In the Supreme Court

Update: On May 31, 2005, the U.S. Supreme Court upheld Section 3 of the Religious Land Use and Institutionalized Persons Act (RLUIPA) in Cutter v. Wilkinson, the case in which Professor David Goldberger represents current and former prison inmates seeking accommodation under the statute of their rights to exercise their religions. The Sixth Circuit had held the RLUIPA statute was invalid as a violation of the U.S. Constitution's Establishment Clause.

When Moritz College of Law Professor David Goldberger appeared before the U.S. Supreme Court on March 21, 2005, to present oral arguments defending the constitutionality of a federal statute in the case, Cutter v. Wilkinson, he was not alone. In the audience sat at least 20 students who had worked on the case at various times during the preceding years and who had an intense interest in it.

The case involved prison inmates who sued the state of Ohio claiming they were denied access to religious literature, ceremonial items, and group worship in violation of the Religious Land Use and Institutionalized Persons Act. The statute, which was enacted by Congress, requires states to accommodate prisoners' religious beliefs unless the prison officials can show that there is compelling reason not to accommodate the request.

The case was in the Supreme Court because the Sixth Circuit previously invalidated the statute as a violation of the U.S. Constitution's Establishment Clause. The Supreme Court was reviewing the lower court's decision because other circuit courts had found the statute to be constitutional.

"This case is likely to define the power of government to accommodate religious exercise in the face of state laws and regulations that impose burdens on us," Goldberger said prior to the March argument. "The case may also define the power of Congress to enact laws encouraging or requiring state officials to accommodate religion."

It also provided an opportunity for Moritz Law students to gain real-world experience. "We had a huge litigation team," recalls Goldberger. For more than five years, various students assisted with the case, providing research, editing briefs, and helping prepare for the final appeal.

"It was complex to set up a team like this," admits the professor. "Students' class schedules and their other responsibilities make it difficult for them to allocate large, uninterrupted blocks of time to preparing Supreme Court briefs, but the students who worked on the case were incredibly flexible and generous with their time."

"I feel very lucky to be involved in something so important to the school and to the law in general," says Anne Juterbock, a third-year law student who served as a research assistant for Goldberger. "I never thought I would set foot in a courtroom and now I am considering litigation as a career."

She gained from watching a seasoned lawyer prepare for such a high-profile argument. "I learned from Professor Goldberger that you have to do what is best for the client," she stresses. "You can't let the politics of the situation get in the way."

Jennifer Urban '01, who had been Professor Goldberger's research assistant before graduating, joined the team last year after finishing a clerkship with Judge Peggy Bryant of the Ohio 10th District Court of Appeals. "It was exciting to see it move into reality," she says of the case that has helped shape her legal career.

Third-year student Matthew McNeil began helping with the case when it was pending before the Sixth Circuit. He researched cases and helped prepare Professor Goldberger for that court appearance. His work turned into a student note, "The First Amendment Out on Highway 61: Bob Dylan, RLUIPA, and the Problem with Emerging Postmodern Religion Clauses Jurisprudence," which was published in the Ohio State Law Journal in autumn 2004 (65 Ohio St. L.J. 1021).

McNeil challenged the Sixth Circuit's analysis of the Establishment Clause. His note came from focusing on the reasoning he felt Supreme Court justices might follow in the case, although it became apparent during the March 21 argument that some of the positions might have changed. However, he found the experience of thinking through the case and writing his conclusions important. "I learned that my insights are valid and I should pursue them," he notes.

Goldberger has taught in the Clinical Program at Ohio State since 1980. His students have worked on other important cases including McIntyre v. Ohio Elections Commission, which also reached the U.S. Supreme Court.

Former Moritz Law professor Douglas Cole, now Solicitor for the State of Ohio, represented the state.