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Cutter and the Preferred Position of the Free Exercise Clause
Steven Goldberg, Georgetown Law
William & Mary Bill of Rights Journal v.14:1403 (2006)
Suggested Citation: Goldbeg, Steven., "Cutter and the Preferred Position of the Free Exercise Clause" . William & Mary Bill of Rights Journal v.14:1403 (2006)
ABSTRACT:
The Supreme Court’s unanimous decision in Cutter v. Wilkinson (2005) allowed Congress to give religious exercise a status superior to that given to free speech. In upholding RLUIPA, a statute protecting inmate religious freedom, the Court explicitly held that statutes can allow prisoners to “assemble for worship, but not for political rallies.” Religion, which lost in Smith (1990) the traditional “preferred position” courts have accorded First Amendment rights, can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not just regained parity with free speech, it now receives greater protection in the prison setting. This striking result can only be explained by the Free Exercise Clause. Described by leading scholars as “redundant,” the Clause now becomes an important source of Congressional power to accommodate religion.
SUGGESTED CITATION:
Steven Goldberg,
"Cutter and the Preferred Position of the Free Exercise Clause"
(October 17, 2006).
Georgetown Law.
Georgetown Law Faculty Working Papers.
Paper 10.
http://lsr.nellco.org/georgetown/fwps/papers/10
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