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Published: Tuesday, 3/22/2005

Justices cool to Ohio claims in inmate case

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - The U.S. Supreme Court reacted skeptically yesterday to Ohio's argument that a federal law expanding the rights of prisoners to practice their religion violates the First Amendment and provides an incentive for inmates to embrace a faith, or pretend to, as a way to make their life behind bars easier.

With Chief Justice William Rehnquist on the bench for the first time since October, the court considered an appeal by several Ohio inmates - including a satanist - who say they were denied access to religious services and literature in violation of a 2000 law known as the Religious Land Use and Institutionalized Persons Act. That law requires prisons to accommodate inmates' religious practices unless doing so would undermine a compelling government interest that couldn't be achieved by less restrictive means.

State Solicitor Douglas Cole asked the justices to uphold a ruling by the 6th U.S. Circuit Court of Appeals that the law violated the First Amendment's ban on an "establishment of religion" because it provided an incentive for religious behavior.

"Is it permissible for Congress to create incentives for prisoners to say, 'I'm religious' by giving them a better shot at getting out of rules," Mr. Cole asked rhetorically. He also warned that "RLUIPA forces prison officials to change the balance they impose between freedom and stability."

Both liberal and conservative justices seemed unconvinced the accommodation to religious practice required by the law was any more an establishment of religion than long-standing practices like the appointment of prison chaplains or the holding of Christian and Jewish religious services inside prisons.

"Is there anything more here than 'Treat us the same as the mainstream religions'?‚óŹ" Justice John Paul Stevens asked.

Mr. Cole responded that some of the practices and emblems of newer religious groups coincided with gang membership or facilitated crime, as in the case of a convict who concealed betting slips in his beard.

Several justices indicated that any religious practice that threatened prison security could be suppressed under the law's language about "compelling government interest."

"I think it's pretty easy to get anything declared a compelling state interest," Justice Antonin Scalia told Mr. Cole.

The prisoners were represented by David Goldberger, a professor at Ohio State University's Moritz college of law, who was aided by 15 current or former students. Noting "Ohio already provides access to mainstream religions," he told the court that "it's important to assure that religious groups of all sorts are accommodated."

"Is satanism a mainstream religion?" Justice Scalia asked Mr. Goldberger, who replied: "I understand that there is some uncomfortable feeling about my clients' religious beliefs."

Mr. Goldberger was supported yesterday by U.S. Solicitor General Paul Clement, the administration's top courtroom lawyer, who has said the federal prisons have no difficulty accommodating various religious practices.

Mr. Clement offered an argument to appeal to justices like Justice Scalia, who voted in 1997 to strike down an earlier federal law requiring states to make accommodation to religious beliefs. He said it should view RLUIPA as an exercise of Congress' spending power because prisons in Ohio and elsewhere get federal funds and can thus be required to abide by federal rules. Justice Scalia agreed, telling him: "If you don't want the burden, don't take the money."

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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