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March 20, 2005

How will SCOTUS frame the issue in Cutter?

Tomorrow the Supreme Court is back in action, perhaps with the Chief at the helm for the first time in many months, and it will be hearing arguments in Cutter v. Wilkinson, an interesting case addressing the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA) in the prison context.  As I noted here, Cutter is something of a law school civil war because Ohio State professors are on both sides: my colleague David Goldberger is arguing for the prisoners and my colleague Douglas Cole, now serving as Ohio's Solicitor, is arguing for the state.  (OSU's Moritz College of Law has assembled materials and briefs on Cutter at this link.)

The Cutter case has garnered a lot of attention because of the religion issues (see this recent news story), but I am intrigued by its criminal justice and federalism aspects.  The case is another fascinating example, as I spotlighted here, of the intersection this SCOTUS term of criminal justice, constitutional law, federalism and hot button issues.  And the outcome my turn, I think, on whether the Justices view Cutter principally as a religion case, as a prison case, or as a federalism case.  Notably, the majority of Justices in the the Court's Johnson decision earlier this year about racial segregation in prisons (basics here) framed that case as about race rather than about prisons or federalism.  It will be interesting if changing the issue from race to religion (and adding a congressional statute to the mix) might change the way the case gets framed.

In addition, as I discussed in this post, Cutter arises at an interesting time in church-prison relations.  As detailed in interesting articles here and here and here, Florida and some other jurisdictions have been experimenting with "faith-based" prisons, which house inmates who have chosen to take part in rehabilitation programs run by volunteers from religious groups. Though Cutter may not directly impact the faith-based prison movement, the law and policy of religious involvement in corrections will likely be an issue of on-going concern for quite some time.

UPDATE: SCOTUSblog has an extended discussion of Cutter here, and How Appealing has collected some newspaper articles on Cutter here.

March 20, 2005 at 02:45 PM | Permalink

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