Cutter v. Wilkinson (p. 1901)

 Cutter deals with the application of RLUIPA in the context pf prison, a place in which prisoners are completely under the control of prison officials.

"Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 114 Stat. 804, provides in part: “No government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution,”
unless the burden furthers “a compelling governmental interest,” and does so by “the
least restrictive means.” (p. 1901)

Since this section of RLUIPA applies only if "the substantial burden is imposed in a program or activity that receives Federal financial assistance," it is within the federal spending power (i.e. it is a condition of receipt of federal funds). Which state prisons receive federal funds?

Does it violate the Establishment Clause because it advances religion by providing rights only to religious prisoners? Notice that not even Justice Ginsburg thinks so! In her unanimous opinion she says this: 

Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. . . . Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries . . . and they must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths. . . .
. . . Section 3 covers state-run institutions—mental hospitals, prisons, and the like—in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. . . . RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.

Be aware of RLUIPA if you practice either in the area of prisoners' rights or in the area of zoning of real property.