The issues presented in this appeal are whether Congress exceeded its authority under the Spending Clause of the Constitution or violated either the Establishment Clause or the Tenth Amendment in enacting section 3 of the Religious Land Use and Institutionalized Persons Act (RLUI-PA), which requires state prisons that receive federal funds to refrain from burdening the religious exercise of prisoners. Because Congress properly exercised its spending power by unambiguously conditioning the use of federal funds for state prisons on the related accommodation of the religious exercise of prisoners and that accommodation does not endorsе a religious viewpoint, we conclude that this section of RLUIPA was validly enacted under the Spending Clause and does not violate either the Establishment Clause or the Tenth Amendment.
I. BACKGROUND
Ralph Benning is an inmate in the Georgia prison system. He asserts that he is a “Torah observant Jew” and is “compelled by [his] system of religious belief to eat only kosher food,” “wear a yarmulke at all times,” “observe specific holy days,” and “perform specific rituals.” Benning asked a number of state and prison officials to provide him with a kosher diet and permit him to wear a yarmulke. Prison officials denied Benning’s requests. Benning also filed an internal prison grievance in which hе specifically asserted his rights under RLUIPA. Benning’s grievance failed.
Benning filed this lawsuit against Georgia, the Georgia Department of Corrections (DOC), and several Georgia officials. Georgia moved to dismiss and argued that section 3 of RLUIPA, 42 U.S.C. section 2000cc-l, exceeds the authority of Congress under the Spending and Commerce Clauses, and violates the Tenth Amendment and the Establishment Clause. The United States intervened to defend the constitutionality of RLUIPA.
The district court dismissed Benning’s claims against the individual defendants, but concluded that RLUIPA does not violate the Establishment Clause and denied the motion to dismiss with regard to Georgia and the DOC. The district court certified its denial of the motion to dismiss for immediate appeal, under Federal Rule of Civil Procedure 54(b), and alternatively certified its ruling for interlocutory appeal under 28 U.S.C. section 1292(b). We granted the petition by Georgia for permission to appeal under section 1292(b).
II. STANDARD OF REVIEW
We review
de novo
the constitutionality of an act of Congress.
Gulf Power Co. v. United States,
*1304 A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself. The general rule is that for a facial challenge to a legislative enactment to succeed, the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that a legislative act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid. This heavy burden makes such an attack the most difficult challenge to mount successfully against an enactment.
Horton v. City of St. Augustine,
III. DISCUSSION
Section 3 of RLUIPA applies strict scrutiny to government actions that substantially burden the religious exercise of institutionalized persons:
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, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
This section applies in any case in which—
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.
42 U.S.C. § 2000cc-1. Although we upheld section 2, the land use section of RLUIPA, 42 U.S.C. section 2000cc(a)(1) and (b), as constitutional in
Midrash Sephardi Inc. v. Town of Surfside,
Four of our sister circuits have considered the constitutionality of this section, and three have upheld it. The Seventh and Ninth Circuits have concluded that section 3 of RLUIPA is a valid exercise of the spending power of Congress and does not violate the Establishment Clause or the Tenth Amendment.
Charles v. Verhagen,
Georgia argues that Congress, in enacting section 3 of RLUIPA, exceeded its authority under Article I, section 8, and, alternatively, violated either the First Amendment or the Tenth Amendment. Although both Benning and the United States argue that Congress acted within its аuthority under both the Spending Clause and the Commerce Clause, we need not address both arguments so long as Congress validly exercised either source of authority. We address the authority of Congress under the Spending Clause before turning to the objections Georgia raises under both the First and Tenth Amendments.
*1305 A. Congress Properly Exercised Its Spending Power.
The Constitution empowers Congress to "lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." U.S. Const. Art. I, § 8, cl. 1. It is well-settled that "[i]ncident to this power, Congress may attach conditions on the receipt of federal funds." South Dakota v. Dole,
The Supreme Court has identified four restrictions on the spending power of Congress. First, conditions attached by Congress on the expenditure of federal funds must promote the general welfare, and not be in the service of narrow and private interests. Id. Second, conditions on the state receipt of federal funds must be unambiguous, and enable "the States to exercise their choice knowingly, cognizant of the consequences of their participation." Id. Third, the Supreme Court has "suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." Id. (internal quotation marks and citations omitted). Fourth, no condition attached to receipt of federal funds may violate other provisions of the Constitution. Id. at 208,
1. The Conditions of RLUIPA Are Unambiguous.
Congress may condition the expenditures of federal funds on the furtherance of federal objectives, but when the recipient of those funds is a state the conditions imposed by Congress must be unambiguous:
[L]egislation enаcted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.
Pennhurst State Sch. & Hosp. v. Halderman,
Georgia argues that the conditions of RLUIPA are ambiguous, contrary to Penrthurst, in four ways: (1) RLUIPA does not put states on clear notice that, by accepting federal funds, they waive immunity to suits brought under the act; (2) RLUIPA does not clearly inform states that they have an option whether to accept or reject federal funds; (3) federal grants do not mention the requirements that RLTJIPA will impose on states accepting the grants; and (4) the standard of least restrictive means is too ambiguous to allow a state an informed choice. These arguments fail.
Congress unambiguously required states to waive their sovereign immunity from suits filed by prisoners to enforce RLUIPA. Section 2000cc-2(a) provides that "[a] persоn may assert a violation of this chapter as a claim or defense in a
*1306
judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). The statutory definition of government specifically includes states and state agencies. 42 U.S.C. § 2000cc-5(4)(A). Georgia was on clear notice that by accepting federal funds for its prisons, Georgia waived its immunity from suit under RLUIPA. "Where Congress has unambiguously conditioned the receipt of federal funds on a waiver of immunity, [our decisions do] not leave open the possibility that a state can continue to accept federal funds without knowingly waiving its immunity." Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,
Congress need not inform the states of their self-evident ability to decline federal funds nor include within each federal grant a list of all accompanying conditions. It is sufficient for the text of RLUIPA to link unambiguously its conditions to the receipt of federal funds and define those conditions clearly enough for the states to make an informed choice. Pennhurst,
The standard of least restrictive means is far from ambiguous in informing states of their responsibilities when they receive federal funds. RLUIPA forbids the states from imposing substantial burdens on religious exercise absent a compelling government interest accomplished by the least restrictive means necessary to serve that interest. This standard is not new to Georgia or any state. In Midrash, we observed that RLUIPA reanimates the strict scrutiny long applied to the states in disputes regarding the free exercise of religion both before and after Employment Division v. Smith,
The Supreme Court has explained that so long as a spending condition has a clear and actionable prohibition of discrimination, it does not matter that the manner of that discrimination can vary widely. In Davis v. Monroe County Board of Education, for example, the Court upheld the prohibition of sexual harassment in schools that receive federal funds, under Title IX, and its corresponding right of action, even though "the level of actionable `harassment' . . `depends on a constellation of surrounding circumstances, expectations, and relationships,' including but not limited to, the ages of the harasser and the victim and the number of individuals involved~. ."
Georgia erroneously relies on Pe'nnhurst to support its argument that RLUIPA is ambiguous. In Fertnhurst, a federal suit failed when the plaintiffs argued that a federal law that declared "a right to appro
*1307
priate treatment" for certain patients "provided in the setting that is least restrictive of the [patient's] individuаl liberty" created a substantive right against the states. Pennhurst,
Our sister circuits that have considered this question reached the same conclusion. In Mayweathers, the Ninth Circuit stated, "Congress is not required to list every factual instance in which a state will fail to comply with a condition. Such specificity would prove too onerous, and, perhaps, impossible. Congress must, however, make the existence of the condition itself-in exchange for the receipt of federal funds-explicitly obvious."
2. RLUIPA is Rationally Related to a Federal Interest.
Georgia erroneously argues that the federal grants for its prisons are unrelated to the objectives of RLUIPA. Georgia relies on the statement in Dole that the Court has "suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular nation-, al projects or programs."
Congress has every right to ensure that the state prisons that accept federal funds respect the religious freedom of prisoners and promote their rehabilitation:
Congress has a strong interest in making certain that federal funds do not subsidize conduct that infringes individual liberties, such as the free practice of one's religion. The federal government also has a strong interest in monitoring the treatment of fеderal inmates housed in state prisons and in contributing to their rehabilitation. Congress may allocate federal funds freely, then, to protect the free exercise of religion and to promote rehabilitation. If the Supreme Court has in fact imposed a low-threshold relatedness test, RLUIPA satisfies
Mayweathers,
The warning in Dole that Spending Clause legislation "might be illegitimate" if it is "unrelated" to the purpose of the federal spending program,
Georgia fails in its argument that highway safety, the federal interest in
Dole,
was tied more closely to the funding condition that states raise their legal drinking age to 21 than the funding of prisons is tied to the objectives of RLUIPA. The connection between raising the drinking age and highway funds is no more related than the connection between accommodating the religious exercise of prisoners and correctional funds.
Mayweathers,
Georgia аlso wrongly argues that the extensive conditions imposed by RLUIPA are not in proportion to the small amount of federal funds dedicated to state correctional systems. Georgia relies on
Rust v.
Sullivan,
The Seventh Circuit also correctly explained in Charles that there is no standard of proportionality for spending legis-látion:
Nothing within Sрending Clause jurisprudence, or RLUIPA for that matter, suggests that States are bound by the conditional grant of federal money only if the State receives or derives a certain percentage ... of its budget from federal funds. If a State wishes to receive any federal funding, it must accept the related, unambiguous conditions in their entirety.
Id. Likewise, Georgia cannot accept federal funds and then attempt to avoid their accompanying conditions by arguing that the conditions are disproportionate in scope.
B. The Proper Use of Spending Power Does Not Violate the Tenth Amendment.
Georgia next erroneously argues that the Tenth Amendmеnt provides an independent constitutional bar because RLUIPA interferes with a core state function of administering prisons. If the enactment of RLUIPA is within an enumerated power of Congress, however, the Tenth Amendment does not apply.
Mi-drash,
Georgia alternatively argues that RLUI-PA invades the regulatory purview of states so extensively as to violate the Tenth Amendment, but this argument is undermined by our recent precedent. In
Midrash,
this Court held that RLUIPA does not violate the Tenth Amendment. Although RLUIPA “may preempt laws that discriminate against or exclude religious institutions entirely, it leaves individ
*1309
ual states free to eliminate the discrimination in any way they choose, so long as the discrimination is actually eliminated." Midrash,
C. RLUIPA Does Not Violate the Establishment Clanse.
Georgia argues that RLUIPA violates the Establishment Clause, under the three-part test established in Lemon v. Kurtzman,
1. RLUIPA Has a Secular Purpose.
The first part of the Lemon inquiry is whether the law in question has a secular purpose. The Supreme Court has explained that a secular purpose need not be hostile or even unrelated to religion:
This does not mean that the law's purpose must be unrelated to religion-that would amount to a requirement that the government show a callous indifference to religious groups, and the Establishment Clause has never beеn so interpreted. Rather, Lemon `s "purpose" requirement aims at preventing the relevant government decisionmaker-in this case, Congress-from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
Like section 702 of the Civil Rights Act, RLUIPA advances the secular purpose of "protecting the free exercise of religion from unnecessary government interference." 146 Cong. Rec. E1234, E1235 (daily ed. July 14, 2000) (statement of Rep. Canady); see also Madison, 355 F.3d at
*1310
317;
Mayweathers,
2. RLUIPA Does Not Advance or Inhibit Religion.
Georgia argues that RLUIPA violates the second part of Lemon by impermissi-bly advancing religion through endorsement in two ways: first, by providing unique advantages to religious prisoners solely on account of their religion, and, second, by imposing improper burdens on third parties. Neither argument is persuasive.
a. RLUIPA Does Not Improperly Provide Religion Unique Advantages.
Georgia érroneously argues that by affording heightened protection for religious exercise relative to other fundamental rights, RLUIPA conveys an impermissible message of preference for religion in violation of the admonition of the Supreme Court that “government may not favor religious belief over disbelief.’'
County of Allegheny v. ACLU,
Interpreting the Establishment Clausе to require a rigid symmetry of protection for all fundamental rights would cut a broad swath through a forest of government programs and protections of religious exercise. State and federal funds provide government chaplains for Congress and state legislatures, the armed forces, and prisons.
See, e.g., Marsh v. Chambers,
Furthermore, this kind of argument was squarely rejected by the Court in Amos. The Court explained that, when the government exempted religious emрloyers from the prohibition of discrimination based on religion, the government was not bound to provide a corresponding benefit to secular employers:
[We have] never indicated that statutes that give special consideration to religious groups are per se invalid. That would run contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause. Where, as here, government acts with the purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption come packaged with benefits to seculаr entities.
Amos,
We disagree with the Sixth Circuit, which held that the heightened protection granted to religious exercise by RLUIPA “ ‘violates the basic requirement of neutrality embodied in the Establishment Clause.’ ”
Cutter,
Georgia also attempts to distinguish Amos by arguing that, under RLUIPA, the government injects itself into religion instead of withdrawing from it. This argument ignores that state prisons, which Georgia concedes employ chaplains and provide times and places for religious worship, are already necessarily involved in the religious exercises of prisoners, as in all other areas of their lives. Invalidating RLUIPA would not excise the state from the religious exercise of prisoners.
We recognize that the prison environment poses serious challenges to officials responsible for complying with RLUIPA, but these challenges “speak more to the wisdom of the law and to the disincentives for states to assume their RLUIPA obligations than to RLUIPA’s validity under the Establishment Clause.”
Madison,
b. RLUIPA Does Not Unduly Burden Georgia.
Georgia argues that RLUIPA imposes on third parties costs and burdens that violate the Establishment Clause. Georgia cites
Estate of Thornton v. Caldor, Inc.,
Georgia argues that RLUIPA will impose significant expenses on the DOC and prevent the DOC from providing other services, but if Georgia finds compliance with RLUIPA impractical, Georgia can refuse federal funds. The Fourth Circuit distinguished the statute in
Caldor
from RLUIPA by explaining that
“Caldor
concerned an unfunded mandate imposed on private employers to lift privately-imposed burdens on the religious exercise of employees. Here [the state] has voluntarily committed itself to lifting government-imposed burdens on the religious exercise of publicly institutionalized persons in exchange for federal correctional funds.”
Madison,
Georgia also erroneously argues that non-religious prisoners and prison staff will suffer substantial burdens when religious accommodations exempt certain prisoners from rules designed to serve health and safety concerns. If a requested exemption from health or safety rules is so serious as to place members of the prison community at risk, RLUIPA allows Georgia to deny the exemption so long as the challenged rule serves a compelling interest, such as prison safety, and the challenged rule is the least restrictive means of serving that interest. History shows that strict scrutiny does not automatically invalidate all substantial burdens on religion, especially in prisons; under the same stan *1313 dard imposed by the Religious Freedom Restoration Act, the predecessor to RLUI-PA, only a small percentage of prisoners’ claims were successful. See Ira C. Lupu, Why the Congress was Wrong and the Court was Right-Reflections on City of Boerne v. Flores, 39 Wm. & Mary L.Rev. 793, 802-03 (1998). RLUIPA does not impose costs on states without their consent, and RLUIPA allows states to satisfy compelling interests, such as prison safety.
3. RLUIPA Does Not Entangle Excessively Georgia With Religion.
Georgia argues that RLUIPA excessively entangles the government with religion by requiring state prisons to “assess the validity of each religious request no matter how trite, expensive or disruptive” and “question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” but this argument fails for at least two reasons. First, the text of RLUIPA defeats this argument, as it defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000ec-5(7)(A). The Fourth Circuit recognized that this provision “mitigates any dangers that entanglement may result from administrative review of good-faith religious belief.”
Madison,
Although Georgia urges us to hold Ben-ning’s requested kosher diet unconstitutional, the merits of Benning’s complaint are not at issue in this interlocutory appeal. The district court has not yet held that RLUIPA compels Georgia to provide Benning with a kosher diet or allow him to wear a yarmulke, and we do not so hold. This issue and all remaining issues must be determined by the district court on remand.
IV. CONCLUSION
Because section 3 of RLUIPA was validly enacted under the Spending Clause and does not violate either the Tenth Amendment or the Establishment Clause of the First Amendment, the judgment of the district court is
AFFIRMED.