Opinion
No. 2:00-cv-075 and No. 1:01-cv-515
April 16, 2002
REPORT AND RECOMMENDATION
Plaintiffs filed this lawsuit after the Michigan Department of Corrections (MDOC) classified the Melanic Islamic Palace of the Rising Sun (Melanic) and its prisoner members as a security threat group (STG). The defendants required members of the Melanic group to renounce membership or face a higher security classification, and to send out of the prison all Melanic materials including all literature. The defendants banned all Melanic materials from entering the prisons. Plaintiffs are the Melanic Islamic Palace of the Rising Sun, a non-profit religious corporation recognized in the State of Michigan, its president, Michael Jenkins, and prisoners Fingal Johnson, Vernon Pressley, Lacey J. Fondren, and Morris Martin. Plaintiffs name as defendants MDOC director Bill Martin, MDOC Security Threat Group Coordinator Robert Mulvaney, and MDOC Deputy Director Dan Bolden.
Defendants have moved for partial summary judgment arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, as it applies to institutionalized persons, is unconstitutional. The United States and the Becket Fund for Religious Liberty have intervened in this action. The interveners and the plaintiffs argue that the RLUIPA is constitutional. Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present "specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed.R.Civ.P. 56(e)). While the evidence must be viewed in the light most favorable to the nonmoving party, a mere scintilla of evidence in support of the nonmovant's position will be insufficient. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Ultimately, the court must determine whether there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).
Defendants argue that the RLUIPA is unconstitutional as it relates to institutionalized persons. The Act states:
Protection of religious exercise of institutionalized persons
(a) General rule
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person —
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application
This section applies in any case in which —
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.
Defendants argue that the RLUIPA is unconstitutional because it violates the Establishment Clause of the First Amendment. The Establishment Clause provides "Congress shall make no law respecting an establishment of religion. . . ." U.S. CONST. Amend. I. A statute is constitutional under the Establishment Clause where it (1) has a secular purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).
The Lemon factors were addressed in Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). In Amos the Supreme Court held that § 702 of the Civil Rights Act of 1964 as applied to secular nonprofit activities of religious organizations does not violate the Establishment Clause. The plaintiff worked for 16 years as a building engineer at a non-profit public gymnasium owned by the LDS church. Plaintiff's employment was terminated after he failed to obtain a certificate showing church membership and eligibility to attend the LDS temples. Plaintiff claimed that § 702 is unconstitutional because it allowed religious employers to discriminate on religious grounds in hiring employees for nonreligious jobs.
The Court, applying the Lemon factors, found that § 702 did not violate the Constitution. Section 702, the Court stated, is secular because "it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Id. at 335. The Justices agreed that the government itself did not advance religion through its own activities or influence by enacting § 702. Specifically, the Court concluded that any advancement of religion achieved through the gymnasium was not attributed to the government. Further, the Court noted that no serious argument could be made that the statute impermissibly entangles church and state because the statute fostered a more complete separation of the two.
Defendants argue that the RLUIPA clearly has a religious purpose because Congress intended to favor religion over all other aspects of prison life. The purpose of the RLUIPA is to protect the free exercise of religion from unnecessary governmental interference. A secular purpose "does not mean that the law's purpose must be unrelated to religion — that would amount to a requirement that the government show a callous indifference to religious groups, Zorach v. Clauson, 343 U.S. 306, 314 (1952), and the Establishment Clause has never been so interpreted." Amos, 483 U.S. at 335. Contrary to defendants' argument, a statute that relates to religion does not fail the first prong of the Lemon test. "[I]t is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Id. "[A] statute that is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion" passes the Lemon test. Id. at 339.
Defendants argue that RLUIPA clearly advances religion and that Congress intended to endorse religion when enacting the statute. "A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden `effects' under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence." Id. at 337. The RLUIPA does not promote a religious belief or message, but rather frees religious groups to practice their religious beliefs as they would have without unnecessary governmental regulations.
Further, as in Amos, the RLUIPA does not foster an excessive entanglement with religion. Contrary to defendants' contention, the statute does not entangle the church and state. Indeed, the statute does the opposite. It imposes a separation between church and state which prevents the government, in this case the MDOC, from interfering with religious beliefs.
Defendants argue that the RLUIPA, as it applies to institutionalized persons, is not a valid congressional exercise of power under Section 5 of the Fourteenth Amendment. However, defendants concede that there is no indication that Congress relied upon Section 5 of the Fourteenth Amendment in enacting the RLUIPA. Defendants are correct that Congress did not rely upon Section 5 when enacting 42 U.S.C. § 2000cc-1. It is clear that Congress enacted 42 U.S.C. § 2000cc-1 under the alternative powers found in the Spending Clause and the Commerce Clause. Accordingly, if the Act is proper under the Commerce Clause or the Spending Clause it is irrelevant whether authority supporting its enactment exists under Section 5 of the Fourteenth Amendment. Mayweathers v. Terhune, 2001 WL 804140, 8 (E.D. Cal July 2, 2001).
Defendants argue that Congress exceeded its power under the Commerce Clause in enacting the RLUIPA. The Constitution specifically grants to Congress the power to regulate commerce. Article I, Section 8, of the Constitution provides in part that Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes." The commerce power "is the power to regulate; that is to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." United States v. Lopez, 514 U.S. 549, 553 (1995), citing Gibbons v. Ogden, 22 U.S. 1, 196 (1824). Congress has the power to regulate three areas of commerce. First, Congress may regulate the use of the channels of interstate commerce. Lopez, 514 U.S. at 558. Second, Congress may regulate to protect the instrumentalities of interstate commerce, or persons or things involved in interstate commerce, even though the threat being regulated against arises from intrastate activities. Id. Finally, Congress may regulate activities which have a substantial effect on interstate commerce. Id. at 558-559.
42 U.S.C. § 2000cc-1 (b)(2) provides that the protections under (a)(1) apply when "the substantial burden affects, or removal of the substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes." The clear language of the statute provides that congressional power under the Commerce Clause is only exercised when a regulation directly affects interstate commerce. Mayweathers at 8, citing Lopez, 514 U.S. at 561 (1995). In Lopez the statute in question did not contain any language which would allow for a case-by-case analysis of whether the prohibited conduct affected interstate commerce. The Supreme Court stated "§ 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearms possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at 562.
In other words, as applied to the RLUIPA, if a governmental regulation imposing a substantial burden on religion has no effect on interstate commerce the protections under 2000cc-1(a) could not apply under the scope of (b)(2). Accordingly, the Commerce Clause power would not be implicated. The power under the Commerce Clause is only implicated when the regulation substantially affects interstate commerce. The Supreme Court has clearly indicated that a statute that contains a jurisdictional element that ensures, on a case-by-case basis, that the regulation in question has a sufficient connection with interstate commerce withstands a challenge under the Commerce Clause. See 514 U.S. at 561-562. The RLUIPA satisfies this concern.
Defendants argue that the omission of word "substantially" before "affect" in the statute invalidates Congress' reliance on the Commerce Clause. In Lopez the Supreme Court concluded that the proper test is whether the regulated activity "substantially affects" interstate commerce. Id. at 559. However, the Supreme Court stated that the criminal statute in question "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 561. The omission of "substantial" does not invalidate (b)(2) under the Commerce Clause. Jones v. United States, 529 U.S. 848, 854 (2000) ("[t]he statutory term `affecting . . . commerce' . . . when unqualified, signal Congress' intent to invoke its full authority under the Commerce Clause.")
Defendants contend that 42 U.S.C. § 2000cc-2 (g) improperly places the burden of establishing jurisdiction on the government instead of the complaining party. Defendants have misread section 2(g). That section states:
Limitation
If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.
Plaintiffs have the burden under § 2000cc-1(b)(2) of establishing that the governmental regulation affects interstate commerce. That burden is not shifted to the government by the language contained in § 2000cc-2(g). Section 2000cc-2(g) provides the government with an additional defense even where plaintiffs have satisfied the jurisdictional requirements under § 2000cc-1(b)(2). Defendants' claim that the RLUIPA violates the Commerce Clause based upon section 2(g) is unfounded.
Defendants argue that Congress exceeded its authority under the Spending Clause when enacting § 2000cc-(a). Section 2000cc-1(b)(1) states that the section applies where "the substantial burden is imposed in a program or activity that receives Federal financial assistance." The Spending Clause empowers Congress to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States." U.S. CONST. Art. I § 8 cl.1. The Supreme Court has made it clear that Congress has broad power to spend for the general welfare: "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by direct grants of legislative power found in the Constitution." United States v. Butler, 297 U.S. 1, 66 (1936). "Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." South Dakota v. Dole, 483 U.S. 203, 206 (1986), citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980), overruled on other grounds by Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 202 (1995). The Supreme Court noted that the spending power is limited by four factors. Id. at 207.
The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of "the general welfare." In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Second, we have required that if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." ("[T]he Federal Government may establish and impose reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof"). Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds.
Id. at 207-208 (citations and footnote omitted).
Defendants argue that the RLUIPA does not satisfy the third and fourth factors found in Dole. Defendants argue that although the MDOC does receive federal funding, the funding has no relation to religion. Defendants concede that the MDOC received $28,032,400 in federal funding for the fiscal year 2002. The third factor, referred to as the "relatedness factor," requires that the condition imposed be related to the federal interest, in particular national projections or programs. Id. Congress meets the relatedness factor where it ensures that its funds are not used to engage in conduct with which it disagrees. Lau v. Nichols, 414 U.S. 563 (1974). The Supreme Court held in Lau that the legislative requirement that schools receiving federal funding comply with Title VI of the Civil Rights Act was an appropriate Congressional use of the Spending Clause power. "Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination." Id. at 569.
Similarly, the RLUIPA seeks to ensure that federal funds are not used in any fashion to suppress religious freedoms. This purpose is similar to the purpose of those anti-discrimination statutes, such as Title VI, which condition federal funding to programs which do not encourage racial discrimination. Lau at 568-569. The RLUIPA's purpose is directly related to rehabilitation of prisoners through the exercise of religious programs. It cannot be contested that the exercise of religion at its most basic level provides some aspect of prisoner rehabilitation. Certainly, the connection between federal funding for state prisons and prisoner rehabilitation is as direct as the connection upheld in Lau between federal funding for schools and anti-discrimination, or as direct as the connection upheld in Dole between federal funding for highway construction and a minimum drinking age.
Defendants argue that the RLUIPA violates the fourth Dole factor. However, as previously discussed there is no violation under the Establishment Clause. Therefore, defendants' argument lacks merit.
Defendants argue that the RLUIPA fails under the Spending Clause because the government provided no guidance on how the MDOC should obey the statute. Contrary to defendants' assertion, Congress clearly and unambiguously conditioned federal funding on compliance with the RLUIPA. Defendants contend that the "least restrictive means" test contained in the statute is too indefinite to be a valid exercise of the Spending Clause. Defendants cite Pennhurst State School Hosp. v. Haldermann, 451 U.S. 1 (1981), as authority. In Pennhurst the Supreme Court concluded that Congress, in enacting the Developmentally Disabled Assistance and Bill of Rights Act, did not impose under its spending power any substantive rights to "appropriate treatment" in the "least restrictive" environment in favor of mentally retarded individuals. The Court explained that the power to legislate under the Spending Clause hinges on whether the State voluntarily and knowingly accepts the terms of the conditions imposed by the legislation. Id. at 17. "There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys it must do so unambiguously." Id. The Court concluded that the Act in question did not condition funding on any specific right described within the statute, and its provisions were not mandatory. Accordingly, because the State could not have known of any required "obligations" under the language of the Act, no substantive rights of "appropriate treatment" in the "least restrictive" environment were conferred to mentally retarded individuals. The court held that the statute was not enacted under Congress' spending power. Contrary to defendants' assertion, the Court did not hold that the statute in question was an invalid exercise of the Spending Clause power.
Indeed, the issue in Pennhurst was whether a private right of action could be enforced under the statute.
Nevertheless, in the opinion of the undersigned, defendants' argument fails. Unlike the Developmentally Disabled Assistance and Bill of Rights Act at issue in Pennhurst, the RLUIPA expressly states that it is applicable to "a program or activity that receives Federal financial assistance." The statute provides notice that recipients of federal funds could be held liable for imposing a substantial burden on the free exercise of religion by persons residing or confined within an institution. See Davis v. Monroe County Board of Ed., 526 U.S. 629, 638, 640-644 (1999) (Title IX language of "program or activity receiving Federal financial assistance" provided notice to recipients of federal funding that they could be liable for a third party's deliberate indifference to sex discrimination).
Defendants argue that the RLUIPA violates the Tenth Amendment. The Tenth Amendment 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." U.S. CONST. Amend. X. The limits of the Tenth Amendment are implicated only when Congress acts outside its constitutional power. New York v. United States, 505 U.S. 144, 156 (1992). "As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The RLUIPA was enacted appropriately under both the Commerce Clause and the Spending Clause. Therefore, in the opinion of the undersigned, the RLUIPA does not violate the Tenth Amendment.
Defendants argue that the Tenth Amendment is violated because the "RLUIPA targets only states and no one else and does so in a way that regulates them as regulators, crossing the borders guarded by the Tenth Amendment." The RLUIPA applies to not only states but all "governments" which necessarily includes in addition to states, counties, cities, townships, and other local governments.
Accordingly, it is recommended that defendants' motion for partial summary judgment (Docket #13, Case No. 1:01-cv-515) be denied.
NOTICE TO PARTIES: Objections to this Report and Recommendation must be served on opposing parties and filed with the Clerk of the Court within ten days of your receipt of this Report and Recommendation. 28 U.S.C. § 636 (b)(1)(C); Fed.R.Civ.P. 72(b); W.D. Mich. LCivR. 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal of those issues or claims addressed or resolved as a result of the Report and Recommendation. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).