Saturday, December 30, 2006

Fourth Circuit and RLUIPA

Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."

In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.

On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."

On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.

This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.

In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.

Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.

In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."

Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."

Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.

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