When Money Is Tight, Is Strict Scrutiny Loose? Cost Sensitivity as a Compelling Governmental Interest under the Religious Land Use & Institutionalized Persons Act of 2000

Abstract:     
In this article, I demonstrate that a growing number of the lower federal courts are misinterpreting a key provision of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA); in doing so, the courts are permitting state governments to violate state prison inmates' First Amendment free exercise rights.

By way of background, RLUIPA calls for strict scrutiny review of prison regulations that burden inmates' religious exercise - such burdensome regulations must be the least restrictive means of furthering a compelling governmental interest. Generally, under the Supreme Court's strict scrutiny jurisprudence, a government's desire to spend less money is not a compelling governmental interest. A government cannot, say, discriminate on the basis of race simply because it might somehow be less expensive to do so. But a growing number of courts are holding just the opposite in RLUIPA cases, and are permitting state governments to violate inmate's free exercise rights when to do otherwise might cost the state money. My thesis is that this is an incorrect reading of RLUIPA and that such budgetary concerns are not a compelling governmental interest.

Number of Pages in PDF File: 33

Keywords: Religious Land Use & Institutionalized Persons Act of 2000, RLUIPA, RFRA, prison, free exercise, compelling governmental interest, religion

Accepted Paper Series