendment and “’is best understood as a federalism provision’ that ‘protects state establishments from federal interference.’” That is, states can establish religion and Congress cannot preclude them from doing so.

Thomas also commented that RLIUPA “may well exceed Congress’ authority under either the Spending Clause or the Commerce Clause.” He cited his concurrence in last year’s decision in Sabri v. United States, 541 U.S. 600 (2004), in which insisted that Spending Clause legislation must be reviewed under a higher standard than mere rationality to ensure that there is an obvious, direct condition between spending conditions and the spending itself. Such an approach could doom not only RLIUPA but also other measures that Congress has adopted to prohibit recipients of federal spending from discriminating against the elderly, disabled and other groups, as wells as possibly rights under the Nursing Home Reform Act.

Thomas also quoted from his concurrence in United States v. Lopez, 514 U.S. 549, 587 (1995), where he indicated his view that the power to regulate commerce extends only to trade, not manufacturing or other commercial ventures. Again, that position has repercussions far beyond protections for religious practice. His approach would likely doom the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as wells as minimum wage and maximum hour laws and labor and environmental laws.

Indeed, Thomas’s restrictive views of Congress’s Commerce Clause and Spending Clause authority would leave Congress with virtually no ability to enact legislation to protect individuals. Because of restrictive interpretations of the Fourteenth Amendment, both in the 19th Century and under the Rehnquist Court, it is only because of expansive views of the Commerce Clause and Spending Clause that Congress has any ability to pass legislation protecting individual rights.