Satan Worshipper, Witch Testing Religious Liberty

BY LUIZA Ch. SAVAGE - Staff Reporter of the Sun
December 24, 2004

WASHINGTON - A religious liberties lawsuit brought by a Satan worshipper, a Wiccan witch, a white supremacist, and an adherent of an ancient Viking religion is drawing the impassioned support of major national religious groups as it approaches a hearing before the Supreme Court.

The case is potentially the most important religious liberties case on this year's docket, impacting how far a state can go to accommodate the religious practices of its citizens and whether Congress can require states to be more accommodating.

The case was filed by a group of Ohio inmates - Jon Cutter, J. Lee Hampton, John Gerhardt, John Miller, and Daryl Blankenship - who are demanding access to religious books, medallions, and costumes, as well as the right to worship in groups while in custody.

Ohio prison officials have dismissed their religious claims as a cover for gang activities, noting as an example that one of the plaintiffs belongs to a church that has been linked to the Ku Klux Klan. Their lawyer countered that they are sincere: Mr. Blankenship, who practices a polytheistic Nordic religion called Asatru, fasted for weeks in protest of prison rules and was hospitalized.

Depending on how the court approaches the question, the case could affect a broader range of accommodations - from excusing college students from attendance on religious holidays to more liberal zoning rules for houses of worship.

The basis for the lawsuit was the 2000 Religious Land Use and Institutionalized Persons Act, a federal law that imposed broader protections for religious practices at state institutions. Religious groups were stunned when the U.S. Court of Appeals for the 6th Circuit struck it down last year, ruling that the law violated the Constitution's ban on the establishment of religion.

The court held that under the Constitution, states cannot exempt religious inmates from restrictions that are imposed on other prisoners. Such accommodations promote and encourage inmates to adopt a religion in order to secure privileges, the court reasoned.

If the Supreme Court upholds that opinion, "It means that no state or federal government can ever bend its rules to accommodate religious practice," said a lawyer for the plaintiffs, Marc Stern. "The whole fabric of relations between government and religion would be radically restructured."

The case is drawing national attention in part because the Clinton-era law was passed by a near-unanimous vote in Congress, out of concern that prisoners and other institutionalized people were being denied accommodations - from kosher meals to visits by chaplains. The law requires prison officials to show not only that they had a rational reason for withholding the religious books or objects, but that the state had a "compelling interest" to do so.

This week, the court received written briefs supporting the law from more than 50 religious and civil rights groups, including the National Association of Evangelicals and the Coalition for the Free Exercise of Religion, an umbrella group that includes the Conference of Catholic Bishops; the Anti-Defamation League; numerous national Jewish, Muslim, Hindu, Sikh, Buddhist, Mennonite, Presbyterian, and Mormon groups; the liberal group People for the American Way, and the conservative Liberty Counsel.

The federal solicitor general has also asked the Supreme Court to uphold the law.

"Despite the fact that some folks will spend more time yelling and screaming about the Ten Commandments case this term, that is not going to affect peoples' lives day in and day out. This case will. This is the most significant religious liberties case before the court this year," said the director of public policy for the Union of Orthodox Jewish Congregations, Nathan Diament. His group has also filed a brief in the case, and it is concerned about access to kosher-slaughtered meat and the freedom to observe holy days.

The religious groups' position is also backed by the American Civil Liberties Union and Americans United for the Separation of Church and State, which have filed their own briefs before the court.

"We don't think it represents a preference for religion when the government is removing an obstacle to the free exercise of religion that the government itself imposed," said the national legal director of the ACLU, Steven Shapiro.

A spokesman for Americans United, Joseph Conn, called the law "perfectly reasonable."

The attorney general of New York, Eliot Spitzer, together with his counterpart in Washington State, has also joined the cause, filing a brief urging the court to uphold the law. "Our interest as a state is to ensure that our citizens have the broadest protections of their rights," said a deputy counsel in Mr. Spitzer's office, Avi Schick.

New York wants the court to give states broad leeway in accommodating the religious practices of citizens. New York provides various religious accommodations, from allowing religious groups to discriminate in hiring, to providing sequestered jurors with food that meets their religious diets and allowing voters to opt out of voting in churches.

The law's congressional sponsors, Senator Kennedy, a Democrat of Massachusetts and Roman Catholic, and Senator Hatch, a Republican of Utah and Mormon, are also asking the court to uphold the law along with groups representing former prison officials and prison chaplains.

Notwithstanding the clamor, the attorney general of Ohio, Jim Petro, said he is confident the Supreme Court will strike down the law. One member, Justice Stevens, has in the past said that such accommodations give rights to religious people that are not available to other inmates, and some legal scholars share that view.

"The statute exceeds Congress's power, and it interferes with the state's ability to safely manage its prisons," Mr. Petro told the Sun in an e-mail.

However, several other courts have upheld the law.

Depending on how the justices approach the case, it could transform church-state relations in a broad way.

Ohio - which has until late next month to file its briefs - signaled it may attack one of the most powerful weapons Congress has to enforce federal civil rights laws in the states: attaching conditions to the money it gives to the states.

"It would radically limit the power of Congress to say, 'If you want our money, you have to use it in a way that is appropriate,' " said a lawyer for the plaintiffs, David Goldberger, a professor of law at the Ohio State University College of Law.

Ohio could also attempt to argue that the federal government has no business regulating religious accommodations, on the hotly disputed theory that the framers of the Constitution intended the Establishment Clause to relegate such matters to the states.

If the court accepted that view, which has some adherents among legal scholars and has received sympathy from at least one member of the bench, Justice Thomas, then states would be free to provide as much or as little accommodation to religious practices as they wished.

"It becomes a crapshoot based on what day of the week it is and what side of the bed the official got up on," Mr. Goldberger said. In theory, states could also establish a state religion.

"You could have not just prayer in the classroom, but services in the gym. It would be a radical change in the law," said a professor of constitutional law at the University of Texas, Douglas Laycock, who co-authored a brief on behalf of the Union of Orthodox Jewish Congregations and the National Association of Evangelicals.

Although most lawyers do not expect the court to rule on all the federalism issues, some are nervous because the court chose to hear a case with such unusual plaintiffs when it had the option of considering similar issues in a case brought by a Virginia prisoner asking for kosher food.

"There are a lot more kosher meal cases and 'Can I get my chaplain?' visiting privileges cases than there are Satanists and witches," Mr. Laycock said.











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