CUTTER et al. v. WILKINSON, DIRECTOR, OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al.

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709 OCTOBER TERM, 2004
Syllabus
CUTTER et al. v. WILKINSON, DIRECTOR, OHIO
DEPARTMENT OF REHABILITATION AND
CORRECTION, et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 03–9877. Argued March 21, 2005—Decided May 31, 2005
Section 3 of the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA or Act), 42 U. S. C. § 2000cc–1(a)(1)–(2), provides in part:
“No government shall impose a substantial burden on the religious exer-
cise 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.” Petitioners, current and former inmates
of Ohio state institutions, allege, inter alia, that respondent prison offi-
cials violated § 3 by failing to accommodate petitioners’ exercise of their
“nonmainstream” religions in a variety of ways. Respondents moved
to dismiss that claim, arguing, among other things, that § 3, on its face,
improperly advances religion in violation of the First Amendment’s
Establishment Clause. Rejecting that argument, the District Court
stated that RLUIPA permits safety and security—undisputedly compel-
ling state interests—to outweigh an inmate’s claim to a religious accom-
modation. On the thin record before it, the court could not find that
enforcement of RLUIPA, inevitably, would compromise prison security.
Reversing on interlocutory appeal, the Sixth Circuit held that § 3 imper-
missibly advances religion by giving greater protection to religious
rights than to other constitutionally protected rights, and suggested
that affording religious prisoners superior rights might encourage pris-
oners to become religious.
Held: Section 3 of RLUIPA, on its face, qualifies as a permissible accom-
modation that is not barred by the Establishment Clause. Pp. 719–726.
(a) Foremost, § 3 is compatible with the Establishment Clause be-
cause it alleviates exceptional government-created burdens on private
religious exercise. See, e. g., Board of Ed. of Kiryas Joel Village
School Dist. v. Grumet, 512 U. S. 687, 705. Furthermore, the Act on its
face does not founder on shoals the Court’s prior decisions have identi-
fied: Properly applying RLUIPA, courts must take adequate account of
the burdens a requested accommodation may impose on nonbeneficiar-
ies, see Estate of Thornton v. Caldor, Inc., 472 U. S. 703; and they must
be satisfied that the Act’s prescriptions are and will be administered
neutrally among different faiths, see Kiryas Joel, 512 U. S. 687. “[T]he

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710 CUTTER v. WILKINSON
Syllabus
‘exercise of religion’ often involves not only belief and profession but
the performance of . . . physical acts [such as] assembling with others
for a worship service [or] participating in sacramental use of bread and
wine . . . .” Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872, 877. Section 3 covers state-run institutions—
mental hospitals, prisons, and the like—in which the government ex-
erts a degree of control unparalleled in civilian society and severely dis-
abling to private religious exercise. 42 U. S. C. § 2000cc–1(a); § 1997.
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 reli-
gion. But the Act does not elevate accommodation of religious obser-
vances over an institution’s need to maintain order and safety. An ac-
commodation must be measured so that it does not override other
significant interests. See Caldor, 472 U. S., at 709–710. There is no
reason to believe that RLUIPA would not be applied in an appropriately
balanced way, with particular sensitivity to security concerns. While
the Act adopts a “compelling interest” standard, § 2000cc–1(a), “[c]ontext
matters” in the application of that standard, see Grutter v. Bollinger,
539 U. S. 306, 327. Lawmakers supporting RLUIPA were mindful of
the urgency of discipline, order, safety, and security in penal institutions
and anticipated that courts would apply the Act’s standard with due
deference to prison administrators’ experience and expertise. Finally,
RLUIPA does not differentiate among bona fide faiths. It confers no
privileged status on any particular religious sect. Cf. Kiryas Joel, 512
U. S., at 706. Pp. 719–724.
(b) The Sixth Circuit misread this Court’s precedents to require in-
validation of RLUIPA as impermissibly advancing religion by giving
greater protection to religious rights than to other constitutionally pro-
tected rights. Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U. S. 327, counsels otherwise.
There, in upholding against an Establishment Clause challenge a pro-
vision exempting religious organizations from the prohibition against
religion-based employment discrimination in Title VII of the Civil
Rights Act of 1964, the Court held that religious accommodations need
not “come packaged with benefits to secular entities.” Id., at 338.
Were the Court of Appeals’ view correct, all manner of religious accom-
modations would fall. For example, Ohio could not, as it now does,
accommodate traditionally recognized religions by providing chaplains
and allowing worship services. In upholding § 3, the Court emphasizes
that respondents have raised a facial challenge and have not contended
that applying RLUIPA would produce unconstitutional results in any
specific case. There is no reason to anticipate that abusive prisoner

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Syllabus
litigation will overburden state and local institutions. However, should
inmate requests for religious accommodations become excessive, impose
unjustified burdens on other institutionalized persons, or jeopardize an
institution’s effective functioning, the facility would be free to resist the
imposition. In that event, adjudication in as-applied challenges would
be in order. Pp. 724–726.
349 F. 3d 257, reversed and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court. Thomas,
J., filed a concurring opinion, post, p. 726.
David Goldberger argued the cause for petitioners. With
him on the briefs were Marc D. Stern and Benson A.
Wolman.
Acting Solicitor General Clement argued the cause for
the United States as respondent under this Court’s Rule 12.6
in support of petitioners. With him on the briefs were As-
sistant Attorney General Keisler, Patricia A. Millett, Mark
B. Stern, and Michael S. Raab.
Douglas R. Cole, State Solicitor of Ohio, argued the cause
for respondents. With him on the brief were Jim Petro, At-
torney General, Stephen P. Carney, Senior Deputy Solicitor,
and Todd R. Marti and Franklin E. Crawford, Assistant
Solicitors.*
*Briefs of amici curiae urging reversal were filed for the State of New
York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J.
Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General,
and Jean Lin and Benjamin N. Gutman, Assistant Solicitors General, and
by Christine O. Gregoire, Attorney General of Washington; for the Ameri-
can Correctional Chaplains Association et al. by Gene C. Schaerr; for
Americans United for Separation of Church and State et al. by David M.
Gossett, David C. Fathi, Ayesha N. Khan, Richard B. Katskee, Alex J.
Luchenitser, and Steven R. Shapiro; for the National Association of Evan-
gelicals et al. by Douglas Laycock and Nathan J. Diament; and for Sen.
Orrin G. Hatch et al. by Martin S. Lederman.
Briefs of amici curiae urging affirmance were filed for the Common-
wealth of Virginia et al. by Judith Williams Jagdmann, Attorney General
of Virginia, William E. Thro, State Solicitor General, Maureen Riley Mat-
sen, Deputy Attorney General, and Matthew M. Cobb, Carla R. Collins,
Eric A. Gregory, Joel C. Hoppe, Courtney M. Malveaux, Valerie L. Myers,

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712 CUTTER v. WILKINSON
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
Section 3 of the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA or Act), 114 Stat. 804, 42
U. S. C. § 2000cc–1(a)(1)–(2), provides in part: “No govern-
ment shall impose a substantial burden on the religious exer-
cise of a person residing in or confined to an institution,”
unless the burden furthers “a compelling governmental in-
terest,” and does so by “the least restrictive means.” Plain-
tiffs below, petitioners here, are current and former inmates
of institutions operated by the Ohio Department of Rehabili-
tation and Correction and assert that they are adherents of
“nonmainstream” religions: the Satanist, Wicca, and Asatru
religions, and the Church of Jesus Christ Christian.1 They
complain that Ohio prison officials (respondents here), in vio-
lation of RLUIPA, have failed to accommodate their reli-
gious exercise
A. Cameron O’Brion, Ronald N. Regnery, D. Mathias Roussy, Jr., and
William R. Sievers, Associate State Solicitors General, by Alva A. Swan,
Acting Attorney General of the Virgin Islands, and by the Attorneys Gen-
eral for their respective States as follows: Gregg D. Renkes of Alaska,
Lawrence G. Wasden of Idaho, Thomas J. Miller of Iowa, Jon Bruning of
Nebraska, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of
Oklahoma, and Darrell V. McGraw, Jr., of West Virginia; for the American
Jail Association et al. by Michael N. Beekhuizen and Michael H. Carpen-
ter; and for the Claremont Institute Center for Constitutional Jurispru-
dence by John C. Eastman and Edwin Meese III.
Briefs of amici curiae were filed for the Coalition for the Free Exercise
of Religion by Anthony R. Picarello, Jr., and K. Hollyn Hollman; for the
International Municipal Lawyers Association et al. by Marci A. Hamil-
ton; and for the Rutherford Institute by James J. Knicely and John W.
Whitehead.
1 Petitioners Cutter and Gerhardt are no longer in the custody of the
Ohio Department of Rehabilitation and Correction. Brief for Petitioners
2, n. 1. No party has suggested that this case has become moot, nor has
it: Without doubt, a live controversy remains among the still-incarcerated
petitioners, the United States, and respondents. We do not reach the
question whether the claims of Cutter and Gerhardt continue to present
an actual controversy. See Steffel v. Thompson, 415 U. S. 452, 459–460,
and n. 10 (1974).

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“in a variety of different ways, including retaliating and
discriminating against them for exercising their nontra-
ditional faiths, denying them access to religious litera-
ture, denying them the same opportunities for group
worship that are granted to adherents of mainstream
religions, forbidding them to adhere to the dress and
appearance mandates of their religions, withholding reli-
gious ceremonial items that are substantially identical
to those that the adherents of mainstream religions are
permitted, and failing to provide a chaplain trained in
their faith.” Brief for United States 5.
For purposes of this litigation at its current stage, respond-
ents have stipulated that petitioners are members of bona
fide religions and that they are sincere in their beliefs. Ger-
hardt v. Lazaroff, 221 F. Supp. 2d 827, 833 (SD Ohio 2002).
In response to petitioners’ complaints, respondent prison
o f f i c i a l s h a v e m o u n t e d a f a c i a l c h a l l e n g e t o t h e
institutionalized-persons provision of RLUIPA; respondents
contend, inter alia, that the Act improperly advances reli-
gion in violation of the First Amendment’s Establishment
Clause. The District Court denied respondents’ motion to
dismiss petitioners’ complaints, but the Court of Appeals re-
versed that determination. The appeals court held, as the
prison officials urged, that the portion of RLUIPA applicable
to institutionalized persons, 42 U. S. C. § 2000cc–1, violates
the Establishment Clause. We reverse the Court of Ap-
peals’ judgment.
“This Court has long recognized that the government
may . . . accommodate religious practices . . . without violat-
ing the Establishment Clause.” Hobbie v. Unemployment
Appeals Comm’n of Fla., 480 U. S. 136, 144–145 (1987). Just
last Term, in Locke v. Davey, 540 U. S. 712 (2004), the Court
reaffirmed that “there is room for play in the joints between”
the Free Exercise and Establishment Clauses, allowing the
government to accommodate religion beyond free exercise
requirements, without offense to the Establishment Clause.

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Id., at 718 (quoting Walz v. Tax Comm’n of City of New York,
397 U. S. 664, 669 (1970)). “At some point, accommodation
may devolve into ‘an unlawful fostering of religion.’ ” Cor-
poration of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v. Amos, 483 U. S. 327, 334–335 (1987)
(quoting Hobbie, 480 U. S., at 145). But § 3 of RLUIPA, we
hold, does not, on its face, exceed the limits of permissible
government accommodation of religious practices.
I
A
RLUIPA is the latest of long-running congressional efforts
to accord religious exercise heightened protection from
government-imposed burdens, consistent with this Court’s
precedents. Ten years before RLUIPA’s enactment, the
Court held, in Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U. S. 872, 878–882 (1990), that the First
Amendment’s Free Exercise Clause does not inhibit enforce-
ment of otherwise valid laws of general application that inci-
dentally burden religious conduct. In particular, we ruled
that the Free Exercise Clause did not bar Oregon from en-
forcing its blanket ban on peyote possession with no allow-
ance for sacramental use of the drug. Accordingly, the
State could deny unemployment benefits to persons dis-
missed from their jobs because of their religiously inspired
peyote use. Id., at 874, 890. The Court recognized, how-
ever, that the political branches could shield religious exer-
cise through legislative accommodation, for example, by
making an exception to proscriptive drug laws for sacramen-
tal peyote use. Id., at 890.
Responding to Smith, Congress enacted the Religious
Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,
42 U. S. C. § 2000bb et seq. RFRA “prohibits ‘[g]overnment’
from ‘substantially burden[ing]’ a person’s exercise of reli-
gion even if the burden results from a rule of general applica-
bility unless the government can demonstrate the burden ‘(1)

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is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compel-
ling governmental interest.’ ” City of Boerne v. Flores, 521
U. S. 507, 515–516 (1997) (quoting § 2000bb–1; brackets in
original). “[U]niversal” in its coverage, RFRA “applie[d]
to all Federal and State law,” id., at 516 (quoting former
§ 2000bb–3(a)), but notably lacked a Commerce Clause under-
pinning or a Spending Clause limitation to recipients of fed-
eral funds. In City of Boerne, this Court invalidated RFRA
as applied to States and their subdivisions, holding that the
Act exceeded Congress’ remedial powers under the Four-
teenth Amendment. Id., at 532–536. 2
Congress again responded, this time by enacting RLUIPA.
Less sweeping than RFRA, and invoking federal authority
under the Spending and Commerce Clauses, RLUIPA tar-
gets two areas: Section 2 of the Act concerns land-use regu-
lation, 42 U. S. C. § 2000cc; 3 § 3 relates to religious exercise
by institutionalized persons, § 2000cc–1. Section 3, at issue
here, provides that “[n]o [state or local] government shall
impose a substantial burden on the religious exercise of a
person residing in or confined to an institution,” unless the
government shows that the burden furthers “a compelling
governmental interest” and does so by “the least restrictive
means.” § 2000cc–1(a)(1)–(2). The Act defines “religious
exercise” to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.”
§ 2000cc–5(7)(A). Section 3 applies when “the substantial
burden [on religious exercise] is imposed in a program or
2 RFRA, Courts of Appeals have held, remains operative as to the Fed-
eral Government and federal territories and possessions. See O’Bryan v.
Bureau of Prisons, 349 F. 3d 399, 400–401 (CA7 2003); Guam v. Guerrero,
290 F. 3d 1210, 1220–1222 (CA9 2002); Kikumura v. Hurley, 242 F. 3d 950,
958–960 (CA10 2001); In re Young, 141 F. 3d 854, 858–863 (CA8 1998).
This Court, however, has not had occasion to rule on the matter.
3 Section 2 of RLUIPA is not at issue here. We therefore express no
view on the validity of that part of the Act.

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activity that receives Federal financial assistance,” 4 or “the
substantial burden affects, or removal of that substantial
burden would affect, commerce with foreign nations, among
the several States, or with Indian tribes.” § 2000cc–1(b)(1)–
(2). “A person may assert a violation of [RLUIPA] as a
claim or defense in a judicial proceeding and obtain appro-
priate relief against a government.” § 2000cc–2(a).
Before enacting § 3, Congress documented, in hearings
spanning three years, that “frivolous or arbitrary” barriers
impeded institutionalized persons’ religious exercise. See
146 Cong. Rec. 16698, 16699 (2000) ( joint statement of
Sen. Hatch and Sen. Kennedy on RLUIPA) (hereinafter
Joint Statement) (“Whether from indifference, ignorance,
bigotry, or lack of resources, some institutions restrict reli-
gious liberty in egregious and unnecessary ways.”).5 To se-
4 Every State, including Ohio, accepts federal funding for its prisons.
Brief for United States 28, n. 16 (citing FY 2003 Office of Justice Pro-
grams & Office of Community Oriented Policing Services Grants by State).
5 The hearings held by Congress revealed, for a typical example, that
“[a] state prison in Ohio refused to provide Moslems with Hallal food,
even though it provided Kosher food.” Hearing on Protecting Religious
Freedom After Boerne v. Flores before the Subcommittee on the Constitu-
tion of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. 3,
p. 11, n. 1 (1998) (hereinafter Protecting Religious Freedom) (prepared
statement of Marc D. Stern, Legal Director, American Jewish Congress).
Across the country, Jewish inmates complained that prison officials refused
to provide sack lunches, which would enable inmates to break their fasts
after nightfall. Id., at 39 (statement of Isaac M. Jaroslawicz, Director
of Legal Affairs for the Aleph Institute). The “Michigan Department of
Corrections . . . prohibit[ed] the lighting of Chanukah candles at all state
prisons” even though “smoking” and “votive candles” were permitted.
Id., at 41 (same). A priest responsible for communications between
Roman Catholic dioceses and corrections facilities in Oklahoma stated that
there “was [a] nearly yearly battle over the Catholic use of Sacramental
Wine . . . for the celebration of the Mass,” and that prisoners’ religious
possessions, “such as the Bible, the Koran, the Talmud or items needed by
Native Americans[,] . . . were frequently treated with contempt and were
confiscated, damaged or discarded” by prison officials. Id., pt. 2, at 58–59
(prepared statement of Donald W. Brooks, Reverend, Diocese of Tulsa,
Oklahoma).

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cure redress for inmates who encountered undue barriers to
their religious observances, Congress carried over from
RFRA the “compelling governmental interest”/“least re-
strictive means” standard. See id., at 16698. Lawmakers
anticipated, however, that courts entertaining complaints
under § 3 would accord “due deference to the experience and
expertise of prison and jail administrators.” Id., at 16699
(quoting S. Rep. No. 103–111, p. 10 (1993)).
B
Petitioners initially filed suit against respondents assert-
ing claims under the First and Fourteenth Amendments.
After RLUIPA’s enactment, petitioners amended their com-
plaints to include claims under § 3. Respondents moved to
dismiss the statutory claims, arguing, inter alia, that § 3 vio-
lates the Establishment Clause. 221 F. Supp. 2d, at 846.
Pursuant to 28 U. S. C. § 2403(a), the United States inter-
vened in the District Court to defend RLUIPA’s constitu-
tionality. 349 F. 3d 257, 261 (CA6 2003).
Adopting the report and recommendation of the Magis-
trate Judge, the District Court rejected the argument that
§ 3 conflicts with the Establishment Clause. 221 F. Supp.
2d, at 846–848. As to the Act’s impact on a prison’s staff and
general inmate population, the court stated that RLUIPA
“permits safety and security—which are undisputedly com-
pelling state interests—to outweigh an inmate’s claim to a
religious accommodation.” Id., at 848. On the thin record
before it, the court declined to find, as respondents had
urged, that enforcement of RLUIPA, inevitably, would com-
promise prison security. Ibid.
On interlocutory appeal pursuant to 28 U. S. C. § 1292(b),
the Court of Appeals for the Sixth Circuit reversed. Citing
Lemon v. Kurtzman, 403 U. S. 602 (1971),6 the Court of Ap-
6 Lemon stated a three-part test: “First, the statute must have a secular
legislative purpose; second, its principal or primary effect must be one
that neither advances nor inhibits religion; finally, the statute must not

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peals held that § 3 of RLUIPA “impermissibly advanc[es] re-
ligion by giving greater protection to religious rights than to
other constitutionally protected rights.” 349 F. 3d, at 264.
Affording “religious prisoners rights superior to those of
nonreligious prisoners,” the court suggested, might “encour-
ag[e] prisoners to become religious in order to enjoy greater
rights.” Id., at 266.
We granted certiorari to resolve the conflict among
Courts of Appeals on the question whether RLUIPA’s
institutionalized-persons provision, § 3 of the Act, is consist-
ent with the Establishment Clause of the First Amendment.
543 U. S. 924 (2004).7 Compare 349 F. 3d 257 with Madison
v. Riter, 355 F. 3d 310, 313 (CA4 2003) (§ 3 of RLUIPA does
not violate the Establishment Clause); Charles v. Verhagen,
348 F. 3d 601, 610–611 (CA7 2003) (same); Mayweathers v.
Newland, 314 F. 3d 1062, 1068–1069 (CA9 2002) (same). We
foster an excessive government entanglement with religion.” 403 U. S.,
at 612–613 (citations and internal quotation marks omitted). We resolve
this case on other grounds.
7 Respondents argued below that RLUIPA exceeds Congress’ legislative
powers under the Spending and Commerce Clauses and violates the Tenth
Amendment. The District Court rejected respondents’ challenges under
the Spending Clause, Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 839–849
(SD Ohio 2002), and the Tenth Amendment, id., at 850–851, and declined to
reach the Commerce Clause question, id., at 838–839. The Sixth Circuit,
having determined that RLUIPA violates the Establishment Clause, did
not rule on respondents’ further arguments. See 349 F. 3d 257, 259–260,
269 (2003). Respondents renew those arguments in this Court. They
also augment their federalism-based or residual-powers contentions by as-
serting that, in the space between the Free Exercise and Establishment
Clauses, the States’ choices are not subject to congressional oversight.
See Brief for Respondents 9, 25–33; cf. Madison v. Riter, 355 F. 3d 310,
322 (CA4 2003). Because these defensive pleas were not addressed by
the Court of Appeals, and mindful that we are a court of review, not of
first view, we do not consider them here. See F. Hoffmann-La Roche Ltd
v. Empagran S. A., 542 U. S. 155, 175 (2004); United States v. Oakland
Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001). But cf. post, at
727, n. 2 (Thomas, J., concurring).

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now reverse the judgment of the Court of Appeals for the
Sixth Circuit.
II
A
The Religion Clauses of the First Amendment provide:
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” The first
of the two Clauses, commonly called the Establishment
Clause, commands a separation of church and state. The
second, the Free Exercise Clause, requires government re-
spect for, and noninterference with, the religious beliefs and
practices of our Nation’s people. While the two Clauses ex-
press complementary values, they often exert conflicting
pressures. See Locke, 540 U. S., at 718 (“These two
Clauses . . . are frequently in tension.”); Walz, 397 U. S., at
668–669 (“The Court has struggled to find a neutral course
between the two Religion Clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical
extreme, would tend to clash with the other.”).
Our decisions recognize that “there is room for play in the
joints” between the Clauses, id., at 669, some space for legis-
lative action neither compelled by the Free Exercise Clause
nor prohibited by the Establishment Clause. See, e. g.,
Smith, 494 U. S., at 890 (“[A] society that believes in the neg-
ative protection accorded to religious belief can be expected
to be solicitous of that value in its legislation . . . .”); Amos,
483 U. S., at 329–330 (Federal Government may exempt secu-
lar nonprofit activities of religious organizations from Title
VII’s prohibition on religious discrimination in employment);
Sherbert v. Verner, 374 U. S. 398, 422 (1963) (Harlan, J., dis-
senting) (“The constitutional obligation of ‘neutrality’ is not
so narrow a channel that the slightest deviation from an ab-
solutely straight course leads to condemnation.” (citation
omitted)). In accord with the majority of Courts of Appeals
that have ruled on the question, see supra, at 718 and this

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page, we hold that § 3 of RLUIPA fits within the corridor
between the Religion Clauses: On its face, the Act qualifies
as a permissible legislative accommodation of religion that is
not barred by the Establishment Clause.
Foremost, we find RLUIPA’s institutionalized-persons
provision compatible with the Establishment Clause because
it alleviates exceptional government-created burdens on pri-
vate religious exercise. See Board of Ed. of Kiryas Joel
Village School Dist. v. Grumet, 512 U. S. 687, 705 (1994)
(government need not “be oblivious to impositions that legit-
imate exercises of state power may place on religious belief
and practice”); Amos, 483 U. S., at 349 (O’Connor, J., concur-
ring in judgment) (removal of government-imposed burdens
on religious exercise is more likely to be perceived “as an
accommodation of the exercise of religion rather than as a
Government endorsement of religion”). 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 accommo-
dation may impose on nonbeneficiaries, see Estate of Thorn-
ton v. Caldor, Inc., 472 U. S. 703 (1985); and they must be
satisfied that the Act’s prescriptions are and will be adminis-
tered neutrally among different faiths, see Kiryas Joel, 512
U. S. 687.8
“[T]he ‘exercise of religion’ often involves not only belief
and profession but the performance of . . . physical acts [such
as] assembling with others for a worship service [or] partici-
pating in sacramental use of bread and wine . . . .” Smith,
494 U. S., at 877. Section 3 covers state-run institutions—
mental hospitals, prisons, and the like—in which the govern-
ment exerts a degree of control unparalleled in civilian soci-
8 Directed at obstructions institutional arrangements place on religious
observances, RLUIPA does not require a State to pay for an inmate’s
devotional accessories. See, e. g., Charles v. Verhagen, 348 F. 3d 601, 605
(CA7 2003) (overturning prohibition on possession of Islamic prayer oil but
leaving inmate-plaintiff with responsibility for purchasing the oil).

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ety and severely disabling to private religious exercise. 42
U. S. C. § 2000cc–1(a); § 1997; see Joint Statement 16699 (“In-
stitutional residents’ right to practice their faith is at the
mercy of those running the institution.”).9 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 ex-
ercise of their religion.10
9 See, e. g., ibid. (prison’s regulation prohibited Muslim prisoner from
possessing ritual cleansing oil); Young v. Lane, 922 F. 2d 370, 375–376
(CA7 1991) (prison’s regulation restricted wearing of yarmulkes); Hunafa
v. Murphy, 907 F. 2d 46, 47–48 (CA7 1990) (noting instances in which Jew-
ish and Muslim prisoners were served pork, with no substitute available).
10 Respondents argue, in line with the Sixth Circuit, that RLUIPA goes
beyond permissible reduction of impediments to free exercise. The Act,
they project, advances religion by encouraging prisoners to “get religion,”
and thereby gain accommodations afforded under RLUIPA. Brief for Re-
spondents 15–17; see 349 F. 3d, at 266 (“One effect of RLUIPA is to induce
prisoners to adopt or feign religious belief in order to receive the statute’s
benefits.”). While some accommodations of religious observance, notably
the opportunity to assemble in worship services, might attract joiners
seeking a break in their closely guarded day, we doubt that all accommoda-
tions would be perceived as “benefits.” For example, congressional hear-
ings on RLUIPA revealed that one state corrections system served as its
kosher diet “a fruit, a vegetable, a granola bar, and a liquid nutritional
supplement—each and every meal.” Protecting Religious Freedom, pt.
3, at 38 (statement of Jaroslawicz).
The argument, in any event, founders on the fact that Ohio already
facilitates religious services for mainstream faiths. The State provides
chaplains, allows inmates to possess religious items, and permits assembly
for worship. See App. 199 (affidavit of David Schwarz, Religious Services
Administrator for the South Region of the Ohio Dept. of Rehabilitation
and Correction (Oct. 19, 2000)) ( job duties include “facilitating the delivery
of religious services in 14 correctional institutions of various security lev-
els throughout . . . Ohio”); Ohio Dept. of Rehabilitation and Correction,
Table of Organization (Apr. 2005), available at http://www.drc.state.oh.us/
web/DRCORG1.pdf (as visited May 27, 2005, and available in Clerk of
Court’s case file) (department includes “Religious Services” division); Brief
for United States 20, and n. 8 (citing, inter alia, Gawloski v. Dallman, 803
F. Supp. 103, 113 (SD Ohio 1992) (inmate in protective custody allowed to

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We note in this regard the Federal Government’s accom-
modation of religious practice by members of the military.
See, e. g., 10 U. S. C. § 3073 (referring to Army chaplains);
Katcoff v. Marsh, 755 F. 2d 223, 225–229 (CA2 1985) (describ-
ing the Army chaplaincy program). In Goldman v. Wein-
berger, 475 U. S. 503 (1986), we held that the Free Exercise
Clause did not require the Air Force to exempt an Orthodox
Jewish officer from uniform dress regulations so that he
could wear a yarmulke indoors. In a military community,
the Court observed, “there is simply not the same [individ-
ual] autonomy as there is in the larger civilian community.”
Id., at 507 (brackets in original; internal quotation marks
omitted). Congress responded to Goldman by prescribing
that “a member of the armed forces may wear an item of
religious apparel while wearing the uniform,” unless “the
wearing of the item would interfere with the performance
[of] military duties [or] the item of apparel is not neat and
conservative.” 10 U. S. C. § 774(a)–(b).
We do not read RLUIPA to elevate accommodation of reli-
gious observances over an institution’s need to maintain
order and safety. Our decisions indicate that an accommo-
dation must be measured so that it does not override other
significant interests. In Caldor, the Court struck down a
Connecticut law that “arm[ed] Sabbath observers with an
absolute and unqualified right not to work on whatever day
they designate[d] as their Sabbath.” 472 U. S., at 709. We
held the law invalid under the Establishment Clause because
it “unyielding[ly] weigh[ted]” the interests of Sabbatarians
“over all other interests.” Id., at 710.
We have no cause to believe that RLUIPA would not be
applied in an appropriately balanced way, with particular
sensitivity to security concerns. While the Act adopts a
attend a congregational religious service, possess a Bible and other reli-
gious materials, and receive chaplain visits); Taylor v. Perini, 413 F. Supp.
189, 238 (ND Ohio 1976) (institutional chaplains had free access to correc-
tional area)).

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“compelling governmental interest” standard, see supra, at
715, “[c]ontext matters” in the application of that standard.
See Grutter v. Bollinger, 539 U. S. 306, 327 (2003).11 Law-
makers supporting RLUIPA were mindful of the urgency of
discipline, order, safety, and security in penal institutions.
See, e. g., 139 Cong. Rec. 26190 (1993) (remarks of Sen.
Hatch). They anticipated that courts would apply the Act’s
standard with “due deference to the experience and exper-
tise of prison and jail administrators in establishing neces-
sary regulations and procedures to maintain good order, se-
curity and discipline, consistent with consideration of costs
and limited resources.” Joint Statement 16699 (quoting
S. Rep. No. 103–111, at 10).12
Finally, RLUIPA does not differentiate among bona fide
faiths. In Kiryas Joel, we invalidated a state law that
carved out a separate school district to serve exclusively a
11 The Sixth Circuit posited that an irreligious prisoner and member of
the Aryan Nation who challenges prison officials’ confiscation of his white
supremacist literature as a violation of his free association and expression
rights would have his claims evaluated under the deferential rational-
relationship standard described in Turner v. Safley, 482 U. S. 78 (1987).
A member of the Church of Jesus Christ Christian challenging a similar
withholding, the Sixth Circuit assumed, would have a stronger prospect
of success because a court would review his claim under RLUIPA’s
compelling-interest standard. 349 F. 3d, at 266 (citing Madison v. Riter,
240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be ex-
pected to recognize the government’s countervailing compelling interest
in not facilitating inflammatory racist activity that could imperil prison
security and order. Cf. Reimann v. Murphy, 897 F. Supp. 398, 402–403
(ED Wis. 1995) (concluding, under RFRA, that excluding racist literature
advocating violence was the least restrictive means of furthering the com-
pelling state interest in preventing prison violence); George v. Sullivan,
896 F. Supp. 895, 898 (WD Wis. 1995) (same).
12 State prison officials make the first judgment about whether to
provide a particular accommodation, for a prisoner may not sue under
RLUIPA without first exhausting all available administrative remedies.
See 42 U. S. C. § 2000cc–2(e) (nothing in RLUIPA “shall be construed to
amend or repeal the Prison Litigation Reform Act of 1995”); § 1997e(a)
(requiring exhaustion of administrative remedies).

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community of highly religious Jews, the Satmar Hasidim.
We held that the law violated the Establishment Clause, 512
U. S., at 690, in part because it “single[d] out a particular
religious sect for special treatment,” id., at 706 (footnote
omitted). RLUIPA presents no such defect. It confers no
privileged status on any particular religious sect, and singles
out no bona fide faith for disadvantageous treatment.
B
The Sixth Circuit misread our precedents to require invali-
dation of RLUIPA as “impermissibly advancing religion by
giving greater protection to religious rights than to other
constitutionally protected rights.” 349 F. 3d, at 264. Our
decision in Amos counsels otherwise. There, we upheld
against an Establishment Clause challenge a provision ex-
empting “religious organizations from Title VII’s prohibition
against discrimination in employment on the basis of reli-
gion.” 483 U. S., at 329. The District Court in Amos, rea-
soning in part that the exemption improperly “single[d] out
religious entities for a benefit,” id., at 338, had “declared the
statute unconstitutional as applied to secular activity,” id.,
at 333. Religious accommodations, we held, need not “come
packaged with benefits to secular entities.” Id., at 338;
see Madison, 355 F. 3d, at 318 (“There is no requirement
that legislative protections for fundamental rights march in
lockstep.”).
Were the Court of Appeals’ view the correct reading of
our decisions, all manner of religious accommodations would
fall. Congressional permission for members of the military
to wear religious apparel while in uniform would fail, see 10
U. S. C. § 774, as would accommodations Ohio itself makes.
Ohio could not, as it now does, accommodate “traditionally
recognized” religions, 221 F. Supp. 2d, at 832: The State
provides inmates with chaplains “but not with publicists
or political consultants,” and allows “prisoners to assemble

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for worship, but not for political rallies,” Reply Brief for
United States 5.
In upholding RLUIPA’s institutionalized-persons provi-
sion, we emphasize that respondents “have raised a facial
challenge to [the Act’s] constitutionality, and have not con-
tended that under the facts of any of [petitioners’] specific
cases . . . [that] applying RLUIPA would produce uncon-
stitutional results.” 221 F. Supp. 2d, at 831. The District
Court, noting the underdeveloped state of the record, con-
cluded: A finding “that it is factually impossible to provide
the kind of accommodations that RLUIPA will require with-
out significantly compromising prison security or the levels
of service provided to other inmates” cannot be made at this
juncture. Id., at 848 (emphasis added).13 We agree.
“For more than a decade, the federal Bureau of Prisons
has managed the largest correctional system in the Nation
under the same heightened scrutiny standard as RLUIPA
without compromising prison security, public safety, or the
constitutional rights of other prisoners.” Brief for United
States 24 (citation omitted). The Congress that enacted
RLUIPA was aware of the Bureau’s experience. See Joint
Statement 16700 (letter from Dept. of Justice to Sen. Hatch)
(“[W]e do not believe [RLUIPA] would have an unreasonable
13 Respondents argue that prison gangs use religious activity to cloak
their illicit and often violent conduct. The instant case was considered
below on a motion to dismiss. Thus, the parties’ conflicting assertions on
this matter are not before us. It bears repetition, however, that prison
security is a compelling state interest, and that deference is due to institu-
tional officials’ expertise in this area. See supra, at 722–723. Further,
prison officials may appropriately question whether a prisoner’s religiosity,
asserted as the basis for a requested accommodation, is authentic. Al-
though RLUIPA bars inquiry into whether a particular belief or practice
is “central” to a prisoner’s religion, see 42 U. S. C. § 2000cc–5(7)(A), the
Act does not preclude inquiry into the sincerity of a prisoner’s professed
religiosity. Cf. Gillette v. United States, 401 U. S. 437, 457 (1971) (“ ‘[T]he
“truth” of a belief is not open to question’; rather, the question is whether
the objector’s beliefs are ‘truly held.’ ” (quoting United States v. Seeger,
380 U. S. 163, 185 (1965))).

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impact on prison operations. RFRA has been in effect in
the Federal prison system for six years and compliance with
that statute has not been an unreasonable burden to the Fed-
eral prison system.”). We see no reason to anticipate that
abusive prisoner litigation will overburden the operations of
state and local institutions. The procedures mandated by
the Prison Litigation Reform Act of 1995, we note, are de-
signed to inhibit frivolous filings.14
Should inmate requests for religious accommodations be-
come excessive, impose unjustified burdens on other institu-
tionalized persons, or jeopardize the effective functioning of
an institution, the facility would be free to resist the imposi-
tion. In that event, adjudication in as-applied challenges
would be in order.
* * *
For the reasons stated, the judgment of the United States
Court of Appeals for the Sixth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, concurring.
I join the opinion of the Court. I agree with the Court
that the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA) is constitutional under our modern
Establishment Clause case law.1 I write to explain why a
14 See supra, at 723, n. 12.
1 The Court properly declines to assess RLUIPA under the discredited
test of Lemon v. Kurtzman, 403 U. S. 602 (1971), which the Court of Ap-
peals applied below, 349 F. 3d 257, 262–268 (CA6 2003). Lemon held that,
to avoid invalidation under the Establishment Clause, a statute “must
have a secular legislative purpose,” “its principal or primary effect must
be one that neither advances nor inhibits religion,” and it “must not foster
an excessive government entanglement with religion.” 403 U. S., at 612–
613 (internal quotation marks omitted). Under the first and second
prongs, RLUIPA—and, indeed, any accommodation of religion—might
well violate the Clause. Even laws disestablishing religion might violate

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Thomas, J., concurring
proper historical understanding of the Clause as a federalism
provision leads to the same conclusion.2
I
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion.”
Amdt. 1. As I have explained, an important function of the
Clause was to “ma[ke] clear that Congress could not inter-
fere with state establishments.” Elk Grove Unified School
Dist. v. Newdow, 542 U. S. 1, 50 (2004) (opinion concurring
in judgment). The Clause, then, “is best understood as a
the Clause. Disestablishment might easily have a religious purpose and
thereby flunk the first prong, or it might well “strengthen and revitalize”
religion and so fail the second. McConnell, Establishment and Disestab-
lishment at the Founding, Part I: Establishment of Religion, 44 Wm. &
Mary L. Rev. 2105, 2206–2207 (2003) (hereinafter McConnell).
2 The Court dismisses the parties’ arguments about the federalism as-
pect of the Clause with the brief observation that the Court of Appeals
did not address the issue. Ante, at 718, n. 7. The parties’ contentions on
this point, however, are fairly included in the question presented, which
asks “[w]hether Congress violated the Establishment Clause by enacting
[RLUIPA].” Pet. for Cert. i. Further, both parties have briefed the fed-
eralism understanding of the Clause, Brief for Respondents 25–33; Reply
Brief for Petitioners 12–16, and neither suggests that a remand on it would
be useful or that the record in this Court lacks relevant facts, Good News
Club v. Milford Central School, 533 U. S. 98, 119, n. 9 (2001).
Also, though RLUIPA is entirely consonant with the Establishment
Clause, it may well exceed Congress’ authority under either the Spending
Clause or the Commerce Clause. See Sabri v. United States, 541 U. S.
600, 613 (2004) (Thomas, J., concurring in judgment) (for a Spending
Clause condition on a State’s receipt of funds to be “Necessary and
Proper” to the expenditure of the funds, there must be “some obvious,
simple, and direct relation” between the condition and the expenditure of
the funds); United States v. Lopez, 514 U. S. 549, 587 (1995) (Thomas, J.,
concurring) (“The Constitution not only uses the word ‘commerce’ in a
narrower sense than our case law might suggest, it also does not support
the proposition that Congress has authority over all activities that ‘sub-
stantially affect’ interstate commerce”). The Court, however, properly
declines to reach those issues, since they are outside the question pre-
sented and were not addressed by the Court of Appeals.

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federalism provision” that “protects state establishments
from federal interference.” Ibid.; see also Zelman v.
Simmons-Harris, 536 U. S. 639, 677–680 (2002) (Thomas, J.,
concurring); Lee v. Weisman, 505 U. S. 577, 641 (1992)
(Scalia, J., dissenting). Ohio contends that this federalism
understanding of the Clause prevents federal oversight of
state choices within the “ ‘play in the joints’ ” between the
Free Exercise and Establishment Clauses. Locke v. Davey,
540 U. S. 712, 718–719 (2004). In other words, Ohio asserts
that the Clause protects the States from federal interference
with otherwise constitutionally permissible choices regard-
ing religious policy. In Ohio’s view, RLUIPA intrudes on
such state policy choices and hence violates the Clause.
Ohio’s vision of the range of protected state authority
overreads the Clause. Ohio and its amici contend that, even
though “States can no longer establish preferred churches”
because the Clause has been incorporated against the States
through the Fourteenth Amendment,3 “Congress is as unable
as ever to contravene constitutionally permissible State
choices regarding religious policy.” Brief for Respondents
26 (emphasis added); Brief for Commonwealth of Virginia
et al. as Amici Curiae 6–13. That is not what the Clause
says. The Clause prohibits Congress from enacting legisla-
tion “respecting an establishment of religion” (emphasis
added); it does not prohibit Congress from enacting legisla-
tion “respecting religion” or “taking cognizance of religion.”
3 Ohio claims the benefit of the federalism aspect of the Clause, yet si-
multaneously adheres to the view that the Establishment Clause was in-
corporated against the States through the Fourteenth Amendment. Brief
for Respondents 25–26. These positions may be incompatible. The text
and history of the Clause may well support the view that the Clause is
not incorporated against the States precisely because the Clause shielded
state establishments from congressional interference. Elk Grove Unified
School Dist. v. Newdow, 542 U. S. 1, 50–51 (2004) (Thomas, J., concurring
in judgment). I note, however, that a state law that would violate the
incorporated Establishment Clause might also violate the Free Exercise
Clause. Id., at 53, n. 4, 54, n. 5.

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Thomas, J., concurring
P. Hamburger, Separation of Church and State 106–107
(2002). At the founding, establishment involved “ ‘coercion
of religious orthodoxy and of financial support by force of
law and threat of penalty,’ ” Newdow, supra, at 52 (Thomas,
J., concurring in judgment) (quoting Lee, supra, at 640–641
(Scalia, J., dissenting), in turn citing L. Levy, The Estab-
lishment Clause 4 (1986)), including “ ‘governmental prefer-
ences for particular religious faiths,’ ” 542 U. S., at 53 (quot-
ing Rosenberger v. Rector and Visitors of Univ. of Va., 515
U. S. 819, 856 (1995) (Thomas, J., concurring)). In other
words, establishment at the founding involved, for example,
mandatory observance or mandatory payment of taxes
supporting ministers. See 542 U. S., at 52 (Thomas, J., con-
curring in judgment); Lee, supra, at 640–641 (Scalia, J.,
dissenting); McConnell 2131; L. Levy, The Establishment
Clause: Religion and the First Amendment 10 (2d ed. 1994).
To proscribe Congress from making laws “respecting an es-
tablishment of religion,” therefore, was to forbid legislation
respecting coercive state establishments, not to preclude
Congress from legislating on religion generally.
History, at least that presented by Ohio, does not show
that the Clause hermetically seals the Federal Government
out of the field of religion. Ohio points to, among other
things, the words of James Madison in defense of the Consti-
tution at the Virginia Ratifying Convention: “There is not a
shadow of right in the general government to intermeddle
with religion. Its least interference with it would be a most
flagrant usurpation.” General Defense of the Constitution
(June 12, 1788), reprinted in 11 Papers of James Madison 130
(R. Rutland, C. Hobson, W. Rachal, & J. Sisson eds. 1977).
Ohio also relies on James Iredell’s statement discussing the
Religious Test Clause at the North Carolina Ratifying
Convention:
“[Congress] certainly [has] no authority to interfere in
the establishment of any religion whatsoever . . . . Is
there any power given to Congress in matters of reli-

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730 CUTTER v. WILKINSON
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gion? Can they pass a single act to impair our religious
liberties? If they could, it would be a just cause of
alarm . . . . If any future Congress should pass an act
concerning the religion of the country, it would be an act
which they are not authorized to pass, by the Constitu-
tion, and which the people would not obey.” Debate in
North Carolina Ratifying Convention (July 30, 1788), in
5 Founders’ Constitution 90 (P. Kurland & R. Lerner
eds. 1987).
These quotations do not establish the Framers’ beliefs
about the scope of the Establishment Clause. Instead, they
demonstrate only that some of the Framers may have be-
lieved that the National Government had no authority to leg-
islate concerning religion, because no enumerated power
gave it that authority. Ohio’s Spending Clause and Com-
merce Clause challenges, therefore, may well have merit.
See n. 2, supra.
In any event, Ohio has not shown that the Establishment
Clause codified Madison’s or Iredell’s view that the Federal
Government could not legislate regarding religion. An un-
enacted version of the Clause, proposed in the House of Rep-
resentatives, demonstrates the opposite. It provided that
“Congress shall make no laws touching religion, or infringing
the rights of conscience.” 1 Annals of Cong. 731 (1789); see
also Wallace v. Jaffree, 472 U. S. 38, 96–97 (1985) (Rehn-
quist, J., dissenting). The words ultimately adopted, “Con-
gress shall make no law respecting an establishment of reli-
gion,” “identified a position from which [Madison] had once
sought to distinguish his own,” Hamburger, Separation of
Church and State, at 106. Whatever he thought of those
words, “he clearly did not mind language less severe than
that which he had [previously] used.” Ibid. The version of
the Clause finally adopted is narrower than Ohio claims.
Nor does the other historical evidence on which Ohio re-
lies—Joseph Story’s Commentaries on the Constitution—
prove its theory. Leaving aside the problems with relying

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Thomas, J., concurring
on this source as an indicator of the original understanding,
see U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856
(1995) (Thomas, J., dissenting), it is unpersuasive in its own
right. Justice Story did say that “the whole power over the
subject of religion is left exclusively to the state govern-
ments, to be acted upon according to their own sense of jus-
tice, and the state constitutions.” Commentaries on the
Constitution of the United States 702–703 (1833) (reprinted
1987). In context, however, his statement concerned only
Congress’ inability to legislate with respect to religious
establishment. See id., at 701 (“The real object of the
amendment was . . . to prevent any national ecclesiastical
establishment, which should give to an hierarchy the exclu-
sive patronage of the national government”); id., at 702 (“[I]t
was deemed advisable to exclude from the national govern-
ment all power to act upon the subject . . . . It was impossi-
ble, that there should not arise perpetual strife and perpet-
ual jealousy on the subject of ecclesiastical ascendancy, if the
national government were left free to create a religious
establishment”).
In short, the view that the Establishment Clause pre-
cludes Congress from legislating respecting religion lacks
historical provenance, at least based on the history of which
I am aware. Even when enacting laws that bind the States
pursuant to valid exercises of its enumerated powers, Con-
gress need not observe strict separation between church and
state, or steer clear of the subject of religion. It need only
refrain from making laws “respecting an establishment of
religion”; it must not interfere with a state establishment
of religion. For example, Congress presumably could not
require a State to establish a religion any more than it could
preclude a State from establishing a religion.
II
On its face—the relevant inquiry, as this is a facial chal-
lenge—RLUIPA is not a law “respecting an establishment of

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religion.” RLUIPA provides, as relevant: “No government
shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution, . . . even
if the burden results from a rule of general applicability, un-
less the government demonstrates that imposition of the
burden on that person,” first, “further[s] a compelling gov-
ernmental interest,” and second, “is the least restrictive
means of furthering that compelling governmental interest.”
42 U. S. C. §§ 2000cc–1(a)(1)–(2). This provision does not
prohibit or interfere with state establishments, since no
State has established (or constitutionally could establish,
given an incorporated Clause) a religion. Nor does the pro-
vision require a State to establish a religion: It does not force
a State to coerce religious observance or payment of taxes
supporting clergy, or require a State to prefer one religious
sect over another. It is a law respecting religion, but not
one respecting an establishment of religion.
In addition, RLUIPA’s text applies to all laws passed by
state and local governments, including “rule[s] of general ap-
plicability,” ibid., whether or not they concern an establish-
ment of religion. State and local governments obviously
have many laws that have nothing to do with religion, let
alone establishments thereof. Numerous applications of
RLUIPA therefore do not contravene the Establishment
Clause, and a facial challenge based on the Clause must fail.
See United States v. Booker, 543 U. S. 220, 314 (2005)
(Thomas, J., concurring in part and dissenting in part);
United States v. Salerno, 481 U. S. 739, 745 (1987).
It also bears noting that Congress, pursuant to its Spend-
ing Clause authority, conditioned the States’ receipt of fed-
eral funds on their compliance with RLUIPA. § 2000cc–
1(b)(1) (“This section applies in any case in which . . . the
substantial burden is imposed in a program or activity that
receives Federal financial assistance”). As noted above,
n. 2, supra, RLUIPA may well exceed the spending power.
Nonetheless, while Congress’ condition stands, the States

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subject themselves to that condition by voluntarily accepting
federal funds. The States’ voluntary acceptance of Con-
gress’ condition undercuts Ohio’s argument that Congress is
encroaching on its turf.