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Ohio Federal District Court Finds RLUIPA Constitutional

In a case of first impression in the Sixth U.S. Circuit, the Federal District Court for the Southern District of Ohio has refused to dismiss Ohio prisoners' religious rights claims based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§2000cc, et. seq. The court instead found RLUIPA constitutional.

The plaintiffs in three consolidated cases are all current or former prisoners of the Ohio Department of Rehabilitation and Correction (DORC). In the lead case, John Gerhardt, a former prisoner, is an ordained minister of Church of Jesus Christ Christian (CJCC), a group within the racist Christian Identity movement. In the second case, J. Lee Hampton is a practicing Wiccan, and Jon B. Cutter practices Satanism. In the third case, John Miller and others follow the Asatru religion, a polytheistic, Northern European religion, also known as Odinism, Vor Tru, and Troth.

In each case, plaintiffs sued under 42 U.S.C. §1983, alleging First Amendment religious rights violations, including denial of access to religious literature or materials necessary for the practice of their religion, denial of religious services, denial of freedom to dress or appear in conformity to their religion, denial of a prison chaplain specific to their religion, and retaliation and discrimination by DORC staff for seeking to practice and advance their religions. DORC claims that all the religions are merely "cover" for gang and other illegal activities that threaten prison security. When RLUIPA became law in 2000, all plaintiffs amended their complaints to include RLUIPA claims.

RLUIPA was passed to "prohibit governments from imposing, for any but compelling reasons, substantial burdens on the religious exercise of institutionalized persons." The prohibition applies only to governments or governmental agencies "that receive[] Federal financial assistance, or if the burden affects interstate or foreign commerce or commerce with Indian tribes," 42 U.S.C. §2000cc-1(b). RLUIPA was passed by exercising Congress' power under the Commerce and Spending Clauses of the Federal Constitution.

Essentially, RLUIPA replaces the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§2000bb, et. seq., with respect to State institutions and agencies. RFRA was struck down by the U.S. Supreme Court in City of Boerne v. Flores, 117 S.Ct. 2157 (1997), with respect to the states.

DORC filed motions to dismiss the RLUIPA claims in all three cases on grounds that RLUIPA is unconstitutional. The United States intervened to defend the constitutionality of RLUIPA. A magistrate reviewed the record and issued a report and recommendation.

DORC argued that Congress' Commerce and Spending Clause powers did not authorize it to pass RLUIPA. DORC argued that the Supreme Court set the standard for review of First Amendment religion cases in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), and that Boerne stood for the proposition that Congress could not undo this standard. In Smith, the Supreme Court held that laws of general applicability infringing on religious rights could be constitutional, even if not supported by a "compelling state interest," thus undoing the prior standard. RFRA and RLUIPA prohibit substantial burdens on a person's exercise of religion, even for laws of general applicability, unless the law furthers a compelling state interest and is the least restrictive means of furthering that interest.

The magistrate found that DORC both receives federal grants and is engaged in interstate commerce through its purchases, its prison industries' sales, its contracts with private prisons, its collect telephone system, and its interstate compacts for exchange, housing, and reciprocal parole supervision. DORC receives twentytwo grants worth over $14,000,000 annually. DORC admitted it will continue to apply for Federal grants.

The magistrate reviewed Congress' power under the Commerce and Spending Clauses, found that the Spending Clause by itself resolved the issue in a straightforward manner, and proceeded to analyze RLUIPA under the Spending Clause.

The court found that RLUIPA did promote the general welfare. Further, RLUIPA did not, as in Boerne, apply to all governments, but only to governments or agencies that received Federal funds in any form. The court found that DORC agreed to RLUIPA's conditions by accepting the grants. RLUIPA is not retroactive; it applies only to funds received after the date of enactment. Moreover, its statement of conditions was timely and unambiguous. DORC cannot claim it did not know of the changes it would face. As the court noted, "A common-sense reading of RLUIPA as a whole is sufficient to refute defendants' argument. ... Furthermore, the language used in [RLUIPA] closely parallels other federal statutes conditioning federal funding that have long been deemed to satisfy the notice requirement."

DORC claimed that the federal funding it received was not substantially connected to prisoners' religious activities. Further, the money received was so small in relation to DORC's total budget that imposing RLUIPA requirements on DORC was unfair. The court rejected DORC's first argument both because a substantial connection between federal funds and religious exercise was not required and because some of the programs for which DORC received funding did directly relate to prisoners' religious exercise. As for the amount of money involved, the magistrate (and later, the district judge) observed that if DORC did not want to be subject to RLUIPA, it could simply refuse federal grant money.

In a detailed analysis, the magistrate ruled that RLUIPA does not violate the Establishment Clause. RLUIPA allows for free exercise of all religions by institutionalized persons. It favors no religion particularly. Nor does RLUIPA violate the Tenth or Eleventh Amendment. DORC, in fact, waived its Eleventh Amendment immunity by accepting the federal funds and agreeing to abide by RLUIPA.

The magistrate found no constitutional violations in RLUIPA and recommended that DORC's motions to dismiss be denied. DORC filed numerous objections to the report and recommendation.

Following review of the magistrate's report and recommendation, Judge Edmund A. Sargus, Jr., of the United State District Court, Southern District of Ohio, Eastern Division, adopted the magistrate's decision as written. The court addressed and overruled DORC's objections, finding no constitutional problems with RLUIPA. The court left unaddressed whether RLUIPA was constitutional under Congress' Commerce Clause powers. See: Gerhardt v. Lazaroff, 221 F.Supp.2d 829 (SD OH 2002).

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Related legal case

Gerhardt v. Lazaroff

John W. Gerhardt, Plaintiff, v. Alan Lazaroff, et al., Defendants, and Lee Hampton, et al., Plaintiffs, v. Reginald Wilkinson, et al., Defendants, and John Miller, et al., Plaintiffs, v. Reginald Wilkinson, et al., Defendants.

Case No. C2-95-517, Case No. C2-97-382, Case No. C2-98-275


221 F. Supp. 2d 827; 2002 U.S. Dist. LEXIS 16205

February 25, 2002, Decided

February 25, 2002, Filed

PRIOR HISTORY: Gerhardt v. Lazaroff, 2001 U.S. Dist. LEXIS 24489 (S.D. Ohio Aug. 27, 2001).

DISPOSITION: [**1] Objections to Magistrate Judge's Report and Recommendation overruled and Report and Recommendation adopted. Defendants' motion to dismiss denied with exception that plaintiffs' claims asserted directly under Ohio Constitution dismissed.

COUNSEL: David Alan Goldberger, Ohio State University College of Law, Columbus, OH, for plaintiffs (C2-98-275).

Todd Robert Marti, Ohio Attorney General's Office, Columbus, OH, for defendants (C2-98-275).

JUDGES: Edmund A. Sargus Jr., United States District Judge. MAGISTRATE JUDGE KEMP. JUDGE GRAHAM.

OPINIONBY: Edmund A. Sargus Jr.

OPINION: [*829]


These three cases, one pending before the undersigned Judge, one pending before Judge James L. Graham, and one pending before Magistrate Judge Terence P. Kemp, have been consolidated for the purpose of issuing a single ruling on defendants' motion to dismiss. The sole issue raised by the motion is the constitutionality of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § § 2000cc et seq.

In a Report and Recommendation filed on August 27, 2001, Magistrate Judge Kemp, to whom the motion had been referred for an initial decision pursuant to 28 U.S.C. § 636(b), [**2] recommended that the defendants' motion be denied, with the exception of that portion directed to plaintiffs' claims under the Ohio Constitution. Defendants objected to that recommendation, continuing to argue that RLUIPA was not a constitutional exercise of Congress' power under either the Spending Clause or the Commerce Clause. All of the plaintiffs, including the United States, which intervened in order to defend the constitutionality of RLUIPA, filed responses to the objections, and the defendants filed a reply. For the following reasons, the objections will be overruled and defendants' motion for partial dismissal will be denied with the exception of that portion directed to plaintiffs' claims under the Ohio Constitution.


The facts of this case are essentially those set forth in the Magistrate Judge's Report and Recommendation. Because, for the most part, defendants' challenge is a legal challenge and not dependent upon the facts of any particular case, a lengthy recitation of the facts is unnecessary. [*830] However, as more fully discussed below, there are certain facts which the defendants assert have been established for purposes of the Court's ruling and which, they claim, [**3] were overlooked or improperly disregarded by the Magistrate Judge. The Court will comment on those factual issues in the context of discussing the legal objections which defendants have raised.

Otherwise, the facts are relatively straightforward. Each of the plaintiffs claims to have been denied the right to practice his religion in the prison setting due to what plaintiffs assert are unwarranted concerns about security or unjustified assumptions about the relationship between plaintiffs' chosen religion and prison gang activity, primarily White Supremacy gangs. Although plaintiffs originally contended that their constitutional rights were being violated under the Turner v. Safley standard, see Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), after RLUIPA was enacted, they contended that the more restrictive standards set forth in that statute applied to the state's actions. The State of Ohio then sought a ruling from the court that RLUIPA is unconstitutional.


Defendants challenged RLUIPA on grounds that its enactment exceeded Congress' powers under either the Spending Clause or the Commerce Clause of the United States Constitution. [**4] The Magistrate Judge determined that the Spending Power provided adequate support for the enactment of RLUIPA, and consequently did not reach the Commerce Clause issue. Defendants argued both that the Magistrate Judge's conclusions with respect to the Spending Clause are erroneous, and that the Magistrate Judge erred in refusing to reach the arguments relating to the Commerce Clause. For the following reasons, the Court finds each of defendants' objections to be without merit.

Defendants first argue that a statute such as RLUIPA which imposes a "least restrictive means" test on the actions of prison officials is too vague to be enforceable in the prison setting. Defendants argue that, although this test governs the actions of a state when dealing with private citizens' First Amendment concerns, it not only has the potential to lead to judicial second-guessing in the prison setting, but has, when applied in the past, produced judicial decisions diametrically opposed to each other, thus leaving prison officials without sufficient guidance to determine how to implement RLUIPA's requirements.

The short answer to defendants' arguments is that any statute which contemplates judicial review [**5] under a standard which is not susceptible to mechanical and precise definition has the potential to lead to conflicting judicial decisions on similar sets of facts. This potential result is not fatal to the enforceability of the statute. The Court further believes that defendants' continued reliance on Turner v. Safley, supra, is unavailing. In Turner, the Supreme Court was interpreting a provision of the Constitution. In doing so, it weighed the constitutional rights of inmates against the realities of the prison setting. Although the Court did not conclude that the First Amendment required imposition of a "least restrictive means" test, Congress, in enacting RLUIPA, has decreed otherwise with respect to a narrow class of First Amendment claims. Once Congress makes that decision, it is the Court's duty to implement it unless the statute exceeds Congress' power or is otherwise unconstitutional. The fact that the Supreme Court did not impose such a high standard absent a congressional directive to do so is, by itself, not persuasive on the issue of whether Congress had the power to impose a higher standard if it so chose.

[*831] Defendants make several arguments which, [**6] they claim, should have been resolved by the Magistrate Judge on the basis of their "uncontroverted" affidavits. They contend that, as a factual matter, (1) there is an inadequate relationship between the federal funds provided and the purposes of RLUIPA; (2) that any such relationship is not proportional to the amount of federal funds utilized in the prison programs in Ohio; and (3) that the enforcement of RLUIPA in the prison setting will necessarily involve burdening other inmates by placing them at a greater risk of physical harm because RLUIPA will prevent prison officials from restricting activities of other prisoners which pose legitimate security threats. In response, plaintiffs argue primarily that these are all matters of "legislative" fact and that defendants in an individual case may not, by entering affidavits into the record, compel the Court to reach the conclusion that, for example, to enforce RLUIPA would necessarily burden other inmates. That is a judgment, according to plaintiffs, which Congress is free to make and which the Court may overturn only if it is irrational.

The Court agrees with plaintiffs on this issue. For the most part, defendants have raised a facial [**7] challenge to RLUIPA's constitutionality, and have not contended that under the facts of any of the specific cases pending before the Court, applying RLUIPA would produce unconstitutional results. When evaluating a facial challenge to a statute, the Court must be careful not to allow the legislative findings underlying enactment of the statute to be "trumped by the fact finding apparatus of a single court." Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996), reaffirmed 101 F.3d 325 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997). Beyond that fundamental point, however, the Court is persuaded that the United States has demonstrated an adequate relationship between the purpose of the federal funds and the purposes of RLUIPA, and that the four-part test set forth in South Dakota v. Dole, 483 U.S. 203, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987) has been satisfied here.

Defendants' reliance on FCC v. League of Women Voters, 468 U.S. 364, 399-400, 82 L. Ed. 2d 278, 104 S. Ct. 3106 (1984) for its proportionality argument is [**8] also misplaced. Importantly, that case involved a Congressional enactment which, if validated, would have restricted the First Amendment free speech rights of the recipients of federal funds. In the context of a First Amendment challenge, the Court held that there must be a substantial relationship between the purpose of the funding and the interests sought to be advanced by the First Amendment restrictions. Otherwise, Congress could simply not "justify the substantial abridgment of important journalistic freedoms which the First Amendment jealously protects." Id. at 402. By contrast, Congress passed RLUIPA to enlarge rather than restrict the free exercise of religion, and the First Amendment concerns identified in League of Women Voters are not present here. Further, the radio stations at issue in that case were prohibited from spinning off affiliates to carry on the work which Congress had prohibited, so that it was impossible for them to carry out their free speech activities by segregating the Congressional funds from the entity which performed those activities.

As the plaintiffs contend, the state has, among other things, the recourse simply to choose not [**9] to accept federal funding. If the funding is, as defendants assert, a de minimis portion of the state prison budget, then Ohio has more incentive to forego federal funding of its prisons. Should it do so, the State would not be subject to [*832] RLUIPA under a Spending Clause theory. Since Ohio has continued to accept federal funds after RLUIPA's enactment, however, it has clearly not chosen this alternative.

Defendant's other primary argument is that RLUIPA constitutes governmental endorsement of religion. The Court adopts the Report and Recommendation's conclusion that the government's decision to lift burdens on the free exercise of religion is not tantamount to government endorsement of either a particular religion or religion in general. The Supreme Court has specifically upheld government enactments in the free exercise area which allow religion to be exercised in a manner which the First Amendment does not compel, and those enactments have been upheld as a valid exercise of Congress' power in this area. Government action which operates to accommodate the exercise of religion is not tantamount, by itself, to an unconstitutional endorsement of religion. Corporation of the Presiding Bishop of the Church of Latter-Day Saints v. Amos, 483 U.S. 327, 337, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987). [**10]

Finally, the Court agrees with the Magistrate Judge that there was no need to reach the Commerce Clause issue in this case. It is a sound exercise of judicial discretion not to decide issues which are unnecessary to the outcome of the case. Because RLUIPA can be sustained on either of the two grounds advanced by the plaintiffs and the Court has found one of those grounds to be sufficient, any decision on the Commerce Clause issue would be an advisory opinion. Although the possibility exists that the Court of Appeals would disagree with this Court's analysis of the Spending Clause issue and might therefore be required to reach the Commerce Clause argument, that is not a justification for deciding a difficult constitutional issue when that decision is unnecessary to permit the case to proceed.


Based upon the foregoing, the objections to the Magistrate Judge's Report and Recommendation are OVERRULED and the Report and Recommendation is ADOPTED. The defendants' motion to dismiss is DENIED with the exception that plaintiffs' claims asserted directly under the Ohio Constitution are DISMISSED. Case No. C-2-97-382 is returned to Judge Graham for further proceedings. Case No. C-2-95-517 will, [**11] unless objections are filed within ten days, be returned to Magistrate Judge Kemp for further proceedings on the assumption that the only issue which the non-consenting party, the United States, intended to argue was the constitutionality of RLUIPA, and that the parties do not have further objections to that case proceeding to adjudication on the merits before Magistrate Judge Kemp.


Edmund A. Sargus Jr.

United States District Judge