Posted on by Marc O. DeGirolami

Fourth Circuit Prison Beard Case Remanded

Ordinarily we do not post about too many cases brought by prisoners alleging a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which reinstated in the context of land use and prison disputes the strict scrutiny balancing regime that Employment Division v. Smith had rejected.  Yet it may be of interest for readers to know that these cases are brought quite frequently by prisoners.  The prisoners generally lose.

But the Fourth Circuit yesterday gave a prisoner suing under RLUIPA a win.  Plaintiff is a Sunni Muslim prisoner serving multiple life sentences in Virginia who brought a RLUIPA claim when prison officials refused to let him grow a 1/8 inch beard in compliance with the requirements of his faith.  In 1999, the prison instituted a grooming policy prohibiting the wearing of beards, unless someone obtained a “No Shave Pass” from the prison’s medical authority, in which case they were allowed to sport a 1/4 inch beard.

Writing for a unanimous panel (which included Retired Supreme Court Justice Sandra Day O’Connor and Judge Dennis Shedd), Chief Judge Traxler first found that the grooming policy imposed a substantial burden on the plaintiff’s religious practice.  The Court also held that the state had a compelling interest in the grooming policy — accepting the prison’s claims about security, health, concerns about prisoner identification, and others.

The case was vacated and remanded on the issue of whether the policy was the least restrictive means of advancing the state’s compelling interest.  The plaintiff argued that a religious exemption for a 1/8 inch beard would have been just such a less restrictive means, but the prison officials rejected that solution, reasserting their interests in security and health.  That was deemed an insufficient response by the court: the prison officials’ affidavits did not:

address[] the feasibility of implementing a religious exemption or discuss whether a one-eighth-inch beard would in fact implicate the identified health and safety concerns in the Policy . . . . [T]hey fail to explain how the prison is able to deal with the beards of medically exempt inmates but could not similarly accommodate religious exemptions.    

The key here was that the prison officials failed even to address the possibility of the 1/8 inch beard solution, or to explain why it would not fulfill the aims of the policy.  “That explanation, when it comes, will be afforded due deference.” 

The case is Couch v. Jabe, 2012 U.S. App. LEXIS 9602 (4th Cir. May 11, 2012).

Posted on by Marc O. DeGirolami

Uniao do Vegetal Back In Court

União do Vegetal was the petitioner in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), a case in which the Supreme Court held that the federal government’s seizure of a hallucinogenic tea, hoasca, which was used by the petitioner as part of a religious ritual violated the Religious Freedom Restoration Act.  In the process the Court clarified that RFRA did, in fact, continue to apply against the federal government (it held in City of Boerne v. Flores that it did not apply against the states).

In this complaint, União do Vegetal has now sued the municipality of Santa Fe, bringing claims under the Religious Land Use and Institutionalized Persons Act and the Free Exercise Clause, among others, in response to Santa Fe’s denial of a permit to build a temple on land outside Santa Fe.  The allegation is that the permit was denied because neighbors of the proposed temple site objected on NIMBY grounds.  Of special interest (to me) is the fact that the plaintiff’s free exercise claim alleges unequal (non-neutral) application of the individual assessment exception in Employment Division v. Smith.  (h/t Eric Rassbach)

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Raccuia on RLUIPA and Burdens of Proof

Thomas E. Raccuia (student at Fordham University School of Law) has posted RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases. The abstract follows.

Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects religious land use. RLUIPA’s Equal Terms provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions.

Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases. Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants.  Read more

Posted on by Marc O. DeGirolami

Sidhu on Religious Liberty and Prison Grooming Requirements

A very interesting paper by Dawinder S. Sidhu (New Mexico), Religious Freedom and Inmate Grooming Standards, about the appropriate standard for claims for exemption under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment.  The abstract follows.

This Article explores the Eleventh Circuit’s repeated rejection of challenges, under the First Amendment’s Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), to “restrictive” inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states’ policies, and recent legal developments, that the Eleventh Circuit’s approach in upholding these policies is no longer sustainable.

Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states — including the three states within the Eleventh Circuit — that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the “specific plaintiffs” in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit’s routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny.

Accordingly, I propose the following:

Read more

Posted on by Marc O. DeGirolami

Supreme Court Denials and Holds on Religion Clause Cases

SCOTUS Blog reports (Lyle Denniston) that the Justices denied certiorari on a new Ten Commandments case as well as a RLUIPA case but did nothing yet with respect to the fairly well-known Utah highway cross case out of the 10th Circuit.  Here’s the relevant bit.  (And see my colleague Mark’s post below on the Court’s Ten Commandments display doctrine.)   — MOD

Among the hundreds of cases denied review was one involving a plea for the Court to reopen the question of the constitutionality of posting the Ten Commandments on the wall of a courtroom — an issue brought to it by a state judge in Ohio (DeWeese v. ACLU, 10-1512).  The Court, however, took no immediate action on the constitutionality of placing a Christian cross at the roadside sites of the deaths of on duty of state highway patrolmen (Utah Highway Patrol Association v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297).  In another case involving church-state issues, the Court declined to sort out how far local governments must go, under the federal Religious Land Use [and Institutionalized Persons] Act, to allow churches to build new structures in areas of the city not zoned for such uses (San Leandro v. International Church of the Foursquare Gospel, 11-106).