The Establishment Clause of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion." U.S. CONST. Amend. I. Although some members of the Court have recently expressed their discontent with the three-part test contained in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), it remains the current standard by which to determine whether a statute violates the Establishment Clause. Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000); American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board, 243 F.3d 289 (6th Cir.2001). To pass constitutional muster, the statute in question (1) must have a secular legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; and (3) the statute must not foster an "excessive government entanglement" with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105; Capitol Square Review, 243 F.3d at 306. Defendants, citing to Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985) and Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), contend that RLUIPA fails the second prong of this test because it constitutes an impermissible government endorsement of religion and would also impermissibly burden third parties such as prison staff or other inmates.

In the Court's view, defendants' Lemon argument is completely foreclosed by Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). Amos also involved an Establishment Clause challenge to a federal statute--in that case, 42 U.S.C. § 2000e-1, § 702 of Title VII of the Civil Rights Act of 1964--which exempts religious organizations from Title VII's prohibition against discrimination in employment on the basis of religion. The district court had concluded that the exemption had the primary effect of advancing religion, thus running afoul of the second prong of the Lemon test. In so concluding, the district court found it significant that only religious organizations obtained a benefit from the operation of the statutory exemption, and that it "burden[ed] the free exercise rights of employees of religious organizations who work in nonreligious jobs." Id. at 333, 107 S.Ct. 2862.

The Supreme Court unanimously reversed the district court, specifically rejecting its reasoning about the effects of § 702. In so doing, it held, first, that governments may, in their effort to accommodate religion, go beyond what is minimally required of them by the Free Exercise Clause without running afoul of the Establishment Clause. Id. at 334-35, 107 S.Ct. 2862. Second, it noted that government is permitted, under Lemon, "to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions" so long as the government does not *847 "abandon[ ] neutrality and act[ ] with the intent of promoting a particular point of view in religious matters." Id. at 335, 107 S.Ct. 2862. The Court rejected the notion that any law which makes it easier for a religion to carry out its mission is unconstitutional, noting that "religious groups have been better able to advance their purposes on account of many laws that have passed constitutional muster," such as laws which provide tax exemptions to religious organizations or which permit school supplies to be loaned to students attending parochial schools. Id. at 336, 107 S.Ct. 2862. What is prohibited is the "government itself ... advanc [ing] religion through its own activities and influence." Id. at 337, 107 S.Ct. 2862. Finally, the Court rejected the notion that a law which singles out religions for the benefit it confers is per se unconstitutional. If that were so, any law designed to minimize the burdens otherwise placed on religion by governmental regulation would fail. As the Court concluded, "[w]here ... government acts with the proper 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." Id. at 338, 107 S.Ct. 2862.

Somewhat surprisingly, defendants' initial memorandum does not even cite to Amos, let along attempt to distinguish it. Defendants' Memorandum, at 42- 44. In their reply memorandum, defendants offer two bases for distinguishing Amos from the facts of this case: (1) that the statutory exemption at issue in Amos "did not give the beneficiaries anything they did not already have before Congress initially legislated in the area," id. at 32, and (2) that the effect of § 702 was simply to "[withdraw] the sovereign from the dispute between the beneficiary and the third party [i.e. the affected employee]" as opposed to having the government "[weigh] in on behalf of religious beneficiaries in their disputes with third parties." Id. at 34. They continue to rely on Calder and Texas Monthly as countervailing authority, noting that they do not disagree with the fundamental principle, recognized in Amos, that the government may lawfully provide additional accommodations for religious practices not mandated by the Free Exercise Clause, but contending that these accommodations are not permissible if they impose burdens on third parties as a result. Id. at 29-30. The specific burdens that defendants point to are the lessening of protection for prison staff and other inmates that, in their view, will necessarily result from increased accommodation of prisoners' religious practices.

It is true that the statutory scheme involved in Amos first imposed a restriction on the ability of all private employers, including religious organizations, to discriminate on the basis of religion, and then exempted religious organizations from that restriction, thus restoring them to the same status they enjoyed prior to the enactment of Title VII. Laws providing for tax exemptions fall into the same category. However, the same cannot be said for the statute at issue in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), which conferred upon parochial school children the right to receive loaned textbooks free of charge, a right they did not enjoy prior to the passage of the statute, and certainly not one conferred upon them by the Constitution. Allen was cited by Amos with approval as an example of a law that both assisted a religious organization in carrying out its religious mission and which passed constitutional muster under the Lemon test. Amos, 483 U.S. at 336-37, 107 S.Ct. 2862. In short, defendants have attempted to graft onto the Lemon test an additional requirement that government may not legislate to provide any accommodations to religion unless those accommodations are *848 either constitutionally mandated by the Free Exercise Clause or take the form of exemptions from laws of general application that impose a burden on the free exercise of religion, even if that burden could be constitutionally imposed. Not surprisingly, there is no authority to support this additional requirement, and Amos cannot be properly distinguished from this case on that ground.

Texas Monthly and Caldor provide no support for defendants' position. Defendants cited Texas Monthly for the proposition that "an endorsement [of religion] occurs if government provides a benefit to religious adherents that is not necessary to avoid a Free Exercise violation and that benefits imposes burdens on third parties." Defendants' Memorandum, at 42. In fact, Texas Monthly dealt with the vastly different issue of government subsidies to religion, Texas Monthly, 489 U.S. at 15, 109 S.Ct. 890 (Brennan, J.), and specifically rejected Texas' argument that its tax subsidy for religious publications was sustainable on grounds that it was reasonably necessary to accommodate the free exercise of religion. Id. at 18 & n. 8, 109 S.Ct. 890. Justice Brennan, speaking for only three members of the Court, did indicate, in dictum, that even reasonable accommodations of free exercise such as the one approved by the Court in Amos might fail if they imposed monetary costs or other substantial burdens on third parties in the form of an increased tax burden. Id.; see also Children's Healthcare is a Legal Duty, Inc. v. MinDe Parle, 212 F.3d 1084 (8th Cir.2000), cert. denied, 532 U.S. 957, 121 S.Ct. 1483, 149 L.Ed.2d 372 (2001). However, defendants have not cited a single case in which such a law has been held unconstitutional on that ground.

Caldor, which is cited by defendants as such a case (and also referred to as a "unanimous opinion," Defendants' Reply, at 30, even though Justice Rehnquist dissented), actually held that the statute at issue there, which allowed any employee to choose not to work on his or her designated Sabbath, violated the Establishment Clause because it had "the primary effect [of] impermissibly advanc[ing] a particular religious practice." Caldor, 472 U.S. at 710, 105 S.Ct. 2914. Moreover, it did so without regard to the consequences to persons who did not benefit from the statute's protection. However, to the extent that Caldor considered the burden imposed upon third parties as a factor in determining whether the statute impermissibly advanced a particular religious practice, it is easily distinguished from this case.

In Caldor, the right granted to persons whose religion included a Sabbath (and, of course, that is not a universal religious observance) was made absolute, and no countervailing interests of employees or co-workers were permitted to outweigh it. If RLUIPA commanded the states to accommodate any bona fide religious practice of institutionalized persons without regard to considerations of prison security, it would suffer from a similar defect. However, RLUIPA specifically permits safety and security--which are undisputedly compelling state interests--to outweigh an inmate's claim to a religious accommodation so long as there is a sufficient nexus between that interest and the denial of the requested accommodation, and there is no reasonable alternative to denial that would accommodate both the free exercise of religion and the need to maintain order in the prison environment. Although defendants, citing to their experience under RFRA, contend that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates, the Court does not believe it is appropriate to make such a factual finding on this record. Further, it seems unlikely that one court *849 could strike down an entire statute on constitutional grounds simply because one state claims to have had difficulty meeting the requirements of a similar statute in the past. At a minimum, Caldor would seem to suggest that the constitutional infirmity of a statute like RLUIPA would flow from consequences that are evident or on the face of the statute and which, due to the absolute nature of the statute's requirements, cannot be avoided by any amount of statutory interpretation. Where, as here, it is an open question as to the extent of the burdens (if any) RLUIPA will necessarily place on third parties such as other inmates or taxpayers, and where the courts will be given the chance to interpret RLUIPA's requirements in order to avoid placing unconstitutional burdens on others in order to accommodate the free exercise of religion, the statute will withstand the kind of challenge that defendants raise. Additionally, it is worth noting that although no other federal court has decided whether RLUIPA violates the Establishment Clause, every circuit court considering a similar challenge under the comparable provisions of RFRA found that it did not and does not violate the Establishment Clause. See Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir.1997); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir.1996); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir.1996); EEOC v. Catholic Univ., 83 F.3d 455, 470 (D.C.Cir.1996).

Finally, Defendants argue that RLUIPA violates an overarching principle of Spending Clause constitutional jurisprudence, namely that the pressure exerted on the states to accept the conditions placed on the grants rises to the level of coercion. See, e.g., Dole, 483 U.S. at 211, 107 S.Ct. 2793; Steward Machine Co. v. Davis, 301 U.S. at 590, 57 S.Ct. 883. Although the case law discussing this aspect of the Spending Clause provides little guidance, the Court notes that the federal funds at issue in this case, even if withheld in their entirety, constitute less than 1% of the entire budget of the ODRC. See Defendants' Memorandum at 20. While the Court has no doubt that these funds would be missed, the fact remains that the potential loss of this relatively small amount of the funding by the States does not cross the generalized line established by the prior cases and turn enticement into compulsion. See generally, Dole, 483 U.S. at 211, 107 S.Ct. 2793 (loss of 5% of federal highway funds not coercive); Steward Machine Co. v. Davis, 301 U.S. at 590, 57 S.Ct. 883. Here, as in Dole, "Congress has offered relatively mild encouragement to the States" to achieve a desired objective. Dole, 483 U.S. at 211, 107 S.Ct. 2793. The guiding principle established by the Supreme Court in Steward Machine Co. almost sixty years ago still holds true today:
[E]very rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems.
Id., 301 U.S. at 589-590, 57 S.Ct. 883. This Court will not conclude, on the facts before it, that the Defendants would be forced to surrender their position as co-equal sovereigns in the federal system as a result of the conditions expressed in RLUIPA. See New York, 505 U.S. at 167, 188, 112 S.Ct. 2408. Accordingly, after considering all of defendants' contentions, the Court finds RLUIPA to be a proper exercise of Congressional power pursuant to the Spending Clause.

*850 IV.
Defendants maintain that regardless of whether RLIUPA is deemed to be a constitutional exercise of Congress' power, the Tenth Amendment and the Eleventh Amendment provide the state with immunity. These issues do not require extended discussion.

A. Tenth Amendment Immunity
The Tenth Amendment to the United States Constitution provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This provision has long been interpreted by the Court to ensure that the federal government remains one of "limited powers," Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), determining "what powers in fact have been given [to it] by the people." United States v. Butler, 297 U.S. 1, 63, 56 S.Ct. 312, 80 L.Ed. 477 (1936).

First, the Court has already held that RLUIPA is a constitutional exercise of the Spending Power. The Supreme Court conclusively held in Dole that the Tenth Amendment stands as no independent constitutional bar to such legislation. Id., 483 U.S. at 210-11, 107 S.Ct. 2793. Accordingly, Defendants' Tenth Amendment argument necessarily fails. Defendants seek, however, to extend the reach of a number of relatively recent Supreme Court decisions, including Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), and Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), to establish a new type of Tenth Amendment immunity constituting a "structural immunity from suit that extends beyond the Eleventh Amendment." Defendants' Memorandum, at 52. Defendants' are correct that the scope of the state's sovereign immunity "neither derives from nor is limited by the terms of the Eleventh Amendment." Alden, 527 U.S. at 713, 119 S.Ct. 2240. However, Alden simply held that the Constitution did not give Congress the power to waive a state's sovereign immunity from suit in its own courts. In Alden, the legislature at issue was not passed pursuant to any Congressional power to affect the states' sovereign immunity under the Eleventh Amendment or otherwise. Alden did not affect the Court's holdings in other cases that the determination of whether a particular statute violates the Tenth Amendment is necessarily a determination of whether Congress was within its enumerated powers in passing the contested legislation:
Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers Engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment. The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.
New York, 505 U.S. at 156-157, 112 S.Ct. 2408. Because Congress acted constitutionally under the Spending Clause in passing RLUIPA, Ohio's Tenth Amendment *851 rights necessarily have not been violated.

B. Eleventh Amendment Immunity
The Eleventh Amendment provides that "[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. Amend. XI. Although the text of the Amendment creates no immunity against citizens attempting to sue their own state, it has long been settled that the Amendment, representing the concept of states as co-equal sovereigns with the federal system bars such suits. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)("For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting states was not contemplated by the Constitution when contemplating the judicial power of the United States.")(internal citations and quotation marks omitted); see also Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Furthermore, suits which raise civil claims against state officials for actions committed while serving in their official capacity but are, in essence, a claim against the state are barred by the Eleventh Amendment. See Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 462-464, 65 S.Ct. 347, 89 L.Ed. 389 (1945)(holding that when action is essentially one for recovery of money from the state, even though individual officers are nominal defendants, the state is the real, substantial party in interest and entitled to sovereign immunity under the Eleventh Amendment).

Although Congress has the power to abrogate a state's Eleventh Amendment immunity pursuant to Section 5 of the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), in Seminole Tribe, the Court expressly overruled contrary precedent (Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989)) and firmly established that Congress may not abrogate state sovereign immunity under any of its Article I powers. See Seminole, 517 U.S. at 72-73, 116 S.Ct. 1114; see also Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 636, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). Defendants claim that because Congress purported to pass RLUIPA pursuant to its Commerce Clause powers and because neither the State of Ohio nor the ODRC waived its Eleventh Amendment immunity, Defendants are immune from suit under RLUIPA. Here, the Court has held that RLUIPA was validly enacted pursuant to Congress' Spending Clause powers. In accepting the terms of the federal grants, Defendants necessarily accepted all of the conditions Congress established for funds eligibility. While the Court in Florida Prepaid may have found the doctrine of constructive waiver inapplicable in the Commerce Clause context, they did not find the Spending Clause powers so limited:
[W]e have held in such cases as South Dakota v. Dole that Congress may, in the exercise of its spending power, condition the grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions. These cases seem to us fundamentally different from the present one.
Id., 527 U.S. at 686, 119 S.Ct. 2219 (emphasis added)(internal citations omitted). As a result, the state's acceptance of the terms pursuant to the Spending Clause necessarily establishes its acquiescence to § 2(a) of the Act, providing that "[a] person may assert a violation of this chapter as a claim or defense in a judicial proceeding *852 and obtain appropriate relief against a government," where the term "government" includes a state, its departments, or its officials. 42 U.S.C. § 2000cc-5(4)(A).

Even had the defendants not consented to suit under the Act, the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) remains good law in providing that plaintiffs, as here, may bring a suit against a state official seeking prospective injunctive or declaratory relief to conform their behavior to comply with federal law without running afoul of the Eleventh Amendment. See Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). Despite Defendants' insistence to the contrary, RLUIPA is valid federal law, and Ex parte Young serves to insure that Plaintiffs can maintain an action against defendants to enforce compliance with the statute.

Defendants also contend that this is a case like Coeur d'Alene, so that a suit under RLUIPA which proceeds on an Ex Parte Young theory would violate the Eleventh Amendment. In Coeur d'Alene, an Indian tribe filed suit in federal court seeking to validate its claim of ownership to lands submerged under Lake Coeur d'Alene and certain surrounding rivers and streams. The Court held that the suit was the functional equivalent of an action to quiet title, which the Eleventh Amendment clearly prohibited, and that the state's interest in possession and control over property lying within its boundaries was sufficiently strong to justify recognition of a unique sovereign interest inconsistent with the application of the Ex Parte Young exception. See Coeur d'Alene, 521 U.S. at 286-288, 117 S.Ct. 2028; Ford Motor Company v. Department of Treasury of Ind., 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945).

Defendants claim that the same principle should apply to suits brought under RLUIPA because the relief available to prisoners--changing the way the state administers the religious exercise portion of its prison programs--is "the functional equivalent of relief that could not be obtained directly against the state under the Eleventh Amendment," Defendants' Memorandum, at 50, or because RLUIPA is a statute of "dubious constitutionality" and therefore represents a unique intrusion into the traditional state function of running a prison. Defendants' Reply, at 38. The Court has rejected the latter contention, and in any event is unaware of any decisions suggesting that the application of Ex Parte Young depends upon whether the underlying federal statutory right to be enforced is one whose constitutionality may fairly be subject to debate. As to the former contention, the Eleventh Amendment clearly does not now prohibit prisoners from utilizing Ex Parte Young to obtain accommodations for their religious practices. The only difference is that the courts have judged the states' policies under the more deferential Turner standard. However, a decision favoring a prisoner in such a case still may require a prison to "rewrite" its policies, the very relief which defendants contend is unavailable under the Eleventh Amendment. Additionally, this is not a case like ANR Pipeline v. Lafaver, 150 F.3d 1178 (10th Cir.1998), where Congress itself had, through the Tax Injunction Act, expressly recognized the states' sovereign interest in assessing and collecting taxes without significant federal interference. RLUIPA is an obvious Congressional determination that the states do not have an interest in regulating the religious exercise of institutional persons that cuts to the very core of state sovereignty, and this Court is not persuaded that it should so hold.

V.
Based on the foregoing, it is recommended that the Court find RLUIPA, 42 U.S.C. § § 2000cc et seq., to be a constitutional *853 exercise of Congress' Spending Power. Furthermore, it is recommended that the Court find that neither the Tenth nor Eleventh Amendments provide the defendants with immunity from RLUIPA's provisions. Consequently, it is recommended that defendants' motion to dismiss, with the exception of that portion directed to plaintiffs' claims under the Ohio Constitution, be denied.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

Aug. 27, 2001.

221 F.Supp.2d 827

END OF DOCUMENT