On March 21, two professors from Ohio State University — one of whom is on leave and serving as the State Solicitor for Ohio — will square off before the U.S. Supreme Court in a religious freedom case brought by convicts that has deep ramifications far beyond prison walls.
The case is captioned Cutter v. Wilkinson, 03-9877, and it seeks to clear up a controversy among the various federal circuits about whether the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc, is constitutional as it applies to prisoners in state penitentiaries.
(Full disclosure: I am employed by the State of Ohio in an agency that connects me, albeit vicariously, with the respondents in this case. The opinions on this website are my own and do not reflect those of my employer or the State of Ohio).
Most of the attention is on whether the High Court will agree with Congress, which passed RLUIPA in 2000, that “no government shall impose a substantial burden on the religious exercise of a person residing or confined to an institution” unless the burden “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering that interest.”
To constitutional scholars, this requirement — compelling government interest and least restrictive means — is called strict scrutiny test and is reserved for judging the constitutionality of laws that affect the most precious American rights.
Many others — particularly those in corrections and anti-gang law enforcement — are watching the case for more practical reasons.
Prior to the passage of RLUIPA, restrictions imposed by prison officials upon inmates’ fundamental rights were subject to a rational-relationship review, which requires courts to consider: (1) whether there is a “valid, rational connection” between the prison regulation and a legitimate government interest; (2) whether inmates have alternative means of exercising the right in question; (3) the impact of a requested accommodation of the right upon guards and other inmates; and (4) the absence of alternatives to the regulation.
Now, under RLUIPA, prison regulations that substantially burden religious belief, including those that are generally applicable and facially neutral, are judged under a strict scrutiny standard, requiring prison officials, rather than the inmate, to bear the burden of proof that the regulation furthers a compelling penological interest and is the least restrictive means of satisfying this interest.
If you think this is simply an academic exercise over whether Satanic inmates can worship according to their belief, think again. The primary effect of RLUIPA is not simply to accommodate the exercise of religion by individual prisoners, but to advance religion generally by giving religious prisoners rights superior to those of nonreligious prisoners.
Even the greenest punk con knows what that means. “When inmates see that the rules do not apply with the same force to the religious as to the agnostic or atheist,…non-religious prisoners will know what they have to do so that they, too, can benefit from the softer rules: become religious. Considering the meager resources and opportunities available to them inside prison walls, the compulsion to become religious–created by government–will indeed be strong.” Kilaab Al Ghashiyah (Khan) v. Dep’t of Corrections, 250 F. Supp. 2d 1016 (E.D. Wis. 2003).
Another court gave a hypothetical example that demonstrates why the RLUIPA is dangerous:

Assume, for example, that a prison official confiscates white supremacist literature held by two different inmates. One inmate is a member of the Aryan Nation solely because of his fanatical belief that a secret Jewish conspiracy exists to control the world. The second inmate holds the white supremacist literature because he is a member of the Church of Jesus Christ Christian, Aryan Nation (”CJCC”). The non-religious inmate may challenge the confiscation as a violation of his rights to free expression and free association. A court would evaluate these claims under the deferential rational relationship test … placing a high burden of proof on the inmate and leaving the inmate with correspondingly dim prospects of success. However, the religious inmate, as a member of the CJCC, may assert a RLUIPA claim, arguing that the confiscation places a substantial burden on his religious exercise. The religious white supremacist now has a much better chance of success than the non-religious white supremacist, as prison officials bear the burden of proving that the prison policy satisfies a compelling interest and is the least restrictive means of satisfying the interest. The difference in the level of protection provided to each claim lies not in the relative merits of the claims, but lies instead in the basis of one claim in religious belief. Madison v. Riter, 240 F. Supp. 2d 566 (W.D. Va. 2003)

As we can see, if the cons call it a religion, it makes it harder for corrections officials to control.
Prison gangs are bad enough already. They don’t need First Amendment protection.