Cutter and the Preferred Position of the Free Exercise Clause

Authors

Steven Goldberg, Georgetown University Law CenterFollow

Document Type

Article

Publication Date

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.

Publication Citation

14 Wm. & Mary Bill Rts. J. 1403-1419 (2006)

Scholarly Commons Citation

Goldberg, Steven, "Cutter and the Preferred Position of the Free Exercise Clause" (2006). Georgetown Law Faculty Publications and Other Works. 398.
https://scholarship.law.georgetown.edu/facpub/398