The ruling is unremarkable except to suggest that the Taxing and Spending Power, recently thought ripe for narrowing under our new Supreme Court regime, appears to be alive and well, at least where religion is involved. As a consequence, the conservatism that brought the United States a new sensitivity to religion in state action also promises to continue to march down the path to the certain obliteration of states as a semi sovereign viable level of government in the United States and takes us one step closer to the end of the federalism experiment started by the Founders of the Republic.
The federal statute at issue, the Religious Land Use and Institutionalized Persons Act, enacted in 2000, imposes a strict test (a substantial burden on religion permitted only where state shows a compelling interest test) on federally assisted programs and programs and activities affecting interstate commerce. The statute was validated as within the scope of permissible religious accommodation under the Establishment Clause in Cutter v. Wilkinson, 544 U.S. 709 (205). However, the statute could not be extended to areas of regulation beyond the direct power of Congress under the federal Constitution. City of Boerne v. Flores, 521 U.S. 507 (1997). Congress sought to limit this qualification by extending the reach of the statute to the greatest extent of its power under the Commerce Clause and the Taxing and Spending Power, two enumerated powers whose substantial extension in the 20th century have been at the heart of conservative efforts to limit federal power at the expense of the states. For that reason, some commentators had argued that Congress could not extend its power to accommodate religion at the expense of state authority over that issue in areas meant to fall directly under state control. See Daniel O. Conkle, Congressional Alternatives in the Wake of City of Boerne v. Flores: The (Limited) Role of Congress in Protecting Religious Liberty From State and Local Infringement, 20 U. Ark. Little Rock L. Rev. 633 (1998). Others thought that Congress would have little trouble applying its aggressive extension of its powers to the imposition of religious accommodation on states. See Thomas C. Berg, The Constitutional Future of Religious Freedom Legislation, 20 U. Ark. Little Rock L. Rev. 715 (1998).
But even more ancient precedent suggested that while Congress could not compel (by legislation) in areas where the Constitution did not extend federal power, Congress could use the independent basis of the Taxing and Spending Powers to induce states to waive their rights to act independently and to agree to be bound by federal rules as a condition to the receipt of federal funds. South Dakota v. Dole (1987). In this case, Virginia, like every other state In the Republic, accepts federal funds tied to certain requirements. Virginia is not obligated to take those funds, but is obligated to comply with federal conditions for their receipt. Thus it came to pass that Virginia accepted federal funds granted only on condition that the state make applicable the provisions of the Religious Land Use and Institutionalized Persons Act to legislative and regulatory acts of Virginia. This Virginia was only too happy to do in return for the funds. Happy, that is, until it became inconvenient. Inconvenience, in this case, took the form of the expense of having to provide special meals to inmates claiming religious obligation. And so, when an inmate sought to comply with his religious obligation to eat only kosher food, the State of Virginia refused to accommodate the request (not that kosher meals would be a large problem for the Virginia penal system, but Halal meals might become a real burden, as might new and unknown food requirements among Virginia's prison population). But Virginia wanted to keep the money anyway. Judge Harvie Wilkinson III, writing for the majority of the panel hearing this case in the conservative 4th Circuit suggested that Virginia had to comply with the request. "Because Virginia voluntarily accepted federal correctional funds, it cannot avoid the substantive requirements of [the act]." Religious Land Use Law is Upheld, supra.
But substance conservatives may see a silver lining, even for federalism. That silver lining would embrace a different sort of exceptionalism--not of state power under a narrow reading of federalism, but of religious rights beyond the power of any government to burden without compelling purpose. For substance conservatives also to a great extent, view the Religion Clauses as mandating a preference for religion (and its accommodation) over secular concerns. As long as denominational neutrality is preserved (and then there are some Justices who are not troubled by a substantially looser understanding of parity among religions, see for example, Justice Scalia's dissent in McCreary County v. ACLU, 125 S.Ct. 2722 (2005)), accommodation ought to trump other considerations. In that context, decisions like this serve as another step on the road to a jurisprudence in which an exception to federalism might be carved out for religious accommodation, while the Taxing and Spending Power is otherwise curtailed as an independent source of federal legislative power. This religious exceptionalism to federalism might be deemed inherent in the basic structure of the federal system, or derived from a 'reasonable' interpretation of the Religion Clauses.' Whatever the basis, it might be possible to applaud the result without suggesting that federalism must be entirely sacrificed for the attainment of substantive policy goals. The law can make an endless number of distinctions. This may be a case that suggests the continued complexity of Religion and federalism jurisprudence for the foreseeable future.