Ralph Harrison Benning v. William F. Amideo

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 02, 2004
Nos. 04-10979 THOMAS K. KAHN
& 04-11044 CLERK
________________________

D. C. Docket No. 02-00139-CV-6

RALPH HARRISON BENNING,

Plaintiff-Appellee,

versus

THE STATE OF GEORGIA,
THE GEORGIA DEPARTMENT OF CORRECTIONS,

Defendants-Appellants,

UNITED STATES OF AMERICA,

Intervenor-Defendant-
Appellee.

________________________

Appeals from the United States District Court
for the Southern District of Georgia
_________________________

(December 2, 2004)

Before EDMONDSON, Chief Judge, PRYOR and FAY, Circuit Judges.
PRYOR, Circuit Judge:

The issues presented in this appeal are whether Congress exceeded its

authority under the Spending Clause of the Constitution or violated either the

Establishment Clause or the Tenth Amendment in enacting section 3 of the

Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires

state prisons that receive federal funds to refrain from burdening the religious

exercise of prisoners. Because Congress properly exercised its spending power by

unambiguously conditioning the use of federal funds for state prisons on the

related accommodation of the religious exercise of prisoners and that

accommodation does not endorse a religious viewpoint, we conclude that this

section of RLUIPA was validly enacted under the Spending Clause and does not

violate either the Establishment Clause or the Tenth Amendment.

I. BACKGROUND

Ralph Benning is an inmate in the Georgia prison system. He asserts that he

is a “Torah observant Jew” and is “compelled by [his] system of religious belief to

eat only kosher food,” “wear a yarmulke at all times,” “to observe specific holy

days,” and “perform specific rituals.” Benning asked a number of state and prison

officials to provide him with a kosher diet and permit him to wear a yarmulke.

Prison officials denied Benning’s requests. Benning also filed an internal prison

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grievance in which he specifically asserted his rights under RLUIPA. Benning’s

grievance failed.

Benning filed this lawsuit against Georgia, the Georgia Department of

Corrections (DOC), and several Georgia officials. Georgia moved to dismiss and

argued that section 3 of RLUIPA, 42 U.S.C. section 2000cc-1, exceeds the

authority of Congress under the Spending and Commerce Clauses, and violates the

Tenth Amendment and the Establishment Clause. The United States intervened to

defend the constitutionality of RLUIPA.

The district court dismissed Benning’s claims against the individual

defendants, but concluded that RLUIPA does not violate the Establishment Clause

and denied the motion to dismiss with regard to Georgia and the DOC. The

district court certified its denial of the motion to dismiss for immediate appeal,

under Federal Rule of Civil Procedure 54(b), and alternatively certified its ruling

for interlocutory appeal under 28 U.S.C. section 1292(b). We granted the petition

by Georgia for permission to appeal under section 1292(b).

II. STANDARD OF REVIEW

We review de novo the constitutionality of an act of Congress. Gulf Power

Co. v. United States, 187 F.3d 1324, 1328 (11th Cir. 1999). Georgia has the

burden to show that section 3 of RLUIPA is unconstitutional. “Proper respect for

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a co-ordinate branch of the government requires the courts of the United States to

give effect to the presumption that [C]ongress will pass no act not within its

constitutional power. This presumption should prevail unless the lack of

constitutional authority to pass an act in question is clearly demonstrated.” United

States v. Harris, 106 U.S. 629, 635, 1 S. Ct. 601, 606 (1883). As the Supreme

Court explained in United States v. Morrison, “we invalidate a congressional

enactment only upon a plain showing that Congress has exceeded its constitutional

bounds.” 529 U.S. 598, 607, 120 S. Ct. 1740, 1746 (2000). Because this is a

facial challenge to section 3, Georgia must also show that there is no set of

circumstances in which section 3 can be applied without violating the

Constitution:

A facial challenge, as distinguished from an as-applied challenge,
seeks to invalidate a statute or regulation itself. The general rule is that
for a facial challenge to a legislative enactment to succeed, the
challenger must establish that no set of circumstances exists under
which the Act would be valid. The fact that a legislative act might
operate unconstitutionally under some conceivable set of circumstances
is insufficient to render it wholly invalid. This heavy burden makes
such an attack the most difficult challenge to mount successfully against
an enactment.

Horton v. City of St. Augustine, 272 F.3d 1318, 1329 (11th Cir. 2001) (internal

quotation marks and citations omitted).

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 III. DISCUSSION

Section 3 of RLUIPA applies strict scrutiny to government actions that

substantially burden the religious exercise of institutionalized persons:

No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, ... even if
the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that person–
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
...
This section applies in any case in which–
(1) the substantial burden is imposed in a program or activity that
receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial
burden would affect, commerce with foreign nations, among the
several States, or with Indian tribes.

42 U.S.C. § 2000cc-1. Although we upheld section 2, the land use section of

RLUIPA, 42 U.S.C. section 2000cc(a)(1) and (b), as constitutional in Midrash

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), the

constitutionality of section 3 is an issue of first impression in this circuit.

Four of our sister circuits have considered the constitutionality of this

section, and three have upheld it. The Seventh and Ninth Circuits have concluded

that section 3 of RLUIPA is a valid exercise of the spending power of Congress

and does not violate the Establishment Clause or the Tenth Amendment. Charles

5
v. Verhagen, 348 F.3d 601 (7th Cir. 2003); Mayweathers v. Newland, 314 F.3d

1062 (9th Cir. 2002). The Fourth Circuit has also upheld section 3 under the

Establishment Clause. Madison v. Riter, 355 F.3d 310 (4th Cir. 2003). Only the

Sixth Circuit has held that section 3 violates the Establishment Clause. Cutter v.

Wilkinson, 349 F.3d 257 (6th Cir. 2003).

Georgia argues that Congress, in enacting section 3 of RLUIPA, exceeded

its authority under Article I, section 8, and, alternatively, violated either the First

Amendment or the Tenth Amendment. Although both Benning and the United

States argue that Congress acted within its authority under both the Spending

Clause and the Commerce Clause, we need not address both arguments so long as

Congress validly exercised either source of authority. We address the authority of

Congress under the Spending Clause before turning to the objections Georgia

raises under both the First and Tenth Amendments.

A. Congress Properly Exercised Its Spending Power.

The Constitution empowers Congress to “lay and collect taxes, duties,

imposts and excises, to pay the debts and provide for the common defense and

general welfare of the United States.” U.S. Const. Art. I, § 8, cl. 1. It is well-

settled that “[i]ncident to this power, Congress may attach conditions on the

receipt of federal funds.” South Dakota v. Dole, 483 U.S. 203, 206, 107 S. Ct.

6
2793, 2795-96 (1987). This power can be exercised to achieve goals not within

the other enumerated powers of Congress in Article I, id. at 207, 107 S. Ct. at

2796, but this power is also limited.

The Supreme Court has identified four restrictions on the spending power of

Congress. First, conditions attached by Congress on the expenditure of federal

funds must promote the general welfare, and not be in the service of narrow and

private interests. Id. Second, conditions on the state receipt of federal funds must

be unambiguous, and enable “the States to exercise their choice knowingly,

cognizant of the consequences of their participation.” Id. Third, the Supreme

Court has “suggested (without significant elaboration) that conditions on federal

grants might be illegitimate if they are unrelated to the federal interest in particular

national projects or programs.” Id. (internal quotation marks and citations

omitted). Fourth, no condition attached to receipt of federal funds may violate

other provisions of the Constitution. Id. at 208, 107 S. Ct. at 2796. Georgia does

not dispute that RLUIPA serves the general welfare, so we limit our discussion to

the three remaining issues.

1. The Conditions of RLUIPA Are Unambiguous.

Congress may condition the expenditures of federal funds on the

furtherance of federal objectives, but when the recipient of those funds is a state

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the conditions imposed by Congress must be unambiguous:

[L]egislation enacted pursuant to the spending power is much in the
nature of a contract: in return for federal funds, the States agree to
comply with federally imposed conditions. The legitimacy of Congress’
power to legislate under the spending power thus rests on whether the
State voluntarily and knowingly accepts the terms of the “contract.”
There can, of course, be no knowing acceptance if a State is unaware of
the conditions or is unable to ascertain what is expected of it.
Accordingly, if Congress intends to impose a condition on the grant of
federal moneys, it must do so unambiguously.

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 1540

(1981) (internal citations omitted).

Georgia argues that the conditions of RLUIPA are ambiguous, contrary to

Pennhurst, in four ways: (1) RLUIPA does not put states on clear notice that, by

accepting federal funds, they waive immunity to suits brought under the act; (2)

RLUIPA does not clearly inform states that they have an option whether to accept

or reject federal funds; (3) federal grants do not mention the requirements that

RLUIPA will impose on states accepting the grants; and (4) the standard of least

restrictive means is too ambiguous to allow a state an informed choice. These

arguments fail.

Congress unambiguously required states to waive their sovereign immunity

from suits filed by prisoners to enforce RLUIPA. Section 2000cc-2(a) provides

that “[a] person may assert a violation of this chapter as a claim or defense in a

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judicial proceeding and obtain appropriate relief against a government.” 42

U.S.C. § 2000cc-2(a). The statutory definition of government specifically

includes states and state agencies. 42 U.S.C. § 2000cc-5(4)(A). Georgia was on

clear notice that by accepting federal funds for its prisons, Georgia waived its

immunity from suit under RLUIPA. “Where Congress has unambiguously

conditioned the receipt of federal funds on a waiver of immunity, [our decisions

do] not leave open the possibility that a state can continue to accept federal funds

without knowingly waiving its immunity.” Garrett v. Univ. of Ala. at Birmingham

Bd. of Trs., 344 F.3d 1288, 1293 (11th Cir. 2003).

Congress need not inform the states of their self-evident ability to decline

federal funds nor include within each federal grant a list of all accompanying

conditions. It is sufficient for the text of RLUIPA to link unambiguously its

conditions to the receipt of federal funds and define those conditions clearly

enough for the states to make an informed choice. Pennhurst, 451 U.S. at 25, 101

S. Ct. at 1544. RLUIPA applies in any case in which “the substantial burden is

imposed in a program or activity that receives Federal financial assistance.” 42

U.S.C. § 2000cc-1(b)(1).

The standard of least restrictive means is far from ambiguous in informing

states of their responsibilities when they receive federal funds. RLUIPA forbids

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the states from imposing substantial burdens on religious exercise absent a

compelling government interest accomplished by the least restrictive means

necessary to serve that interest. This standard is not new to Georgia or any state.

In Midrash, we observed that RLUIPA reanimates the strict scrutiny long applied

to the states in disputes regarding the free exercise of religion both before and

after Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990).

Midrash, 366 F.3d at 1236-37. RLUIPA gives states wide latitude in applying its

provisions, but this flexibility does not make the conditions of RLUIPA opaque.

“[O]nce Congress clearly signals its intent to attach federal conditions to Spending

Clause legislation, it need not specifically identify and proscribe in advance every

conceivable state action that would be improper.” Sandoval v. Hagan, 197 F.3d

484, 495 (11th Cir. 1999), overruled on other grounds, Alexander v. Sandoval,

532 U.S. 275, 121 S. Ct. 1511 (2001).

The Supreme Court has explained that so long as a spending condition has a

clear and actionable prohibition of discrimination, it does not matter that the

manner of that discrimination can vary widely. In Davis v. Monroe County Board

of Education, for example, the Court upheld the prohibition of sexual harassment

in schools that receive federal funds, under Title IX, and its corresponding right of

action, even though “the level of actionable ‘harassment’ ... ‘depends on a

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constellation of surrounding circumstances, expectations, and relationships,’ ...

including but not limited to, the ages of the harasser and the victim and the number

of individuals involved .... ” 526 U.S. 629, 651, 119 S. Ct. 1661, 1675 (1999)

(quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82, 118 S. Ct. 998,

1003 (1998)). The clear prohibition of discrimination in Title IX provided

adequate notice to the recipients of federal funds that severe student-on-student

harassment was actionable. Id.

Georgia erroneously relies on Pennhurst to support its argument that

RLUIPA is ambiguous. In Pennhurst, a federal suit failed when the plaintiffs

argued that a federal law that declared “a right to appropriate treatment” for certain

patients “provided in the setting that is least restrictive of the [patient’s] individual

liberty” created a substantive right against the states. Pennhurst, 451 U.S. at 14,

101 S. Ct. at 1538. The Court reasoned, “It is difficult to know what is meant by

providing ‘appropriate treatment’ in the ‘least restrictive’ setting, and it is unlikely

that a State would have accepted federal funds had it known it would be bound to

provide such treatment.” Id. at 24-25, 101 S. Ct. at 1543-44. “Congress fell well

short of providing clear notice to the States that they, by accepting funds under the

Act, would indeed be obligated to comply with [the treatment standards].” Id.

The federal law in Pennhurst was unclear as to whether the states incurred any

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obligations at all by accepting federal funds, but RLUIPA is clear that states incur

an obligation when they accept federal funds, even if the method for compliance is

left to the states. Pennhurst does not require more.

Our sister circuits that have considered this question reached the same

conclusion. In Mayweathers, the Ninth Circuit stated, “Congress is not required to

list every factual instance in which a state will fail to comply with a condition.

Such specificity would prove too onerous, and, perhaps, impossible. Congress

must, however, make the existence of the condition itself–in exchange for the

receipt of federal funds–explicitly obvious.” Mayweathers, 314 F.3d at 1067. The

Seventh Circuit explained, “Congress permissibly conditioned the receipt of

federal money in such a way that each State is made aware of the condition and is

simultaneously given the freedom to tailor compliance according to its particular

penological interests and circumstances.” Charles, 348 F.3d at 608. No federal

appellate court has held to the contrary, and we decline to be the first.

2. RLUIPA is Rationally Related to a Federal Interest.

Georgia erroneously argues that the federal grants for its prisons are

unrelated to the objectives of RLUIPA. Georgia relies on the statement in Dole

that the Court has “suggested (without significant elaboration) that conditions on

federal grants might be illegitimate if they are unrelated to the federal interest in

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particular national projects or programs.” Dole, 483 U.S. at 207, 107 S. Ct. at

2796 (internal citations omitted). The problem with this argument is that the

United States has a substantial interest in ensuring that state prisons that receive

federal funds protect the federal civil rights of prisoners.

Congress has every right to ensure that the state prisons that accept federal

funds respect the religious freedom of prisoners and promote their rehabilitation:

Congress has a strong interest in making certain that federal funds do
not subsidize conduct that infringes individual liberties, such as the free
practice of one’s religion. The federal government also has a strong
interest in monitoring the treatment of federal inmates housed in state
prisons and in contributing to their rehabilitation. Congress may
allocate federal funds freely, then, to protect the free exercise of religion
and to promote rehabilitation. If the Supreme Court has in fact imposed
a low-threshold relatedness test, RLUIPA satisfies it.

Mayweathers, 314 F.3d at 1067; see also Charles, 348 F.3d at 608-09.

The warning in Dole that Spending Clause legislation “might be

illegitimate” if it is “unrelated” to the purpose of the federal spending program,

Dole, 483 U.S. at 207, 107 S. Ct. at 2796, and the guidance in New York v. United

States, 505 U.S. 144, 167, 112 S. Ct. 2408, 2423 (1992), that Spending Clause

legislation should bear “some relationship to the purpose of the federal spending,”

establish a minimal standard of rationality. RLUIPA easily satisfies this standard.

Both the protection of the religious exercise of prisoners and their rehabilitation

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are rational goals of Congress, and those goals are related to the use of federal

funds for state prisons.

Georgia fails in its argument that highway safety, the federal interest in

Dole, was tied more closely to the funding condition that states raise their legal

drinking age to 21 than the funding of prisons is tied to the objectives of RLUIPA.

The connection between raising the drinking age and highway funds is no more

related than the connection between accommodating the religious exercise of

prisoners and correctional funds. Mayweathers, 314 F.3d at 1067; Charles, 348

F.3d at 608-09. If anything, the protection of the free exercise of religion, a civil

right guaranteed by the First Amendment, is a more substantial federal interest

than highway safety.

Georgia also wrongly argues that the extensive conditions imposed by

RLUIPA are not in proportion to the small amount of federal funds dedicated to

state correctional systems. Georgia relies on Rust v. Sullivan, 500 U.S. 173, 111

S. Ct. 1759 (1990), and FCC v. League of Women Voters, 468 U.S. 364, 104 S.

Ct. 3106 (1984), in support of this argument. Although both of those decisions

briefly discussed the Spending Clause, the holdings of the Court turned on

statutory conditions that violated the free speech rights of individual citizens.

Neither decision involved conditions imposed on the receipt of federal funds by

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states. As the Seventh Circuit stated in Charles, both Rust and League of Women

Voters “are inapposite; they do not even concern the Spending Clause.” Charles,

348 F.3d at 601.

The Seventh Circuit also correctly explained in Charles that there is no

standard of proportionality for spending legislation:

Nothing within Spending Clause jurisprudence, or RLUIPA for that
matter, suggests that States are bound by the conditional grant of federal
money only if the State receives or derives a certain percentage ... of its
budget from federal funds. If a State wishes to receive any federal
funding, it must accept the related, unambiguous conditions in their
entirety.

Id. Likewise, Georgia cannot accept federal funds and then attempt to avoid their

accompanying conditions by arguing that the conditions are disproportionate in

scope.

B. The Proper Use of Spending Power Does Not Violate the Tenth Amendment.

Georgia next erroneously argues that the Tenth Amendment provides an

independent constitutional bar because RLUIPA interferes with a core state

function of administering prisons. If the enactment of RLUIPA is within an

enumerated power of Congress, however, the Tenth Amendment does not apply.

Midrash, 366 F.3d at 1242. Because we have already concluded that RLUIPA is

valid spending legislation, this argument fails.

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 Georgia alternatively argues that RLUIPA invades the regulatory purview of

states so extensively as to violate the Tenth Amendment, but this argument is

undermined by our recent precedent. In Midrash, this Court held that RLUIPA

does not violate the Tenth Amendment. Although RLUIPA “may preempt laws

that discriminate against or exclude religious institutions entirely, it leaves

individual states free to eliminate the discrimination in any way they choose, so

long as the discrimination is actually eliminated.” Midrash, 366 F.3d at 1242.

“RLUIPA’s core policy is not to regulate the states or compel their enforcement of

a federal regulatory program, but to protect the exercise of religion, a valid

exercise of [the power of Congress], which does not run afoul of the Tenth

Amendment’s protection of the principles of federalism.” Id. at 1243. Midrash

guides us, even though the authority for section 3 of RLUIPA is found in the

Spending Clause, and the authority for section 2, which was at issue in Midrash, is

found in Section Five of the Fourteenth Amendment. Because RLUIPA does not

compel the states to regulate in a specific manner and is a valid exercise of a

power of Congress, RLUIPA does not violate the Tenth Amendment. See also

Charles, 348 F.3d at 609; Mayweathers, 314 F.3d at 1069.

C. RLUIPA Does Not Violate the Establishment Clause.

Georgia argues that RLUIPA violates the Establishment Clause, under the

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three-part test established in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105

(1971). The Lemon test requires that statutes have a secular purpose, have a

primary effect that neither advances nor inhibits religion, and not entangle

excessively government with religion. Id. at 612-13, 91 S. Ct. at 2111. We have

held that section 2 of RLUIPA does not violate the Establishment Clause,

Midrash, 366 F.3d at 1240-42, and three of the four circuits to consider whether

section 3 of RLUIPA violates the Establishment Clause have upheld it.

Mayweathers, 314 F.3d at 1068-69; Charles, 348 F.3d at 610-11; Madison, 355

F.3d at 315-22; but see Cutter, 349 F.3d at 262-68 (holding section 3 of RLUIPA

violates the Establishment Clause). We consider each part of the Lemon test in

turn, and conclude that section 3 of RLUIPA does not violate the Establishment

Clause.

1. RLUIPA Has a Secular Purpose.

The first part of the Lemon inquiry is whether the law in question has a

secular purpose. The Supreme Court has explained that a secular purpose need not

be hostile or even unrelated to religion:

This does not mean that the law’s purpose must be unrelated to
religion – that would amount to a requirement that the government
show a callous indifference to religious groups, and the Establishment
Clause has never been so interpreted. Rather, Lemon’s ‘purpose’
requirement aims at preventing the relevant government

17
 decisionmaker–in this case, Congress–from abandoning neutrality
and acting with the intent of promoting a particular point of view in
religious matters.

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 335, 107 S. Ct. 2862, 2868 (1987) (internal citations omitted). In

Amos, the Court, for example, upheld section 702 of the Civil Rights Act of 1964,

which exempts religious organizations from the prohibitions of discrimination in

employment on the basis of religion. The Court held that it was “a permissible

legislative purpose to alleviate significant governmental interference with the

ability of religious organizations to define and carry out their mission.” Id.

Like section 702 of the Civil Rights Act, RLUIPA advances the secular

purpose of “protecting the free exercise of religion from unnecessary government

interference.” 146 Cong. Rec. E1234, E1235 (daily ed. July 14, 2000) (statement

of Rep. Canady); see also Madison, 355 F.3d at 317; Mayweathers, 314 F.3d at

1068. This Court has held that “where, as [in the case of section 2 of RLUIPA], a

law’s purpose is to alleviate significant interference with the exercise of religion,

that purpose does not violate the Establishment Clause.” Midrash, 366 F.3d at

1241. As discussed above in Part III.A.2, rehabilitation of prisoners is also a

secular purpose underlying RLUIPA. Although the Sixth Circuit reached the

opposite conclusion in Cutter, it did not discuss rehabilitation as a purpose for

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RLUIPA. 349 F.3d at 263-64. In any event, our conclusion in Midrash is binding;

RLUIPA has a permissible secular purpose.

2. RLUIPA Does Not Advance or Inhibit Religion.

Georgia argues that RLUIPA violates the second part of Lemon by

impermissibly advancing religion through endorsement in two ways: first, by

providing unique advantages to religious prisoners solely on account of their

religion, and, second, by imposing improper burdens on third parties. Neither

argument is persuasive.

a. RLUIPA Does Not Improperly Provide Religion Unique Advantages.

Georgia erroneously argues that by affording heightened protection for

religious exercise relative to other fundamental rights, RLUIPA conveys an

impermissible message of preference for religion in violation of the admonition of

the Supreme Court that “government may not favor religious belief over

disbelief.” County of Allegheny v. ACLU, 492 U.S. 573, 593, 109 S. Ct. 3086,

3101 (1989). Singling out free exercise rights for protection is not an

impermissible endorsement of religion. As the Fourth Circuit noted in Madison,

the Supreme Court has not held that “legislative protections for fundamental rights

march in lockstep.” Id. at 318. In fact, it is “reasonable for Congress to seek to

reduce the burdens on religious exercise for prisoners without simultaneously

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enhancing, say, an inmate’s First Amendment rights to access pornography.” Id.

at 319. If, as Georgia argues, protecting religious exercise rights alone reflects an

impermissible bias in favor of religion, then protecting any fundamental right

other than religion would reflect impermissible bias against religion.

Interpreting the Establishment Clause to require a rigid symmetry of

protection for all fundamental rights would cut a broad swath through a forest of

government programs and protections of religious exercise. State and federal

funds provide government chaplains for Congress and state legislatures, the armed

forces, and prisons. See, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330

(1983). Federal statutes accommodate religious apparel in the armed forces, 10

U.S.C. section 774, and exempt members of certain religious faiths from paying

Social Security taxes, 26 U.S.C. section 1402(g). Religious organizations may be

exempted from paying generally applicable property taxes. Walz v. Tax Comm’n

of City of New York, 397 U.S. 664, 90 S. Ct. 1409 (1970). Public schools may

establish programs providing release time for the religious instruction of students.

Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679 (1952). At least twelve states, by

statute or constitutional amendment, single out religious expression for special

protection, including two states that submitted a brief to this Court as amici curiae

in opposition to RLUIPA, 775 Ill. Comp. Stat. 35/1-35/99; Okla. Stat. Ann. tit. 51,

20
section 251, and two states in this circuit, Ala. Const. amend. 622; Fla. Stat. Ann.

sections 761.01-761.04. States, including Georgia, exempt religious use of

alcoholic beverages from laws setting the legal drinking age. See, e.g., Ala. Code

§ 28-3-15; Ariz. Rev. Stat. Ann. § 4-244; Colo. Rev. Stat. Ann. § 18-13-122; Fla.

Stat. Ann. § 564.03(5); Ga. Code Ann. § 3-3-23; 235 Ill. Comp. Stat. Ann. 5/6-20;

Ohio Rev. Code Ann. § 4301.69; S.C. Code Ann. § 61-6-4070; Wash. Rev. Code

Ann. § 66.44.270; Wis. Stat. Ann. § 125.07. In Smith, after holding that the Free

Exercise Clause does not mandate exemptions from generally applicable drug laws

for the religious use of peyote, the Supreme Court affirmed the right of legislatures

to protect religious exercise beyond the reach of the First Amendment and cited

with approval state statutes exempting religious peyote use from general drug

laws. Smith, 494 U.S. at 890, 110 S. Ct. at 1606. Today, 28 state statutes and a

federal statute exempt religious peyote use. 42 U.S.C. § 1996a; H.R. Rep. No.

103-675, at 7 (1994), reprinted in 1994 U.S.C.C.A.N. 2404, 2409. A sweeping

invalidation of all accommodations of religion is wholly inconsistent with the

history, traditions, and laws of our nation.

Furthermore, this kind of argument was squarely rejected by the Court in

Amos. The Court explained that, when the government exempted religious

employers from the prohibition of discrimination based on religion, the

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government was not bound to provide a corresponding benefit to secular

employers:

[We have] never indicated that statutes that give special consideration
to religious groups are per se invalid. That would run contrary to the
teaching of our cases that there is ample room for accommodation of
religion under the Establishment Clause. Where, as here, government
acts with the purpose of lifting a regulation that burdens the exercise of
religion, we see no reason to require that the exemption come packaged
with benefits to secular entities.

Amos, 483 U.S. at 338, 107 S. Ct. at 2869.

We disagree with the Sixth Circuit, which held that the heightened

protection granted to religious exercise by RLUIPA “‘violates the basic

requirement of neutrality embodied in the Establishment Clause.’” Cutter, 349

F.3d at 266 (quoting Madison v. Riter, 240 F. Supp. 2d 566, 577 (W.D. Va. 2003),

overruled by Madison, 355 F.3d at 322). The Sixth Circuit distinguished Amos

on the ground that the exemption at issue was “arguably necessary to avoid an

Establishment Clause violation” and a “narrowly tailored solution to the potential

Establishment Clause problem.” Cutter, 349 F.3d at 268. We find no such

language or distinction in the majority opinion in Amos. On the contrary, the

language in Amos quoted above specifically rejected the neutrality argument

accepted by the Sixth Circuit. Amos, 483 U.S. at 338, 107 S. Ct. at 2869.

Georgia also attempts to distinguish Amos by arguing that, under RLUIPA,

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the government injects itself into religion instead of withdrawing from it. This

argument ignores that state prisons, which Georgia concedes employ chaplains

and provide times and places for religious worship, are already necessarily

involved in the religious exercises of prisoners, as in all other areas of their lives.

Invalidating RLUIPA would not excise the state from the religious exercise of

prisoners.

We recognize that the prison environment poses serious challenges to

officials responsible for complying with RLUIPA, but these challenges “speak

more to the wisdom of the law and to the disincentives for states to assume their

RLUIPA obligations than to RLUIPA’s validity under the Establishment Clause.”

Madison, 355 F.3d at 319. In fact, the very nature of the prison environment

compels our conclusion that RLUIPA does not violate the Establishment Clause.

Given the necessarily strict rules that govern every aspect of prison life, the failure

of prison officials to accommodate religion, even in the absence of RLUIPA,

would not be neutral; it would be hostile to religion. As Justice Brennan explained

more than forty years ago, “hostility, not neutrality, would characterize the refusal

to provide chaplains and places of worship for prisoners and soldiers cut off by the

State from all civilian opportunities for public communion .... ” Sch. Dist. of

Abington Twp. v. Schempp, 374 U.S. 203, 299, 83 S. Ct. 1560, 1612 (1963)

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(Brennan, J., concurring). The state may accommodate the religious exercise of its

prisoners without necessarily affording all other rights equal deference.

b. RLUIPA Does Not Unduly Burden Georgia.

Georgia argues that RLUIPA imposes on third parties costs and burdens that

violate the Establishment Clause. Georgia cites Estate of Thornton v. Caldor, Inc.,

472 U.S. 703, 105 S. Ct. 2914 (1985), and Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 109 S. Ct. 890 (1989) (plurality), for the proposition that statutes

exempting religious beneficiaries from generally applicable laws are

unconstitutional when the exemptions burden third parties. In Caldor, the Court

invalidated a statute that imposed substantial economic burdens on private parties

in the process of removing privately-imposed burdens on religious exercise. 472

U.S. at 708-10, 105 S. Ct. at 2918. In Bullock, a plurality of the Court held that a

Texas tax exemption for religious literature violated the Establishment Clause

because the exemption applied only to religious literature and printers of non-

religious literature would carry an additional tax burden to offset the benefit to

religion. Bullock, 489 U.S. at 18 n.8, 109 S. Ct. at 901 n.8. Although these

decisions suggest that some religious accommodations that economically burden

third parties violate the Establishment Clause, RLUIPA does not create this sort of

involuntary economic burden.

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 Georgia argues that RLUIPA will impose significant expenses on the DOC

and prevent the DOC from providing other services, but if Georgia finds

compliance with RLUIPA impractical, Georgia can refuse federal funds. The

Fourth Circuit distinguished the statute in Caldor from RLUIPA by explaining that

“Caldor concerned an unfunded mandate imposed on private employers to lift

privately-imposed burdens on the religious exercise of employees. Here [the state]

has voluntarily committed itself to lifting government-imposed burdens on the

religious exercise of publicly institutionalized persons in exchange for federal

correctional funds.” Madison, 355 F.3d at 321. Bullock was no different;

whatever burden may have fallen on non-religious taxpayers did so without their

consent. Georgia cannot complain about the costs of RLUIPA, because Georgia

consented to the costs when it accepted federal funds.

Georgia also erroneously argues that non-religious prisoners and prison

staff will suffer substantial burdens when religious accommodations exempt

certain prisoners from rules designed to serve health and safety concerns. If a

requested exemption from health or safety rules is so serious as to place members

of the prison community at risk, RLUIPA allows Georgia to deny the exemption

so long as the challenged rule serves a compelling interest, such as prison safety,

and the challenged rule is the least restrictive means of serving that interest.

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History shows that strict scrutiny does not automatically invalidate all substantial

burdens on religion, especially in prisons; under the same standard imposed by the

Religious Freedom Restoration Act, the predecessor to RLUIPA, only a small

percentage of prisoners’ claims were successful. See Ira C. Lupu, Why the

Congress was Wrong and the Court was Right–Reflections on City of Boerne v.

Flores, 39 Wm. & Mary L. Rev. 793, 802-03 (1998). RLUIPA does not impose

costs on states without their consent, and RLUIPA allows states to satisfy

compelling interests, such as prison safety.

3. RLUIPA Does Not Entangle Excessively Georgia With Religion.

Georgia argues that RLUIPA excessively entangles the government with

religion by requiring state prisons to “assess the validity of each religious request

no matter how trite, expensive or disruptive” and “question the centrality of

particular beliefs or practices to a faith, or the validity of particular litigants’

interpretations of those creeds,” but this argument fails for at least two reasons.

First, the text of RLUIPA defeats this argument, as it defines “religious exercise”

to include “any exercise of religion, whether or not compelled by, or central to, a

system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). The Fourth Circuit

recognized that this provision “mitigates any dangers that entanglement may result

from administrative review of good-faith religious belief.” Madison, 355 F.3d at

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320. Second, the First Amendment already requires Georgia to determine whether

the asserted belief of an inmate making a Free Exercise claim is religious and

sincerely held. See, e.g., Martinelli v. Dugger, 817 F.2d 1499, 1503 (11th Cir.

1987), abrogated on other grounds by Harris v. Chapman, 97 F.3d 499 (11th Cir.

1996); Sutton v. Rasheed, 323 F.3d 236, 250-51 (3d Cir. 2003). Even the Sixth

Circuit, the lone circuit to hold RLUIPA unconstitutional, suggested, without

deciding the issue, that RLUIPA does little to increase existing government

entanglement with religion. Cutter, 349 F.3d at 268. RLUIPA does not alter the

nature of government entanglement with religion in the prison context.

Although Georgia urges us to hold Benning’s requested kosher diet

unconstitutional, the merits of Benning’s complaint are not at issue in this

interlocutory appeal. The district court has not yet held that RLUIPA compels

Georgia to provide Benning with a kosher diet or allow him to wear a yarmulke,

and we do not so hold. This issue and all remaining issues must be determined by

the district court on remand.

IV. CONCLUSION

Because section 3 of RLUIPA was validly enacted under the Spending

Clause and does not violate either the Tenth Amendment or the Establishment

Clause of the First Amendment, the judgment of the district court is

AFFIRMED.

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