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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
WISCONSIN
TAYR KILAAB AL GHASHIYAH (KHAN)
formerly known as JOHN CASTEEL,
Plaintiff,
and UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
V
.DEPARTMENT OF CORRECTIONS
OF THE STATE OF WISCONSIN, et
al.,
Defendants.
Case No. 01-C-10
March 4, 2003, Decided
March 4, 2003, Filed
DECISION AND ORDER
Plaintiff
Tayr Kilaab al Ghashiyah (Khan), a Muslim formerly known as John [*1018]Casteel
and currently a prisoner at the Green Bay Correctional Institution (GBCI),
filed this pro se civil rights action under 42 U.S.C. § 1983 against the
Wisconsin Department of Corrections (DOC) and various corrections officials and
employees. Following a screening of the complaint pursuant to 28 U.S.C. §
1915A, plaintiff was allowed to proceed on claims that defendants violated his
rights under the Free Exercise Clause of the First Amendment and the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a),
et. seq., by failing to accommodate his religious dietary requirements; denying
him the use and possession of candles, incense, oils, and religious talismans;
and prohibiting him from using his legal (Muslim) name.
Defendants
have moved to dismiss, arguing that (1) RLUIPA is unconstitutional, (2) the
deprivation of incendiary materials such as candles, incense, and oil does not
violate the First Amendment, and (3) the individual defendants are entitled to
qualified immunity. Because the constitutionality of a federal statute had been
challenged, I allowed the United States of America to intervene in defense of
RLUIPA. The issues have been fully briefed and are ready for decision.
I. CONSTITUTIONALITY OF RLUIPA
Defendants
contend that RLUIPA is unconstitutional because it violates the separation of
powers doctrine, exceeds Congress's enforcement power under Section Five of the
Fourteenth Amendment, is not applicable to state prisoners' claims against
state prison officials, violates the Establishment Clause, and is not a valid
exercise of Congress's power under the Commerce and Spending Clauses. The
United States counters that RLUIPA is a constitutional exercise of Congress's
power under the Spending and Commerce Clauses, and that it does not violate any
other constitutional provision or doctrine.
Before turning to the
specific arguments, it is appropriate to set forth the events leading to the
passage of RLUIPA, because the reasons for its enactment bear directly on its
constitutionality.
A. Background of RLUIPA
In 1990, the Supreme Court held, in Employment Div., Dep't of
Human Res. of Oregon v. Smith, 494 U.S. 872, 879, 108 L. Ed. 2d 876, 110 S. Ct.
1595 (1990), that "the right of free exercise does not relieve an
individual of the obligation to comply with a 'valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).'" Id. at 879 (quoting United
States v. Lee, 455 U.S. 252, 263 n.3, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1983)
(Stevens, J., concurring)).
The government's ability to
enforce generally applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, cannot depend on measuring
the effects of a governmental action on a religious objector's spiritual
development. To make an individual's obligation to obey such a law contingent
upon the law's coincidence with his religious beliefs, except where the State's
interest is compelling -- permitting him, by virtue of his beliefs, to become a
law unto himself -- contradicts both constitutional tradition and common sense.
Id. at 885 (internal
quotation marks and citations omitted).
Prior to Smith, the Supreme Court had held that laws substantially affecting the practice of religion were subject to strict constitutional scrutiny. See Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (invalidating compulsory [*1019] school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school); Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) (reversing denial of unemployment compensation benefits to employee terminated for refusing to work on her religious Sabbath day). n1 Under the Sherbert standard, state actions that substantially burdened a religious practice had to be justified by a compelling governmental interest. 374 U.S. at 402-03. In Smith, the Court rejected this test, holding "that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." City of Boerne v. Flores, 521 U.S. 507, 514, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997).
In response to Smith, Congress enacted the Religious Freedom
Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq., pursuant to its
enforcement powers under Section Five of the Fourteenth Amendment. n2 RFRA's
stated purposes were:
(1) to restore the
compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10
L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32
L. Ed. 2d 15, 92 S. Ct. 1526 (1972) and to guarantee its application in all
cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or
defense to persons whose religious exercise is substantially burdened by
government.
42 U.S.C. § 2000bb(b). RFRA
prohibited government from substantially burdening a person's exercise of
religion, even if the burden resulted from a rule of general applicability,
unless the government could demonstrate that the burden was imposed in
furtherance of a compelling governmental interest and was the least restrictive
means of furthering that interest. 42 U.S.C. § 2000bb-1.
Four years later, the Supreme Court responded to this
legislative effort to overrule Smith by striking down RFRA as an act in excess
of congressional power under § 5. City of Boerne, 521 U.S. at 536. Congress's power under § 5 is
"remedial" and extends only to enforcing the provisions of the
Fourteenth Amendment, the Court noted; Congress may not through legislation
alter the meaning of the substantive rights guaranteed by the Amendment. Id. at
518-19. But, the Court concluded, that is exactly what Congress tried to do
with RFRA, effecting a substantive change in the meaning of the Free Exercise
Clause as construed by the Court in Smith.521 U.S. at 532-36.
In a concurring opinion, Justice Stevens stated:
In my opinion, the Religious Freedom Restoration Act of 1993
(RFRA) is a "law respecting an establishment of religion" that
violates the First Amendment to the Constitution.[*1020]
If the historic landmark on the hill in Boerne happened to be a
museum or an art gallery owned by an atheist, it would not be eligible for an
exemption from the city ordinances that forbid an enlargement of the structure.
Because the landmark is owned by the Catholic Church, it is claimed that RFRA
gives its owner a federal statutory entitlement to an exemption from a
generally applicable, neutral civil law. Whether the Church would actually
prevail under the statute or not, the statute has provided the Church with a
legal weapon that no atheist or agnostic can obtain. This governmental
preference for religion, as opposed to irreligion, is forbidden by the First
Amendment. Wallace v. Jaffree, 472 U.S. 38, 52-55, 86 L. Ed. 2d 29, 105 S. Ct.
2479 (1985).
Id. at 536-37 (Stevens, J.,
concurring).
Congress then passed RLUIPA in 2000, n3 limiting the scope of
the Act's coverage but using the same strict scrutiny standard as in RFRA. The
Act provides in relevant part:
(a) General rule
No government shall impose a
substantial burden on the religious exercise of a person residing in or
confined to an institution, as defined in section 1997 of this title, 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.
42 U.S.C. § 2000cc-1(a). n4
If a plaintiff produces
prima facie evidence to support a claim alleging a violation of the Free
Exercise Clause or a violation of section 2 [42 USCS § 2000cc], the government
shall bear the burden of persuasion on any element of the claim, except that
the plaintiff shall bear the burden of persuasion on whether the law (including
a regulation) or government practice that is challenged by the claim
substantially burdens the plaintiff's exercise of religion.
42 U.S.C. § 2000cc-2(b).
Congress used its power under the Commerce and Spending Clauses
to enact RLUIPA. See 42 U.S.C. § 2000cc-1(b). The Act is to be construed
broadly to favor the protection of inmates' religious exercise. 42 U.S.C. §
2000cc-3(g).
A number of courts have addressed the issue of whether RLUIPA is
constitutional; most have held that it is. E.g., Mayweathers v. Newland, 314
F.3d 1062 (9th Cir. 2002); Johnson v. Martin, 223 F. Supp. 2d 820 (W.D. Mich.
2002); Gerhardt [*1021] v. Lazaroff, 221 F. Supp. 2d 827 (S.D. Ohio 2002);
Charles v. Verhagen, 220 F. Supp. 2d 955 (W.D. Wis. 2002). However, one court
has recently held that the section of RLUIPA governing the claims of prison
inmates, 42 U.S.C. § 2000cc-1, violates the Establishment Clause. Madison v.
Riter, No. 01-CV-596, 240 F. Supp. 2d 566, 2003 U.S. Dist. Lexis 1094 (W.D. Va.
Jan. 23, 2003). Because the Establishment Clause challenge is the most
significant of defendants' challenges to RLUIPA, particularly in light of
Justice Stevens's concurrence in City of Boerne, it is appropriate to begin my
analysis of the constitutionality of RLUIPA by deciding whether it violates the
Establishment Clause.
B. Establishment Clause
Challenge
1. Effect of Sasnett v. Sullivan
As an
initial matter, I must determine whether the issue of RLUIPA's
constitutionality under the Establishment Clause is foreclosed in this District
by the Seventh Circuit's decision in Sasnett v. Sullivan, 91 F.3d 1018 (7th
Cir. 1996), vacated by Sullivan v. Sasnett, 521 U.S. 1114, 138 L. Ed. 2d 1007,
117 S. Ct. 2502 (1997). In Sasnett, the court stated: "We defer to the
Fifth Circuit's analysis [in Flores v. City of Boerne] of why [RFRA] also does
not violate the separation of powers or the establishment clause of the First
Amendment." Id. at 1022. In Flores v. City of Boerne, 73 F.3d 1352 (5th
Cir. 1996), rev'd, City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624,
117 S. Ct. 2157 (1997), the Fifth Circuit found, with little analysis, that
RFRA did not violate the Establishment Clause. The Seventh Circuit's Sasnett
decision was vacated by the Supreme Court following the issuance of City of
Boerne, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157.
I cannot
conclude that a vacated Seventh Circuit opinion considering a different statute
that "defers" to the decision of another court which was later
reversed is dispositive of this issue. Aside from the fact that both circuit
court decisions were extinguished by the Supreme Court, Sasnett did not hold
that RFRA comported with the Establishment Clause: rather, it deferred without
explanation to an opinion that did. I agree with Judge Crabb's statement in
Charles, 220 F. Supp. 2d at 967, that an Establishment Clause challenge to
RLUIPA may be an "uphill battle" in light of Sasnett, but it is not a
lost cause. I therefore proceed to the
merits of defendants' challenge.
2. Analytical Approach to an Establishment Clause Challenge
The
Establishment Clause provides that "Congress shall make no law respecting
an establishment of religion." U.S. Const. amend. I, cl. 1. The Clause
prevents the government from endorsing or affiliating with any particular
religious doctrine or organization, expressing a preference between religions,
or promoting religion generally. See, e.g., Bd. of Educ. of Kiryas Joel
Village Sch. Dist. v. Grumet, 512 U.S. 687, 703, 129 L. Ed. 2d 546, 114 S. Ct.
2481 (1994) (stating that "a principle at the heart of the Establishment
Clause [is] that government should not prefer one religion to another, or
religion to irreligion."); Texas Monthly, Inc. v. Bullock, 489 U.S. 1,
8-9, 103 L. Ed. 2d 1, 109 S. Ct. 890 (1989) (plurality opinion) (internal
quotation marks omitted) ("It is part of our settled jurisprudence that
the Establishment Clause prohibits government from abandoning secular purposes
in order to put an imprimatur on one religion, or on religion as such, or to
favor the adherents of any sect or religious organization."); Epperson v.
Arkansas, 393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968) ("The
First Amendment mandates governmental neutrality between [different] religion[s],
and between religion and nonreligion."); Everson v. Bd. of Educ. of Ewing
Tp., 330 U.S. 1, 15, 91 L. Ed. 711, 67 S. Ct. 504 [*1022] (1947) (stating that
government may not "aid one religion, aid all religions, or prefer one
religion over another").
The Supreme
Court has formulated a three-pronged
test to determine whether a statute complies with the Establishment Clause.
Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). Under
the test, a statute is permissible if (1) it has a secular legislative purpose,
(2) its principal or primary effect neither advances nor inhibits religion, and
(3) it does not create excessive entanglement between government and religion.
Id. at 612-13. The challenged practice or law violates the Establishment Clause
if it fails to satisfy any of these prongs. Edwards v. Aguillard, 482 U.S. 578,
583, 96 L. Ed. 2d 510, 107 S. Ct. 2573
(1987).
While the Court has at times modified the Lemon test, see, e.g.,
Agostini v. Felton, 521 U.S. 203, 222-23, 138 L. Ed. 2d 391, 117 S. Ct. 1997
(1997) (analyzing "entanglement" as an aspect of the
"effect" inquiry); County of Allegheny v. ACLU, 492 U.S. 573, 592,
106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989) (articulating the first two prongs of
the Lemon inquiry in terms of an "endorsement test"); Lemon "remains the prevailing
analytical tool for the analysis of Establishment Clause claims." Books v.
City of Elkhart, Indiana, 235 F.3d 292, 301 (7th Cir. 2000). Accordingly, I
will apply the Lemon factors in determining whether RLUIPA violates the
Establishment Clause.
3. Application of the Lemon Test
Defendants
argue that RLUIPA's plain purpose is to single out religious practice as
congressionally favored activity, that RLUIPA has the effect of elevating the
exercise of religion over nonreligious activities in prison, and that RLUIPA
creates excessive entanglement between government and religion by forcing every
prison to become an expert on every religion and every inmate's religious
exercise.
The United States maintains
that RLUIPA is a permissible effort by government to allow, without promoting,
the practice of religion unmolested by the state. It contends that RLUIPA
satisfies the three-part Lemon test because it has a legitimate secular purpose
- to protect the free exercise of religion from unnecessary governmental
interference, has a primary effect that neither advances nor inhibits religion, and does not entangle the state
in an unlawful fostering of religion. Instead, by reducing governmental
interference with religious exercise, the United States contends that RLUIPA
achieves a more complete separation of church and state.
a. Purpose of RLUIPA
The first
prong of the Lemon test "'asks whether the government's actual purpose is
to endorse or disapprove of religion.'" Edwards, 482 U.S. at 583 (quoting
Lynch v. Donnelly, 465 U.S. 668, 690, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984)
(O'Connor, J., concurring)). The secular purpose requirement aims at preventing
government "from abandoning neutrality and acting with the intent of promoting a
particular point of view in religious matters." Corp. of the Presiding
Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.
327, 335, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987). A statute that is motivated
in part by a religious purpose may satisfy this criterion, but "the First
Amendment requires that a statute must be invalidated if it is entirely
motivated by a purpose to advance religion." Wallace v. Jaffree, 472 U.S.
38, 56, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985).
However,
the Court has acknowledged "that
the government may (and sometimes must) accommodate religious practices
and that it may do so without violating the [*1023] Establishment Clause."
Amos, 483 U.S. at 334. In considering religious accommodation statutes under the first prong of
the Lemon test, the Court has noted that "it is a permissible legislative
purpose to alleviate significant governmental interference with the ability of
religious organizations to define and carry out their religious missions."
Id. at 335. The Constitution does "not require the government to be
oblivious to impositions that legitimate exercises of state power may place on
religious belief and practice. Rather,
there is ample room under the Establishment Clause for benevolent neutrality
which will permit religious exercise to exist without sponsorship and without
interference." Grumet, 512 U.S. at 705 (internal citation and quotation
marks omitted).
The United
States contends that RLUIPA was designed to protect the free exercise of
religion from unnecessary governmental interference and, thus, is a permissible
accommodation statute. RLUIPA's purpose is described in the Congressional Record:
Prison officials sometimes impose frivolous or arbitrary rules. Whether
from indifference, ignorance, bigotry, or lack of resources, some institutions
restrict religious liberty in egregious and unnecessary ways ... This Act can
provide a remedy and a neutral forum for such cases if they fall within the
reach of the Spending Clause or the Commerce Clause.
146 Cong Rec. at S7775 (quoted in Intervenor's Mem. in Support of the
Constitutionality of RLUIPA, Ex. 5). RLUIPA also provides that, "Nothing in this chapter shall be
construed to affect, interpret, or in any way address that portion of the First
Amendment to the Constitution prohibiting laws respecting an establishment of
religion." 42 U.S.C. § 2000cc-4.
Thus, at
first blush it may appear that RLUIPA has a valid purpose under the
Establishment Clause as construed in Amos -- it seeks to accommodate religion
by removing governmentally imposed burdens on its exercise. However, the
sweeping nature of the statute far surpasses that of any accommodation statute
that the Supreme Court has previously sustained. Thus, I must look closely at whether, based on the
Court's accommodation cases, RLUIPA can be said to have a secular purpose.
The leading case on religious
accommodation is Amos. There, the Court upheld against an Establishment Clause
challenge a statutory exemption for religious organizations from Title VII's
prohibition on religious discrimination. 483 U.S. at 336-39. As noted, the
Court found that the statute satisfied Lemon's first prong by declaring that
"it is a permissible legislative purpose to alleviate significant
governmental interference with the ability of religious organizations to define
and carry out their religious missions." Id. at 335. The Court cited no
authority for this proposition, which seems at odds with Lemon's purpose inquiry,
n5 but then went on to offer an explanation for its acceptance of this
particular accommodation that squared with the balance of the Lemon test.
The Court
noted that, absent an exemption from Title VII's general prohibition on
religious discrimination, secular courts would be called upon to interfere in
the internal workings of religious organizations. Id. at 336. Moreover,
"fear of potential liability might [*1024] affect the way an organization
carried out what it understood to be its religious mission." Id. In other
words, without the exemption, "government would become entangled with
religion[, making] an exemption necessary to avoid an Establishment Clause
violation." Marci A. Hamilton, The Religious Freedom Restoration Act is
Unconstitutional, Period, 1 U. Pa. J. Const. L. 1, 13 (1998) (emphasis added).
n6
Properly understood, then,
Amos cannot be said to validate all legislation enacted with the purpose of
accommodating or exempting religion from general laws, as later decisions have
made clear. E.g., Texas Monthly, 489 U.S. at 25 (striking down exemption for
religious periodicals from state sales tax). n7 Nor can Amos be said to provide
a definitive answer to whether RLUIPA complies with the Lemon test. Professor
Hamilton's observation concerning RFRA is every bit as applicable to RLUIPA on
this issue:
Comparing RFRA to Amos is like comparing apples to oranges. RFRA,
unlike Amos, does not exempt religion from regulation for the purpose of
avoiding an Establishment Clause violation. Rather, RFRA institutes a standard
of judicial review in every case which implicates religious conduct. In turn,
this standard of review creates incentives for government to monitor, watch and
keep track of the theological tenets of every religion in society. If government
is to avoid the costly litigation attendant upon a multiplicity of RFRA claims,
it must scrutinize every law that it passes with the interests of every
religion in mind. It is not enough to be neutral. Government must also be
vigilant for religion. By instituting an extremely demanding standard of
judicial review applicable in every case which implicates religious conduct,
RFRA creates incentives for government to become a theological overseer.
RFRA induces the very sort of entanglement that the law in Amos
avoided. Amos did not involve a law that exempted religion from every law in
the country. Rather, it permitted the exemption of religious employers from a
particular requirement in prescribed
circumstances. The law in Amos lacked RFRA's vast scope; therefore, Amos cannot
dictate how RFRA fares under the Establishment Clause.
Hamilton, supra, at 13-14 (footnote omitted); see also Idleman, supra,
at 294 (stating that RFRA "is not
really an accommodation statute at all, but rather an across-the board mandate
of accommodation for all religious claimants in all governmental
situations").
Because it
too mandates an across the board accommodation for religious inmates, a strong
argument can be made that RLUIPA's purpose is to advance religion in prisons
relative to other constitutionally protected conduct. Cf. Idleman, supra, at
285-86. Constitutional claims brought
by inmates, including those under the Free Exercise Clause, are analyzed under
a rational basis test. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L.
Ed. 2d 282, 107 S. Ct. 2400 (1987); Turner v. Safley, 482 U.S. 78, 89-90, 96 L.
Ed. 2d 64, 107 S. Ct. 2254 (1987). Not so with RLUIPA, which mandates a strict
scrutiny test. Thus, religion and religion alone receives a higher degree of
governmental [*1025] protection. By providing more protection for inmates'
religious rights than any other rights Congress could reasonably be aid to have
abandoned neutrality and acted with the purpose of furthering religion.
However, I need not make this finding, for even if I take Congress at its word
that its purpose was accommodation rather than promotion, a valid secular
purpose does not prevent a statute from going too far and having the primary
effect of advancing religion. Madison, 2003 U.S. Dist. Lexis 1094, at *17 n.4.
b. Effect of RLUIPA
"The effect prong asks whether, irrespective of
government's actual purpose, the practice under review in fact conveys a
message of endorsement or disapproval." Lynch, 465 U.S. at 690 (O'Connor,
J., concurring). The core notion animating this requirement "is not only
that government may not be overtly hostile to religion but also that it may not
place its prestige, coercive authority, or resources behind a single religious
faith or behind religious belief in general, compelling nonadherents to support
the practices or proselytizing of favored religious organizations and conveying
the message that those who do not contribute gladly are less than full members
of the community." Texas Monthly, 489 U.S. at 9.
The
United States contends that RLUIPA satisfies Lemon's effect prong because it
does not promote or subsidize a religious belief or message. Rather, the Act
merely frees religious individuals to practice as they otherwise would in the
absence of certain state-imposed regulations. Although that may be the stated
purpose of RLUIPA, I conclude that the
Act has the primary effect of advancing religion, in violation of the
Establishment Clause.
The mere fact that government acts to remove barriers to the
free exercise of religion does not mean that the statute does not have
impermissible effects. See Amos, 483 U.S. at 334-35 (internal quotation marks
omitted) ("At some point, accommodation may devolve into an unlawful
fostering of religion ...."). In deciding whether a governmental action
constitutes permissible discretionary accommodation under the Establishment
Clause, the Court has looked to a number of factors, including (1) the extent
to which the governmentally created exemption is extended to nonreligious
persons or institutions, and not simply to religious ones; n8 (2) the magnitude
of the resulting burden placed on nonbeneficiaries, n9 and the extent to which
permitting the accommodation might induce, rather than simply facilitate, religious
belief or practice; n10 and (3) the substantiality of [*1026] the free exercise
burden removed due to the exemption. n11 Idleman, supra, at 289. Analysis of
these factors leads ineluctably to the conclusion that in enacting RLUIPA
Congress elevated religion to the status of congressionally preferred activity,
in violation of the Establishment Clause.
i. RLUIPA Applies Only to Religious Practices
First, RLUIPA covers only religious practices; it
extends no heightened protection to inmates seeking to exercise their rights of
free speech, association, marriage, or procreation. As noted, claims alleging
violation of such constitutional rights in a prison setting are analyzed under
a rational basis standard. Turner, 482 U.S. at 89. The Turner rational
relationship standard applies to all cases in which "a prisoner asserts
that a prison regulation violates the Constitution" and to "all
circumstances in which the needs of prison administration implicate
constitutional rights." Washington v. Harper, 494 U.S. 210, 224, 108 L.
Ed. 2d 178, 110 S. Ct. 1028 (1990).
The Court has explained the reason why inmates' constitutional
rights should be judged under a different standard than those of free
citizens. "To ensure that courts afford
appropriate deference to prison officials, we have determined that prison
regulations alleged to infringe constitutional rights are judged under a
'reasonableness' test less restrictive than that ordinarily applied to alleged
infringement of fundamental constitutional rights." O'Lone, 482 U.S. at
349. This standard "ensures the ability of corrections officials 'to
anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration,' and avoids unnecessary
intrusion of the judiciary into problems particularly ill suited to 'resolution
by decree.'" Id. at 349-50 (quoting Procunier v. Martinez, 416 U.S. 396,
405, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974)).
But RLUIPA upsets this balance. As the court noted in Madison:
RLUIPA singles out religious rights from the fundamental rights
encompassed within the Turner test and establishes a drastically increased
level of protection for such rights. Under RLUIPA, prison regulations that
substantially burden religious belief, including those that are generally
applicable and facially neutral, are judged under a strict scrutiny standard,
requiring prison officials, rather than the inmate, to bear the burden of proof
that the regulation furthers a compelling penological interest and is the least
restrictive means of satisfying this interest. 42 U.S.C. § 2000cc-1. As is well
known from the history of constitutional law, the change that RLUIPA imposes is
revolutionary, switching from a scheme of deference to one of presumptive
unconstitutionality. See Smith, 494 U.S. at 888, 110 S. Ct. at 1605. Instead of
rational, the penological interest under RLUIPA must be of the highest order,
see Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d
15 (1972); Jenkins v. Angelone, 948 F. Supp. 543, 546 (E.D. Va. 1996); instead
of focusing on the prison inmate's ability to find other avenues to exercise
his belief, a court is required to focus on the prison administrator's choice among regulatory [*1027]
options, see 42 U.S.C. § 2000cc-1(a)(2); instead of placing the burden of proof
on an inmate, RLUIPA throws the burden on prison officials, see id. §
2000cc-1(a). It is hard to imagine a greater reversal of fortunes for the
religious rights of inmates than the one involved in the passage of RLUIPA.
Madison, 2003 U.S. Lexis
1094, at *25-26.
Congress
effected this drastic change in prison administration without any evidence that
religious rights were in greater danger of arbitrary deprivation at the hands
of correctional officials than other constitutional rights. Id. at *27-27
(collecting cases where other constitutional rights were violated). n12 The
effect, therefore, is to provide greater protection to religiously motivated
conduct than other conscientious conduct. In Madison, Judge Turk provided this
example of the anomaly created by RLUIPA:
Assume, for example, that a prison official confiscates white
supremacist literature held by two different inmates. One inmate is a member of
the Aryan Nation solely because of his fanatical belief that a secret Jewish
conspiracy exists to control the world. The second inmate holds the white
supremacist literature because he is a member of the Church of Jesus Christ
Christian, Aryan Nation ("CJCC"). The non-religious inmate may challenge
the confiscation as a violation of his rights to free expression and free
association. A court would evaluate these claims under the deferential rational
relationship test in Turner, placing a high burden of proof on the inmate and
leaving the inmate with correspondingly dim prospects of success. See Haff v.
Cooke, 923 F. Supp. 1104 (E.D. Wis. 1996). However, the religious inmate, as a member of the CJCC, may assert a RLUIPA claim,
arguing that the confiscation places a substantial burden on his religious
exercise. The religious white supremacist now has a much better chance of
success than the non-religious white supremacist, as prison officials bear the
burden of proving that the prison policy satisfies a compelling interest and is
the least restrictive means of satisfying the interest. Id. at 1115 ("If
this court applied a RFRA test more stringent than the Turner test, this court
would force prisons to favor prisoners' religious material over their secular
material because prisons would need a better justification to confiscate
religious material than political material.") The difference in the level
of protection provided to each claim lies not in the relative merits of the
claims, but lies instead in the basis of one claim in religious belief. See id.
(holding that, applying a strict scrutiny standard under RFRA, the plaintiff
"would possess the white supremacist material solely because of its
relation to exercising his religious, as opposed to his political,
rights.").
Id. at * 28-29.
Judge Turk concluded:
The singling out of religious belief as the one fundamental right of
prisoners deserving of legislative protection rejects any notion of
congressional neutrality in the passage of RLUIPA. In the absence of any proof
that religious rights are more at risk in prison than other fundamental rights,
and with the knowledge that strict scrutiny is not required to protect the
religious belief of prisoners under the Free Exercise Clause, [*1028] Congress
acted only to protect religious rights. Such an action, while labeled a neutral
"accommodation," is not in fact neutral at all, and the Court is not
allowed to defer to the mere characterization of RLUIPA as such ... When
Congress acts to lift the limitations on one right while ignoring all others, it
abandons a position of neutrality towards these rights, placing its power
behind one system of belief. When the one system of belief protected is
religious belief, Congress has violated the basic requirement of neutrality
embodied in the Establishment Clause.
Id. at *30-32 (citations
omitted).
As Justice O'Connor has explained, "Absent the most unusual circumstances, one's religion ought
not affect one's legal rights or duties or benefits." Grumet, 512 U.S. at
715 (O'Connor, J., concurring). But under RLUIPA one's religion does affect
one's rights and benefits. The Act's "compelling state interest test
privileges religious [inmates] by giving them an ill-defined and potentially
sweeping right to claim exemption from generally applicable laws, while comparably
serious secular commitments ... receive no such legal solicitude."
Eisgruber & Sager, supra, at 453-54.
Simply
labeling RLUIPA an "accommodation" statute does not change its
effect. "Supreme Court decisions make clear that the constitutional power
to accommodate religious practice does not license the state to confer
privileges on religious believers indiscriminately." Id. at 453. For
example, in Caldor, 472 U.S. at 708, the Court struck down a Connecticut
statute that "guaranteed every employee, who 'states that a particular day
of the week is observed as his Sabbath,' the right not to work on his chosen
day." The Court held that the statute violated the Establishment Clause
because it "has a primary effect that impermissibly advances a particular
religious practice." Id. at 710. The Court emphasized the lack of
exception to the statute:
In essence, the Connecticut statute imposes on employers and employees
an absolute duty to conform their business practices to the particular
religious practices of the employee by enforcing observance of the Sabbath the
employee unilaterally designates. The State thus commands that Sabbath
religious concerns automatically control over all secular interests at the
workplace; the statute takes no account of the convenience or interests of the
employer or those of other employees
who do not observe a Sabbath. The employer and others must adjust their affairs
to the command of the State whenever the statute is invoked by an employee.
Id. at 709. Similarly, RLUIPA requires prisons to adjust their practices to accommodate
religious practices whenever invoked by an inmate, unless a state interest of
the highest order can be demonstrated.
Amos does
not suggest a different result. In that case, the Court stated: "A law is
not unconstitutional simply because it allows churches to advance religion,
which is their very purpose. For a law to have forbidden 'effects' under Lemon,
it must be fair to say that the government itself has advanced religion through
its own activities and influence." 483 U.S. at 337. RLUIPA requires the government, itself,
through the actions of prison administrators, to prefer religious rights over
all others. Madison, 2003 U.S. Dist. Lexis 1094, at *32 n.9. Further, unlike
the statute at issue in Amos, RLUIPA was not designed to remove a specific
burden on the decision-making processes of religious organizations, or some
other specific and peculiar disability imposed by a general law on a particular
religious practice. Rather, it creates
a broad-based right that religious inmates may invoke whenever [*1029]
generally applicable prison rules impact their subjective religious
beliefs.
As Judge Turk concluded:
The difference between Amos and RLUIPA is, like all Establishment
Clause cases, a question of degree. However, the difference in degree between
the two is substantial, and congressional neutrality is the line that divides
them. When Congress has acted to impose an affirmative burden on religion, it
is necessary for Congress to remove that burden in order to retain a position
of neutrality
towards religious belief. However, when Congress acts to provide religious
inmates, and only religious inmates, with a level of constitutional protection
that the Supreme Court has deemed unnecessary to protect religious rights, it
has gone beyond protecting religion to affirmatively advancing it.
Id.
ii. Burden and Effect on Non-Believers
Second,
RLUIPA imposes a substantial burden on those it does not favor. While the Act
will not levy monetary costs on non-believers, as, for example, a preferential
tax exemption that shifts the tax burden to secular interests would, "a
similar transfer will take place any time that government has a legitimate
interest in denying an exemption." Eisgruber & Sager, supra, at 455.
In a world of scarce resources for recreation, programming, and educational
opportunities in prison, a statute that requires religious activities to
receive primary consideration will obviously impact on the opportunities for
non-religious inmates.
Moreover,
when inmates see that the rules do not apply with the same force to the
religious as to the agnostic or atheist, there will be two results. First, the
latter group will feel angry and ostracized, which could lead to institutional
safety and security concerns. n13 Second, non-religious prisoners will know what they have to do so
that they, too, can benefit from the softer rules: become religious.
Considering the meager resources and opportunities available to them inside
prison walls, the compulsion to become religious -- created by government --
will indeed be strong.
iii. Substantiality of the Burden Removed
The final
consideration in evaluating accommodation or exemption statutes is the
significance of the burden being removed. Ordinarily, this will be easy to
define, as in Amos -- religious employers were relieved of the burden of
compliance with the religious discrimination component of Title VII. This was
considered substantial in that it kept government out of the internal working
of religious organizations.
But with RLUIPA, the burden
to be removed is not specifically defined; rather, the Act extends to all substantial burdens on the religious
exercise of inmates. As noted, this aspect of RLUIPA makes it unlike any accommodation
statute approved by the Court. The sweeping scope of the Act is further
demonstrated by its definition of "religious exercise" -- "any
exercise of religion, whether or not compelled by, or central to, a system of
religious belief." 42 U.S.C. § 2000cc-5(7)(A). Therefore, Congress has
required prison officials to accommodate religious practices with no real idea
of what it was requiring be accommodated. n14 As Professors Eisgruber[*1030]
and Sager have noted, a religious accommodation statute is defensible only if
"it rests on a reasonable judgment that religious interests need a special
protection because they are especially likely to be treated with hostility or
indifference." Eisgruger & Sager, supra, at 460; see also William P. Marshall,
The Religious Freedom Restoration Act: Establishment, Equal Protection and Free Speech Concerns, 56 Mon. L. Rev. 227,
241-42 (1995) ("RFRA lacks both the precision and the considered
legislative judgment that might serve to sustain more limited government grants
of exemption."). RLUIPA obviously fails the test.
Moreover, in order to harmonize Turner's admonition that courts
defer to the reasoned judgment of prison administrators with application of
RLUIPA's strict scrutiny standard, courts will inevitably soften that standard
in order to sustain the actions of prison officials. Madison, 2003 U.S. Dist.
Lexis 1094, at *34 n.10 (collecting cases where courts allowed speculative
administrative judgments concerning security and cost to suffice as compelling
state interests). This, in turn, "will almost certainly have the effect of
diluting that test in other contexts [such as racial classifications] where the
Court has found the test normatively apt and workable in application."
Eisgruber & Sager, supra, at 452; see also Smith, 494 U.S. at 888 (noting
that application of the strict scrutiny standard to free exercise claims will
"subvert its rigor in the other fields where it is applied"). n15
[*1031]
Finally, it
is worth noting that if prison officials indeed behave arbitrarily or
discriminatorily in denying religious freedoms (or other constitutional
rights), which, according to Congress, RLUIPA was enacted to remedy, inmates
already have a remedy under Turner and O'Lone. These decisions require that
prison policies be "legitimate and neutral." Turner, 482 U.S. at 90.
Courts should not allow "frivolous or arbitrary rules" that burden
religion, 146 Cong Rec. at S7775, even under the deferential standard that
controlled prior to RLUIPA's enactment. n16
iv. Conclusion as to RLUIPA's Effect
Government
may not, under the guise of accommodation, create incentives to undertake
religious indoctrination or define the recipients of its assistance by religion.
See Agostini, 531 U.S. at 231-32; see also Wallace, 472 U.S. at 69 (O'Connor,
J., concurring) ("The Establishment Clause is infringed when the
government makes adherence to religion relevant to a person's standing in the
political community."); Welsh v. United States, 398 U.S. 333, 356, 26 L. Ed.
2d 308, 90 S. Ct. 1792 (1970) (Harlan, J.,
concurring) (stating that if government chooses to grant exemptions
"it cannot draw the line between theistic or nontheistic religious beliefs
on the one hand and secular beliefs on the other"). That is precisely the
effect of RLUIPA. n17 I therefore find that it violates the second prong of the
Lemon test.
c. Excessive Entanglement Under RLUIPA
In order
to satisfy the third prong of the Lemon test, a statute must not foster an
excessive entanglement of government with religion. Lemon, 403 U.S. at 613. To
determine whether a statute fosters excessive entanglement a court must examine
"the character and purposes of the institutions that are benefitted, the
nature of the aid that the State provides, and the resulting relationship
between the government and the religious authority." Id. at 615.
RLUIPA also fails under this prong because it forces the states
to become involved with, knowledgeable about, and exceedingly sensitive to the
varied religious practices of their inmates. It also forces the federal courts
to become involved in prison administration, an area that the Supreme Court has
admonished judges to avoid.
A recent case in the Western District of Wisconsin suggests how
both of these aspects of entanglement can occur. In Charles v. Verhagen, 220 F.
Supp. 2d 937, 940 (W.D. Wis. 2002), an inmate claimed that a restriction on
prayer oil violated his rights under RLUIPA and the Free Exercise Clause of the
First Amendment. The [*1032] court held that the rule did not violate the
plaintiff's First Amendment rights because it was reasonably related to the
legitimate penological interest of limiting the quantity of personal
possessions inmates could have in their cells. Id. at 953.
However, the court found that the regulation did violate RLUIPA.
The defendants argued that it was necessary to put general limitations on
inmate property, including religious property. Id. at 948. The court stated:
"Even assuming that these security
and administrative concerns are compelling governmental interests, I cannot
find that defendants have employed the least restrictive means of furthering
those interests." Id. Instead of banning the religious prayer oil
outright, defendants could address the security and administrative burdens
"at a lower cost to inmates' religious freedom by, for instance, capping
the overall amount of property a prisoner may possess and forcing prisoners who
desire spiritual items to sacrifice secular ones in exchange." Id. at 949.
And so, under RLUIPA,
prison officials are placed in the business of counting the number of trinkets
in each inmate's cell, dividing them into religious and non-religious stacks,
then subtracting the surplus from the secular pile. While RLUIPA forces prison
administrators and courts to make distinctions between religious and secular
property, recall that the religious item need not even be "central"
to the inmate's "system of religious belief." 42 U.S.C. §
2000cc-5(7)(A). Moreover, the prison official must, as an initial matter,
determine whether the inmate practices a "religion," entitling him to
heightened protection. The legal test for determining what is a
"religion" looks primarily to the subjective views of the individual
seeking protection. n18 See Peterson v. Wilmur Communications, Inc., 205 F.
Supp. 2d 1014, 1018 (E.D. Wis. 2002). Therefore, if the inmate holds a
"sincere" belief that occupies the same place in his life as an
orthodox belief in God, id., the prison official must pause before treating that
inmate like any other. See Madison, 2003 U.S. Dist. Lexis 1094, at *35
("As a result of the broad interpretation given to 'religious exercise,' a
court must abide by the individual prisoner's subjective determination that a
particular practice is a method of religious belief."); see also Rouser v.
White, 944 F. Supp. 1447, 1454 (E.D. Cal. 1996) ("The Supreme Court has
explained that the relevant question is not what others regard as an important
religious practice, but what the plaintiff believes.").
Under RLUIPA,
prison officials must also predict the future consequences of their actions
regarding religion. Every time the prison seeks to enact a new rule, it must
determine whether the rule will impose a substantial burden on at least the
main religions. But that determination will not be conclusive, for RLUIPA
protects religions and religious practices unknown to reasonable prison
officials, including religions and religious practices not yet in existence.
See Walsh, supra, at 193 (stating that
under RLUIPA's broad definition of religious practice, a person could
allege a substantial burden based on a system of beliefs government may not
have known about and could not have foreseen).
If the
inmate brings suit under RLUIPA, the court must engage in a similar analysis, second guessing the reasoned
judgment of those expert in prison administration. As the Supreme Court
recognized years ago, this entanglement is not only excessive, it is
unworkable.
d. Cases That Have Upheld RLUIPA and RFRA
I note that several other courts have upheld RLUIPA in the face
of Establishment [*1033] Clause challenges. With respect, I believe those
decisions to be flawed.
Because these courts have employed basically the same reasoning,
I will focus on the Ninth Circuit's recent decision in Mayweathers. In just
three short paragraphs of analysis (one for each prong of the Lemon test), the
court found that RLUIPA passed muster.
First, the court found, relying solely on Amos, that RLUIPA had
a secular purpose -- to protect the exercise of religion in prison. 314 F.3d at
1068. As noted above, this is a debatable issue but one that need not be
resolved.
Second, the court held, again relying solely on Amos, that the
primary effect of RLUIPA neither advances nor inhibits religion; instead it
calls for the opposite, forbidding states from imposing burdens on religious
worship. Id. at 1068-69. Of course, the Act does more than that. It requires
correctional officials to prefer religion over irreligion in every aspect of prison
administration. Unlike the statute at issue in Amos, and unlike all of the
other accommodation statutes the Court has previously encountered, RLUIPA was
based not on a specific legislative finding that a certain religious practice
was impermissibly burdened by government; rather, it requires that all
religious practice must be free from any burden not narrowly tailored to
support a compelling interest.
Finally, the court held that RLUIPA does not foster excessive
entanglement. The court noted that, on its face, the Act does not require
"pervasive monitoring" to prevent the government from indoctrinating
religion. Id. at 1069 (citing Agostini, 521 U.S. at 233). But this is a straw
man. The statute upheld in Agostini allowed public school teachers to go into
parochial schools to provide remedial education to disadvantaged children, 521
U.S. at 208, creating the possibility that state paid teachers conducting
classes in a sectarian environment might manifest sympathy for religion to the
point of using public dollars for the purpose of religious indoctrination, id.
at 241-42 (Souter, J., dissenting). There is admittedly no danger that RLUIPA
will turn prison guards into preachers. Rather, by preferring religion to
irreligion, the Act itself does the indoctrinating: if an inmate wants the
increased protection afforded those proclaiming religious convictions he will
convert.
The Mayweathers court next asserted, without any support, that
"RLUIPA does not require prison officials to develop expertise on religious
worship or to evaluate the merits of different religious practices or beliefs.
The statute itself defines religious exercise ...." 314 F.3d at 1069. Of
course, the Act defines "religious exercise" so broadly that even the
most-learned theologian would be hard pressed to identify its contours.
Moreover, any prison administrator seeking to avoid liability under the Act
will seek to become knowledgeable concerning at least the main religions
existing with the prison walls.
The Fifth Circuit's holding in City of Boerne that RFRA did
not violate the Establishment Clause (to which the Seventh Circuit deferred in
Sasnett) is equally unconvincing. Relying exclusively on Amos, the court there
found that RFRA had a valid purpose of removing burdens on religious practice,
and that its primary effect was not forbidden because it merely allowed the
religious to practice and advance their faith. 75 F.3d at 1364. As discussed
above, Amos does not provide the answer to whether RLUIPA violates the
Establishment Clause. RLUIPA does more than allow religious inmates to practice
freely; it provides them "with a legal weapon that no atheist or agnostic
can [*1034]obtain." City of Boerne, 521 U.S. at 537 (Stevens, J.,
concurring).
Finally, the United States directs my attention to Cohen v. City
of Des Plaines, 8 F.3d 484, 487 (7th Cir. 1993), where the court upheld against
an Establishment Clause challenge an ordinance that exempted religious day care
centers from certain zoning requirements. Adhering closely to the Court's
rationale in Amos, the Seventh Circuit held that the City's "zoning
ordinance has the secular purpose of minimizing governmental meddling in
religious affairs." Id. at 491. The court found the ordinance did not have
impermissible effects because allowing churches to provide child care and
education services cohered with their religious missions, and the exemption did
not require the general populace to subsidize religious organizations. Id. at
492. Nevertheless, recognizing that the ordinance might confer commercial
benefits on churches, and following the concurring opinions of Justices Brennan
and O'Connor in Amos, the court required that the religious day care centers
covered by the ordinance be non-profit. Id. at 493. Finally, the court found that
rather than fostering entanglement, the ordinance effected more complete
separation of church and state. Id.
For the same reasons that Amos does not control the outcome in
the present case, neither does Cohen. The Cohen court realized that at times exemptions
are required to avoid Establishment Clause entanglements. See id. at 490-91.
RLUIPA does precisely the opposite -- it fosters entanglement. Further, in
Cohen the court held that the benefitted day care centers had to be
not-for-profit in order to avoid creating a windfall for only some members of
the relevant community. No similar limitation is apparent with RLUIPA; its
benefits flow solely to the religious.
e. Conclusion as to RLUIPA's Constitutionality
RLUIPA
violates the second and third prongs of the Lemon test because its primary
effect is to advance religion, and because it fosters an excessive entanglement
between government and religion. Therefore, I conclude that § 2000cc-1 of RLUIPA, which governs the
claims of prison inmates, violates the Establishment Clause. Defendants' motion
to dismiss plaintiff's claims under RLUIPA will, accordingly, be granted.
II. FIRST AMENDMENT CLAIM OF DEPRIVATION OF INCENDIARY MATERIALS
Defendants next move to dismiss plaintiff's claim that his free
exercise rights were violated by the deprivation of oil, incense, and candles,
which defendants describe as "incendiary materials." Defendants
contend that any restriction on such materials would be rationally related to
legitimate penological interests, and therefore plaintiff fails to state a
claim on which relief may be granted.
A. Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges
the sufficiency of the complaint to state a claim upon which relief may be granted.
Dismissal of an action on such a motion is warranted only if the plaintiff can
prove no set of facts in support of his claims that would entitle him to
relief. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080
(7th Cir. 1997). The essence of a Rule 12(b)(6) motion is not that the
plaintiff has pleaded insufficient facts, it is that even assuming all of his
facts are true, he has no legal claim. Payton v. Rush-Presbyterian-St. Luke's
Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999). In considering such a motion, the
court must assume that all of [*1035] the facts alleged in the complaint are
true and draw all reasonable inferences flowing from those facts in the light
most favorable to the plaintiff. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323,
1326 (7th Cir. 1990).
B. Application of Standard
to Plaintiff's Claim Regarding Incendiary Materials
In ruling on this motion, I first note that plaintiff's
complaint was screened under 28 U.S.C. § 1915A and found to state a claim upon
which relief may be granted. In the complaint,
plaintiff alleged that the individual defendants discriminated against
him based upon his religion and refused to accommodate his religious needs, and
that the policies of the DOC authorized or failed to prevent such conduct.
However, defendants now ask me "to take judicial notice of
the fact that oil, incense, and candles are incendiary materials, and to take
judicial notice of the inherent dangers relating to the possibility of a fire
in a correctional institution." (Defendants' Brief in Support of Motion to
Dismiss at 18). Defendants also ask me to take judicial notice of the facts
that incense and scented oils may be used to mask the odors of unlawful
activities, such as the smoking of marijuana; that the burning of incense and
candles will cause smoke to enter the air, and that smoke is an irritant for
individuals with serious medical conditions such as asthma, bronchitis, or
emphysema.
These
concerns may indeed constitute legitimate penological interests, justifying
restrictions on plaintiff's religious practices. However, it appears that
defendants already allow at least some of these practices pursuant to DOC
rules. Along with their reply brief, defendants attach a copy of the DOC's
Internal Management Procedure # 6 (IMP-6), of which it also asks me to take
judicial notice. (Defendants' Reply Brief in Support of Motion to Dismiss, Ex.
B). IMP-6 contains a provision for "Smoking/Smudging/Incense" which
states in part:
Each institution will allow opportunities for ceremonial smoking,
smudging and the use of incense consistent with its policy on use of smoking
materials. Ceremonial smoking, smudging and the use of incense will be
authorized as set forth by the institution in the Chapel or other designated
areas (indoors and/or outdoors).
(Id., Ex. B at 10-11).
As noted above, a
regulation that impacts on an inmate's constitutional right to free exercise of
religion is valid if it is reasonably
related to legitimate penological interests. O'Lone, 482 U.S. at 349. To
determine whether such a relationship exists, the court should consider (1)
whether there is a logical connection between the restriction and the
governmental interests invoked to justify it; (2) the availability of
alternative means to exercise the restricted right; (3) the impact that
accommodation of the right might have on other inmates, on prison personnel,
and on allocation of prison resources generally; and (4) whether there are
"obvious, easy alternatives" to the policy that could be adopted at
de minimis cost. Turner, 482 U.S. at 89-90.
Defendants argue that any regulation denying plaintiff access to
incendiary materials would be reasonable. Yet IMP-6 permits access to and use
of incendiary materials, at least under certain circumstances. On the state of
this record, I cannot determine as a matter of law that defendants' actions
regarding plaintiff's possession and use of such materials were reasonable.
Therefore, the motion to dismiss will be denied. [*1036]
III. QUALIFIED IMMUNITY ON FIRST AMENDMENT CLAIMS
Finally, the individual defendants contend that they are
entitled to qualified immunity on plaintiff's First Amendment claims relating
to a kosher diet; the use of pots, pans, and utensils that may have come into
contact with pork; refusal to recognition his legal (Muslim) name; and the use
and possession of incendiary materials.
"Qualified immunity protects government officials from
civil liability when performing discretionary functions so long as 'their conduct
does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Alvarado v. Litscher, 267
F.3d 648, 652 (7th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). In Saucier v. Katz, 533 U.S. 194,
150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001), the Court held that the issue of
qualified immunity is analyzed under a two step test. The threshold inquiry is
whether "taken in the light most favorable to the party asserting the
injury," the "facts alleged" show the official's conduct
violated a constitutional right. Id. at 201. In the event that no
constitutional right would have been violated if the allegations were
established, there is no need for further analysis. Id.
However, if a violation
could be demonstrated based on a favorable view of the plaintiff's submissions,
the analysis proceeds to the second step, which requires the court to determine
whether the right was clearly established. Id. Such inquiry "must be
undertaken in light of the specific context of the case, not as a broad general
proposition." Id. "The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted." Id.
at 202. "If the law did not put the officer on notice that his conduct
would be clearly unlawful, summary judgment based on qualified immunity is
appropriate." Id. at 202; see also Malley v. Briggs, 475 U.S. 335, 341, 89
L. Ed. 2d 271, 106 S. Ct. 1092 (1986) stating that qualified immunity protects
"all but the plainly incompetent or those who knowingly violate the
law"). However, if various courts have agreed that certain conduct is a
constitutional violation under facts indistinguishable from those presented in
the case before the court, the officer is not "entitled to qualified
immunity based simply on the argument that courts have not agreed on one verbal
formulation of the controlling standard." Id. at 202-03.
The issue of qualified immunity is before me in the present case
on a motion to dismiss. The Seventh Circuit has recently noted that:
a complaint is generally not
dismissed under Rule 12(b)(6) on qualified immunity grounds. See Jacobs v. City
of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000). Because an immunity defense
usually depends on the facts of the case, dismissal at the pleading stage is
inappropriate: "The plaintiff is not required initially to plead factual allegations
that anticipate and overcome a defense of qualified immunity." Id. As
noted in Jacobs' concurrence, "Rule 12(b)(6) is a mismatch for immunity
and almost always a bad ground for dismissal ... When defendants do assert
immunity it is essential to consider facts in addition to those in the
complaint." Id. at 775 (Easterbrook, J., concurring).
Alvarado, 267 F.3d at
651-52.
For two reasons I will deny the motion at this time. First, "the principle that the determination
of immunity need not be made at the earliest opportunity if a fuller [*1037]
development of the record would be helpful to a sound decision is well
established." Hunafa v. Murphy, 907 F.2d 46, 49 (7th Cir. 1990)
(collecting cases). Given the uncertainty in the record, and in light of the
Seventh Circuit's admonition that it is almost never proper to dismiss a
complaint under Rule 12(b)(6) on qualified immunity grounds, I will not dismiss
plaintiff's claims on this basis.
Second, plaintiff is
seeking injunctive relief as well monetary damages. Thus, a finding that the
individual defendants are immune would not result in termination of this
lawsuit. Jacobs, 215 F.3d at 774 (Easterbrook, J., concurring) (stating
that qualified immunity defeats only a
particular remedy, money damages, and that even if qualified immunity from
damages is certain, the complaint may pass muster under Rule 12(b)(6)).
IV. CONCLUSION
THEREFORE, IT IS ORDERED that § 2000cc-1 of RLUIPA is declared
unconstitutional, that defendants' motion to dismiss plaintiff's claims
thereunder is GRANTED, and that plaintiff's RLUIPA claims are DISMISSED;
IT IS FURTHER ORDERED that the defendants' motion to dismiss is,
in all other respects, DENIED.
Dated at Milwaukee, Wisconsin, this 4 day of March, 2003.
LYNN ADELMAN
U.S. District Judge
FOOTNOTES:
n1 It must be noted that the Court's application of the strict
scrutiny standard prior to Smith was uneven. See Smith, 494 U.S. at 883
("We have never invalidated any governmental action on the basis of the
Sherbert test except the denial of unemployment compensation."); see also
Christopher L. Eisgruber & Lawrence G. Sager, Why The Religious Freedom
Restoration Act is Unconsitutional, 69 N.Y.U.L. Rev. 437, 445-46 (1994)
("The compelling state interest test had a genuinely odd career in the
accommodation cases that preceded Smith. Outside the charmed precincts of
unemployment benefits and the Sherbert quartet, those seeking religious
exemptions from otherwise valid laws have prevailed on only one occasion: in
Wisconsin v. Yoder ...."
n2 Section 5 grants Congress the "power to enforce, by
appropriate legislation, the provisions" of the Fourteenth Amendment. U.S.
Const. amend. XIV, § 5.
n3 The House of
Representatives passed a bill entitled the Religious Liberty Protection Act
earlier in 2000, which like RFRA called for application of a strict scrutiny
test to be applied to state and local laws that infringed on the free exercise
of religion, but the bill died in the Senate due to concerns about its broad nature
and potential effect on civil rights laws in areas such as employment and
housing. Ada-Marie Walsh, Note, The Religious Land Use and Institutionalized
Persons Act of 2000: Unconstitutional and Unnecessary, 10 Wm. & Mary Bill
of Rts. J. 189, 192 (2001). RLUIPA was then introduced, and the bill sailed
through both houses of Congress with no public hearings and after suspension of
the rules. Id. at 196.
n4 The other main section of
RLUIPA deals with governmental imposition of land use regulations that substantially
burden the religious exercise of a person, including a religious assembly or
institution. See 42 U.S.C. § 2000cc(a) . When referring to RLUIPA in this
opinion, I refer to that portion of the Act which applies to those, such as
plaintiff, who are confined to an institution.
n5 One commentator has
called Amos "one of the most deferential and least logically convincing
Establishment Clause analyses ever undertaken by the Court." Scott C.
Idleman, The Religious Freedom Restoration Act: Pushing the Limits of
Legislative Power, 73 Tex. L. Rev. 247, 290-91 (1994).
n6 Justice Brennan also made
this clear in his concurring opinion in Amos. "A case-by-case analysis for
all activities therefore would both produce excessive government entanglement
with religion and create the danger of chilling religious activity." Amos,
483 U.S. at 344 (Brennan, J., concurring
n7 See
also Estate of Thornton v. Caldor, 472 U.S. 703, 86 L. Ed. 2d 557, 105 S. Ct.
2914 (1985) (striking down statute that required employers to accommodate
employees' observation of religions Sabbath days).
n8
Compare Grumet, 512 U.S. at 694-704, 129 L. Ed. 2d 546, 114 S. Ct. 2481
(holding that a statute creating a school district comprised entirely of
members of the Satmar Hasidic sect violated the Establishment Clause); and
Texas Monthly, 489 U.S. at 15-17 (striking down a sales tax exemption that
applied only to religious organizations); with Walz v. Tax Comm'n, 397 U.S.
664, 672-73, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970) (upholding property tax
exemption for religious organizations enacted as part of general law exempting
other non-profit organizations).
n9 See
Texas Monthly, 489 U.S. at 15 (asking whether the exemption "burdens
nonbeneficiaries markedly"); Caldor, 472 U.S. at 710 & n.9
(emphasizing the burdens that a statute requiring employers to accommodate
employees' observation of religious Sabbath days imposed on those employees who
did not observe a Sabbath).
n10
Texas Monthly, 489 U.S. at 9 (stating that government may not compel
non-adherents to support religious practices); Michael W. McConnell,
Accommodation of Religion: An Update and a Response to the Critics, 60 Geo.
Wash. L. Rev. 685, 700-02 (1992) (distinguishing accommodations that remove a
significant obstacle to the exercise of religious belief from those that induce
a person to adopt a religion in order to benefit from the accommodation).
n11 See Texas Monthly, 489 U.S. at 15 (asking
whether an exemption can "reasonably be seen as removing a significant
state-imposed deterrent to the free exercise of religion").
n12
Certainly, religion is not the only constitutional right denied inmates on
questionable penological grounds. See, e.g., Gerber v. Hickman, 291 F.3d 617
(9th Cir.) (en banc), cert. denied, 154 L. Ed. 2d 462, 123 S. Ct. 558
(2002) (holding that prison officials
could bar inmate from artificially inseminating his wife).
n13
Professors Eisgruber and Sager noted in their critique of RFRA that "by
taking sides on theological questions, the government divides and disrupts the
political community it ought to represent. This damage to the polity is not
reducible to concerns about unfair subsidies and bruised feelings."
Eisgruber and Sager, supra, at 457.
n14 Gregory Walston, a California Deputy
Attorney General, has noted that in the short time RLUIPA has been effective
"we have already seen Satan-worshiping inmates, as well as one inmate who
made up his own religion with a Monday Sabbath so that he would be exempted
from his Monday job duties, argue that they are entitled to special rights
under RLUIPA." Gregory S. Walston, Federalism and Federal Spending: Why
the Religious Land Use and Institutionalized Persons Act of 2000 is
Unconstitutional, 23 U. Haw. L. Rev. 479, 480 (2001) (footnote omitted). While
religion certainly has a treasured place in our society, Congress's apparent
judgment in RFRA and RLUIPA that religious practice is an unalloyed good that
should be allowed to trump other societal interests is questionable, at best.
As Professor Marshall notes, "Free exercise claims do not always present a
one-sided controversy where only one civil liberty interest is at stake."
William P. Marshall, The Religious Freedom Restoration Act: Establishment,
Equal Protection and Free Speech Concerns, 56 Mon. L. Rev. 227, 228 (1995).
Religious groups and individuals have invoked their faith to justify
discrimination on the basis of race, sexual orientation, and marital status.
Id. "Under the RLUIPA, religious groups may even be able to challenge the
imposition of fire, safety, and health regulations." Walsh, supra, at 197.
n15 Eisgruber and Sager persuasively explain
why strict scrutiny is inapt in analyzing free exercise claims:
The
compelling interest test cannot bear the meaning in the area of religious
exemptions that it has elsewhere. A ruthless presumption of invalidity is
appropriate to racial classifications, which rarely have a sound justification.
No such presumption can apply, however, to laws that burden religious conduct.
Religious obligations can clash with the public interest in an infinite variety
of ways and with infinite degrees of intensity. As we have elsewhere observed,
religious belief need not be founded in reason, guided by reason, or governed
in any way by the reasonable. Examples abound: religion may compel believers to
withhold medical care from children, to ingest dangerous substances, to slaughter protected animal species, to
refuse to pay taxes, to accumulate weapons, or to discriminate on the basis of
race and gender. There is a substantial range of religiously motivated conduct
-- readily observable in contemporary national experience -- that quite clearly
must yield to conflicting secular laws.
No one
seriously disputes this. Even the staunchest promoters of the compelling state
interest test in this context do not want it to be routinely fatal in fact when
applied to laws burdening religious conduct.
Id. at
447 (internal quotation marks and footnotes omitted). Simply put, unlike race,
"there is no constitutional justification for the privileging of
religion." Id. at 448.
n16 It
is also worth noting that if Congress wished to outlaw religious discrimination
in prisons it could easily have done so. See Walsh, supra, at 202-03. RLUIPA
does not merely seek to prevent discrimination against smaller or disfavored
religions; it grants an upper hand to all religions.
n17 RLUIPA "does not simply favor religion;
it clothes that favoritism in constitutional language and categories ...
Congress has certainly cloaked religious interests with the prestigious symbols
of constitutional privilege and done so in defiance of the Court's own
constitutional judgment." Eisgruber & Sager, supra, at 457-58; see
also Walsh, supra, at 189 ("The RLUIPA favors and protects those with a
system of religious beliefs over those who do not hold an organized view of
religion."); id. at 196 n.63 (quoting Ross K. Baker, Commentary:
Religious-Political Mix Makes a Bad Brew, L.A. Times, Sept. 11, 2000, at B7)
("remarking that the RLUIPA is 'a bill that would cause James Madison and
other authors of the Constitution who abominated government meddling in
religion to gyrate in their crypts
n18
Congress did not attempt to define "religion" in RLUIPA.