Federal court in Wisconsin asked to certify prisoner case for appealMar 28, 2003
The Becket Fund for Religious Liberty, which now represents Wisconsin prison
inmate Tayr Kilaab al Ghashiyah (Kahn), has asked U.S. District Judge Lynn Adelman
to certify Ghashiyah's case for interlocutory appeal (PDF format, 46K) to the
Seventh U.S. Circuit Court of Appeals.
Ghashiyah, a Muslim, sued the Wisconsin Department of Corrections (DOC) in
January 2001, charging that it had violated his rights under the First Amendment
to the U.S. Constitution and the Religious Land Use and Institutionalized Persons
Act of 2000 ("RLUIPA"). He claims that DOC officials refused his request
for a special diet and for permission to use various oils and incense he says
are required by his religion.
The Department of Corrections challenged the constitutionality of RLUIPA, and
the U.S. Department of Justice intervened in the case to defend the statute.
On March 4, 2003, Judge Adelman issued a decision and order in which he found
RLUIPA unconstitutional on grounds that "it fosters an excessive entanglement
between government and religion," and thus violates the Establishment Clause
of the First Amendment. Judge Adelman declined to dismiss Ghashiyah's constitutional
claims, however, and they will be decided at trial.
The Becket Fund has agreed to represent Ghashiyah for the sole purpose of defending
the constitutionality of RLUIPA in an appeal to the Seventh Circuit in Chicago.
An interlocutory appeal is one that asks a circuit court to review a lower court
ruling on a key part of a case (in this instance, the constitutionality of RLUIPA)
before the case goes to trial in district court. Attorneys for the Department
of Corrections have indicated they will not oppose certifying the case for appeal.
Last August, Judge Barbara Crabb of the Western District of Wisconsin took
the opposite view of RLUIPA, ruling in Charles v. Verhagen that the statute
is constitutional. That case is already on appeal to the Seventh Circuit, meaning
that the Department of Corrections will have an opportunity to argue its position
on RLUIPA there. The Becket Fund's request for interlocutory appeal states that
"as a matter of fairness and to avoid any prejudice to his rights, [Ghashiyah]
should be given a similar opportunity to brief the issue to the Seventh Circuit."
The Becket Fund has litigated or otherwise been involved in dozens of RLUIPA
cases since the law was signed into law by President Clinton on September 22,
2000. It operates a special web site devoted exclusively to the statute, www.rluipa.com
.
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