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Analysis of Cutter v. Wilkinson: Supreme Court Rules in Favor of Pagans

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Analysis of Cutter v. Wilkinson: Supreme Court Rules in Favor of Pagans

Author: Dana D Eilers
Posted: June 26th. 2005
Times Viewed: 14,375

The United States Supreme Court Interprets Federal Act Favorably to Pagan Plaintiffs:

Cutter, et al. vs. Wilkinson, et al.
2005 U.S. Lexis 4346
U.S. Supreme Court No. 03-9877
Decided May 31, 2005

On May 31, 2005, the United States Supreme Court issued a decision in the case of Cutter, et al. v. Wilkinson, et al. which will be, for Pagans a significant moment in the history of American jurisprudence. In this case, Pagan Plaintiffs have successfully mounted a constitutional challenge in the United States Supreme Court. The decision itself, however, only rules on a narrow issue, which is whether the Religious Land Use and Institutionalized Persons Act of 2000 is constitutional when held up against the First Amendment of the federal constitution. Before we all start jumping up and down, we need to examine the history of the Religious Land Use and Institutionalized Persons Act.

As noted by Justice Ruth Bader Ginsburg, who wrote the majority opinion in Cutter, there has been a long-running attempt by Congress to afford religious exercise some sort of increased protection from government-imposed burdens, which protection had to be consistent with the precedents established by the U.S. Supreme Court. In the Supreme Court decision of Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) , the Supremes (that is, the United States Supreme Court) , held that the state of Oregon could enforce a blanket ban on peyote possession without making any allowance for sacramental use of the drug. This ruling permitted Oregon to deny unemployment benefits to persons dismissed from employment because of religious or ritual peyote use. After the Smith case, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in an attempt to provide some sort of protection for religious exercise (such as that in the Smith case) from government interference. Unfortunately, the Supremes struck down the RFRA in the case of City of Boerne v. Flores, 521 U.S. 507 (1997) and found that Congress had exceeded its scope of power in enacting the RFRA.

Congress went back to the legislative drawing board and in 2000, enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). It is Section 3 of this federal statute which came under fire in the Cutter case. Section 3 provides that “no [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ” unless the government can show that the burden imposed furthers “a compelling governmental” and accomplishes that task by “the least restrictive means.” 42 U.S.C. Section 2000cc-1 (a) (1) - (2). Notably, Section 2 of the RLUIPA deals with land use regulation, but this particular section was not at issue in the Cutter case. Cases brought under Section 2 of the RLUIPA might involve Pagan Temples, Wiccan churches, etc. operating out of private homes in areas zoned for residential use.

For Pagans, the big hoopla surrounding Cutter is that the case involves identifiable Pagan plaintiffs/petitioners to the United States Supreme Court. The people who wound up in the Supreme Court were current and former prisoners in the Ohio Department of Rehabilitation and Correction. Collectively, they are described by Justice Ginsburg in as “adherents of ‘nonmainstream’ religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian.” In looking at the history of Cutter before it got to the Supremes, we see that in the federal district court, there was a plaintiff J. Lee Hampton, who was Wiccan and a practicing witch (Case no. C2-97-382); there were Asatru plaintiffs from Case No. C2-98-275. Interestingly, plaintiff Jon B. Cutter was a Satanist, and from Case No. C2-95-517, the plaintiff was a member and ordained minister of the Church of Jesus Christ Christian (CJCC), which had ties to the Aryan Nation. See Gerhardt v. Lazaroff, 221 F. Supp.2d 827 (S.D. Ohio 2001). Certainly, the Satanist plaintiff and the CJCC plaintiff are not particularly sympathetic given the current mainstream notion that the United States is a “Christian nation.”

It is important to note that from the get go, there was a concession from the defendants that the plaintiffs practiced bona fide religions, and that plaintiffs’ beliefs were genuine. Gerhardt, supra. In the Supreme Court case, Judge Ginsburg stated that there was a stipulation regarding the plaintiffs/petitioners: they were members of bona fide religions and were sincere in their beliefs. Cutter, 2005 U.S. Lexis 4346, supra. So, there was no issue as to whether Wicca, the Asatru, Satanism, or the CJCC where religions meritorious of First Amendment protection. This had already been stipulated to by the defense. Arguably, a case might still arise in the Supreme Court which calls into question the validity, for First Amendment purposes, of these religions.

So, what brought these people to court in the first place? While incarcerated, the various plaintiffs/petitioners sought to practice their respective religions which were not “traditionally recognized by the Ohio Department of Rehabilitation and Corrections (‘ORDRC’) .” Gerhardt, 221 F. Supp. 2d 827, supra. While trying to practice their faiths in prison, they were allegedly subjected to illegal or unconstitutional treatment, including “denial of access to religious literature and/or items necessary to practice their religion . . . denial of the opportunity to conduct religious services . . . denial of the freedom to conform their dress or appearance to that required by their religion . . . denial of a prison chaplain specifically trained in and dedicated to their religion . . . and retaliation and discrimination by ODRC staff resulting from attempts to advance and practice their religion.” Gerhardt, 221 F. Supp. 2d 827, supra. Ultimately, the plaintiffs/petitioners amended their initial court pleadings to include assertions that the ODRC practices violated the RLUIPA. When this occurred, the defendants moved to dismiss the prisoners’ actions on the grounds that the RLUIPA was unconstitutional, asserting that Section 3 of RLUIPA violated the Establishment Clause of the First Amendment. Cutter, et al. v. Wilkinson, et al, 349 F.2d 257 (6th Cir. 2003) .

The United States District Court for the Southern District of Ohio, Eastern Division, agreed with the plaintiff/petitioners and denied the defendants’ motions to dismiss the prisoners’ actions. The case was taken on interlocutory appeal to the Sixth Circuit federal court of appeals and on November 7, 2003, the federal appellate court reversed the district court. In essence, the federal appellate court came down on the side of the defendants. Cutter, 348 F.2d 257, supra. The plaintiffs/petitioners then filed a Writ of Certiorari with the United States Supreme Court seeking review of the federal appellate court decision. The stage was now set for this landmark constitutional challenge to be mounted by Pagans in the United States Supreme Court.

Justice Ginsburg began by stating that government could accommodate religious practices without violating the Establishment Clause. She followed with this statement: “But Section 3 of RLUIPA . . . does not, on its face, exceed the limits of permissible government accommodation of religious practices.” Cutter, 2005 U.S. Lexis 4346, supra. RLUIPA applies to entities which accept federal financial assistance, and it was noted that every state, including Ohio, accepts federal funding for its prisons. Cutter, 2005 U.S. Lexis 4346, supra. Justice Ginsburg also made reference to Congressional hearings regarding the abuse of prisoner religious freedoms. The Cutter decision is worth reading if only for the insight offered by the portions of the hearing transcripts which appear in the decision. Pagans often think of themselves as the only mistreated religious minority. In some prisons, there is considerable opposition to the Catholic use of Sacramental Wine. Other abuses are noted and are worth noting by everyone.

Judge Ginsburg’s majority opinion reversed the decision of the Sixth Circuit Court of Appeals and specifically stated: “ . . . we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise.” Cutter, 2005 U.S. Lexis 4346, supra. The Court reminded everyone that in state-run institutions such as mental hospitals and prisons, there is a degree of governmental control which is “unparalleled in civilian society and severely disabling to private religious exercise.” Cutter, 2005 U.S. Lexis 4346, supra. In such a climate, the RLUIPA is necessary to protect institutionalized persons who are dependent upon the government’s permission and accommodation for the exercise of their religion. Cutter, 2005 U.S. Lexis 4346, supra. However, before seeking recourse to the courts and RLUIPA, institutionalized persons must first exhaust their administrative remedies in accordance with the Prison Litigation Reform Act of 1995. Cutter, 2005 U.S. Lexis 4346, supra.

Once a RLUIPA claim reaches the court, there must be an adequate account of any burden which the requested accommodation may impose, and the RLUIPA must administered neutrally among different faiths. No religious sect can have privileged status under the statute, and the statute does not single out any bona fide faith for disadvantageous treatment. Cutter, 2005 U.S. Lexis 4346, supra. However, prison security does represent a compelling state interest under RLUIPA, and deference to the expertise of institutional officials is due. Thus, prison officials may make inquiry as to whether the “religiosity” for which accommodation is requested is, in fact, authentic; the professed “religiosity” must be genuine. Cutter, 2005 U.S. Lexis 4346, supra.

So, we are still left with a judicial climate much as that before this case was decided. Prison security may well be the overriding issue; prisoners still have to exhaust their administrative remedies; and there will still be inquiry as to whether the belief and/or practice for which accommodation is sought is genuine and/or sincere. Incarcerated Pagans continue to be leaders in the fight for Pagan religious freedom, their cases providing us with significant legal clout in our struggle for recognition and equality.


Dana D Eilers

Location: North Chatham, Massachusetts

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