The first distortion by the United States Supreme Court in its Cutter v. Wilkinson decision was to equate congressional law with the supreme law of the land. RLUIPA (Religious Land Use and Institutionalized Persons Act), SECTION 3, rewrites the Free Exercise Clause as follows: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution." Well, we sure would not want prison to be a burden to inmates.

The second distortion was that the state must accommodate religion exercises or, at least, not be a substantial burden. As described by the unanimous court, prisoners accused the state of Ohio of "failing to accommodate ... exercise of their ... religions in a variety of ways." Well, we sure want prisons to be accommodating.

Which is why the Supreme Court held, in its third distortion: "Section 3 of RLUIPA, on its face, qualifies as a permissible accommodation that is not barred by the Establishment Clause. (a) Foremost, 3 is compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise." Well, how can you argue with a Court which adds the words "accommodation" and "exceptional government-created burdens" to the wording of the First Amendment.

To the contrary, here is what a unanimous Davis v. Beason Court said in 1890: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices ... because of his religious belief? To permit this would ... permit every citizen to become a law unto himself (Davis v. Beason, 133 U.S. 333, 344). Obviously, the current Court never cited the precedent of Davis.

By the way, this is what the attorney Thomas Jefferson said in his 1802 (after the Constitution was adopted) letter to the Danbury Baptists: "the legitimate powers of government reach actions only, and not opinions, ... convinced he [man] has no natural right in opposition to his social duties." Well, when we put persons in prison, we impose social duties, which restrict rights.

The government of the United States is under no constitutional obligation, except in the confused mind of the current nine Justices, to accommodate anything in respect to religion, except opinion. The Constitution gives no unlimited right to the exercise of religion, only to opinion.

Unfortunately, the state of Ohio was its own worst enemy because Ohio wanted it both ways, which the Court plainly pointed out: Ohio objected to RLUIPA on the grounds that it "impermissibly advances religion," which it does, but "Ohio ... recognized religions by providing chaplains and allowing worship services." Ohio's hands were dirty. Ohio was already advancing religion and accommodating religion by "providing chaplains."

The Ohio Court and the Supreme Court failed to point out what the "Father of the Constitution" said about official chaplains: "the establishment of the chaplainship to Congress is a palpable violation of ... constitutional principles" ("Detached Memoranda"). Well, if establishment of a chaplain for Congress is unconstitutional, such an establishment is also unconstitutional for convicts. The current Court ignored James Madisonšs "Detached Memoranda," but his essay was not ignored by the 1947 Everson v. Board of Education Court (see its notes 12 and 13). However, since the Lemon v. Kurtzman decision, preceding precedent has not meant much.

The current Court has never made a distinction between the different words "prohibiting" and "abridging," as clearly intended in the religion commandments of the First Amendment. Abridging means reducing and applies to speech, press, peaceable assembly, and petition, not to the exercise of religion.

Prohibiting means totally and is the constitutional word which applies to the exercise of religion. In other words, the joint Senate-House committee which drafted the First Amendment (James Madison was cochair of that committee) does not say the exercise of religion cannot be reduced (abridged). The committee said the exercise of religion cannot be totally prohibited, which is what the word "prohibiting" means. Understand the intent of the Constitution by accepting its words as written.

Further, the current Court and Justice Thomas both define the religion commandments in words of the constitutionally nonexistent "church and state" terminology. If "separationist" attornies would learn to properly frame the constitutional argument, they might start winning. It is "religion" which is not to be established by law or Congress or government at any level (thanks to the Fourteenth Amendment), including federal, state, county, city, and school district institutions.

Just because Congress passes a law does not make it constitutional. (In 1811 President James Madison vetoed two religion laws passed by Congress.) To the contrary, making a law (RLUIPA) in respect to establishment of "religion" is what the Congress is particularly prohibited from doing. On its face, RLUIPA palpably promotes, advances, establishes "religion" via a law passed by Congress. Congress has no constitutional right to make such a law.

Who is responsible for the constitutional failure of the Court to recognize the words of the Constitution as written? Of course, the current Justices, who would not recognize a violation of the Establishment Clause even if James Madison were to rise up from his grave (in which he recently rolled over) to explain his plainly written words to them.

Also, as much at fault are the inept attornies and organizations who took the lead in arguing Cutter before the high court and did not frame the argument in unequivocal constitutional "religion" terms; they allowed the Court to think of a "church".

The word "accommodation" is used often by Justice Ginsburg in her decision, but it is not in the Constitution's religion commandments. "No religious test" means no test, and "no law" respecting an establishment of religion means no law. What part of "no law" does Congress and the Court not understand? RLUIPA should have been on its face declared unconstitutional.

The significant writings of James Madison, AFTER the Constitution was adopted, were ignored by the attornies who argued the case before the Court. Madison is an authoritative source for understanding the original intent of the words of the Constitution, after it became the supreme law of the land. Madison personally helped draft the religion commandments in both the Constitution and the First Amendment.