This column by ACRU Senior Legal Analyst Ken Klukowski was published April 23, 2011 on The Washington Examiner website.

Federal law allows state officials to sue each other in federal court, but it’s unconstitutional to sue a state for refusing to allow misbehaving inmates to attend religious services. Thus said the Supreme Court in two decisions this week, both by a 62 vote. (Justice Elena Kagan was recused from both cases.) And they could affect Obamacare.

Under the doctrine of sovereign immunity, the 11th Amendment makes any state immune from being sued in federal court without the state’s consent. These cases are 11th Amendment cases.

The Supreme Court has long held that, while states cannot be sued, the 11th Amendment allows plaintiffs to sue state officials if those officials violate federal rights, since any official violating the U.S. Constitution is no longer acting for the state, and so can be sued as a private individual.

In the first case, two federal laws offer states money for services for disabled persons. States can use either a state agency or a private contractor to run the program, so long as the entity is free to litigate cases to enforce the program free from control of other state agencies.

Virginia chose an agency to run its program. The Virginia Office for Protection and Advocacy sued Virginia department head James Stewart pursuant to this federal law.

Stewart asserted sovereign immunity, but on April 19 in VOPA v. Stewart, the Supreme Court held 6 to 2 that this case falls within the narrow exception of allowing lawsuits against state officers who violate federal rights.

Chief Justice John Roberts dissented, joined by Justice Samuel Alito, saying that this offends Virginia’s sovereign dignity because it pits the state against itself. “It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the same — a full stomach and a dead body — it is the means of getting there that attracts notice.”

Never to be outdone in provocative imagery, Justice Antonin Scalia rebutted in his majority opinion that Roberts’ analogy doesn’t hold water either with real families or with “governmental siblings” because, “confining one’s child to his room is called grounding, while confining a stranger’s child is called kidnapping.”

In the second case, the Religious Land Use and Institutionalized Persons Act conditions states receiving federal funds on states agreeing not to infringe the religious exercises of prison inmates. In this case, the issue was whether an inmate could sue the state of Texas if a Texas prison didn’t let him attend religious services while he was confined to his cell for misbehavior.

Texas Solicitor General James Ho argued that the 11th Amendment barred this lawsuit because of sovereign immunity, and the inmate’s lawyer (supported by many religious liberty organizations) argued that Texas had waived its immunity by taking the federal money.

In Sossamon v. Texas, on April 20 the Supreme Court sided with Texas and Ho by a 6 to 2 vote. Justice Clarence Thomas wrote for the majority that sovereign immunity is only waived if done so in a clear and unambiguous manner.

That means a state generically agreeing to grant “appropriate relief” under RLUIPA does not amount to waiving its immunity. Justice Sonia Sotomayor dissented, joined by Justice Stephen Breyer.

These cases are relevant to Florida’s multistate Obamacare challenge. Several justices (including Justice Anthony Kennedy, who would be a key vote) suggest these laws might violate the limits of what conditions Congress can attach to funds given to the states under the Constitution’s Spending Clause.

Aside from challenging Obamacare’s “individual mandate,” Florida argues Obamacare’s Medicaid overhaul is unconstitutional for imposing coercive conditions on states. These cases suggest the court might agree.