The Religious Land Use and Institutionalized
Persons Act of 2000 1
ACLU National Prison Project
915 15th St. N.W., 7th Floor
Washington, DC 20005
(202) 393-4930
Resources
The Becket Fund for Religious Liberty maintains an excellent website with news on
litigation under RLUIPA: www.rluipa.org.
History
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that the
Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. ' 2000bb et seq.,
exceeded Congress’ powers under the Enforcement Clause of the Fourteenth
Amendment, and thus could not constitutionally be applied to the states.
Note that RFRA still applies to the claims of federal and District of Columbia
prisoners. O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003)
(federal prisoners); Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001)
(same); Jama v. U.S.I.N.S., 343 F. Supp. 2d 338, 370 (D.N.J. 2004) (immigration
detainees); Gartrell v. Ashcroft, 191 F. Supp. 2d 23, 36-37 (D.D.C. 2002) (RFRA
scrutiny applies to BOP’s decision to house District of Columbia prisoners in
Virginia state prison with substantially burdensome grooming policies).
One court has held that prisoners cannot recover damages from the federal
Bureau of Prisons under RFRA. Webman v. Federal Bureau of Prisons,
441 F.3d 1022 (D.C. Cir. 2006).
In response to City of Boerne, Congress enacted the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. ' 2000cc et seq. The statute
re-establishes the compelling state interest/least restrictive means test that existed under
RFRA for the religious claims of prisoners:

1

Copyright April 25, 2008 by David C. Fathi and Tom Jawetz. This document
may be freely distributed without charge to prisoners and to those providing legal
assistance to them. Please direct corrections or comments to the address above.
In preparing this outline we have benefited greatly from materials prepared by
Anthony Picarello, President and General Counsel, Becket Fund for Religious Liberty
(www.becketfund.org).
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SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF
INSTITUTIONALIZED PERSONS.
(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 2 of the Civil Rights of
Institutionalized Persons Act (42 U.S.C. 1997), 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.
(b) SCOPE OF APPLICATION- 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.
Constitutionality
RLUIPA’s constitutionality has been hotly contested. The Supreme Court has held that
the statute does not violate the Establishment Clause, but other constitutional challenges
are being raised in the lower courts.
Findings of Constitutionality
a) Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct. 2113 (2005) (rejecting
Establishment Clause challenge), rev’g 349 F.3d 257 (6th Cir. 2003).
b) Madison v. Virginia, 474 F.3d 118 (4th Cir. 2006) (rejecting Spending Clause
challenge).
c) Cutter v. Wilkinson, 423 F.3d 579 (6th Cir. 2005) (rejecting Spending Clause and
Tenth Amendment challenges; declining to reach Commerce Clause challenge).
d) Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004) (rejecting Establishment
Clause, Commerce Clause and Enforcement Clause challenges).
e) Madison v. Riter, 355 F.3d 310 (4th Cir. 2003) (rejecting Establishment Clause
challenge), cert. denied, 125 S. Ct. 2536 (2005).
f) Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) (rejecting Spending Clause,
Establishment Clause, and Tenth Amendment challenges, but declining to reach
Commerce Clause challenge).

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g) Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (rejecting Spending
Clause, Establishment Clause, Tenth Amendment, Eleventh Amendment, and
Separation of Powers challenges), cert. denied sub nom. Alameida v.
Mayweathers, 124 S. Ct. 66 (2003).
h) Madison v. Riter, 411 F. Supp. 2d 645 (W.D. Va. 2006) (rejecting Spending
Clause, Tenth Amendment, and separation of powers challenges).
i) Gooden v. Crain, 389 F. Supp. 2d 722 (E.D. Tex. 2005) (rejecting Spending
Clause and Tenth Amendment challenges).
j) Ahmad v. Ehrmann, 339 F. Supp. 2d 1134, 1140 (D. Colo. 2004) (rejecting
constitutional challenges), rev’d on other grounds, 435 F.3d 1196 (10th Cir.
2006).
k) Williams v. Bitner, 285 F. Supp. 2d 593 (M.D. Pa. 2003) (rejecting Establishment
Clause, Spending Clause, Tenth Amendment, and Eleventh Amendment
challenges).
l) Johnson v. Martin, 223 F. Supp. 2d 820 (W.D. Mich. 2002) (rejecting Commerce,
Spending, Establishment Clause, and Tenth Amendment challenges).
m) Gerhardt v. Lazaroff, 221 F. Supp. 2d 827 (S.D. Ohio 2002) (rejecting Spending
Clause, Establishment Clause, and Tenth Amendment challenges), reversed, 349
F.3d 257 (6th Cir. 2003), reversed and remanded, 125 S. Ct. 2113 (2005).
n) Sanabria v. Brown, No. 99-4699 (D.N.J. June 5, 2003) (rejecting Spending
Clause, Establishment Clause, Tenth Amendment, Eleventh Amendment, and
Separation of Powers challenges, but declining to reach Commerce Clause
challenge).
o) Ickstadt v. Dretke, No. H-02 1064 (S.D. Tex. Apr. 2, 2004) (rejecting
constitutional challenges).
p) Jones v. Toney, No. 5:02CV00415 (E.D. Ark. Mar. 29, 2004) (rejecting
constitutional challenges).
q) Gordon v. Pepe, No. Civ. A-00-10453-RWZ, 2003 WL 1571712 (D. Mass. Mar.
6, 2003) (rejecting constitutional challenges).
r) Taylor v. Cockrell, No. H-00-2809 (S.D. Tex. Sept. 25, 2002), vacated on other
grounds, Taylor v. Groom, No. 02-21316 (5th Cir. Aug. 26, 2003).
s) Love v. Evans, No. 2:00-CV-91 (E.D. Ark. Aug. 8, 2001) (rejecting constitutional
challenge based on Mayweathers district court decision).
Findings of Unconstitutionality
a) Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003) (finding RLUIPA Section 3
violates Establishment Clause), reversed and remanded, 125 S. Ct. 2113 (2005).
b) Al Ghashiyah v. Wis. Dep’t of Corrections, 250 F. Supp. 2d 1016 (E.D. Wis.
2003) (same), overruled by Charles v. Verhagen, supra; vacated Jan. 14, 2004.
c) Madison v. Riter, 240 F. Supp. 2d 566 (W.D. Va. 2003) (same), reversed by
Madison v. Riter, supra.
d) In re Rowland, No. HC4172 (Super. Ct. Cal., Monterey Cy., July 31, 2002)
(same) (appellate court affirmed trial court’s denial of habeas petition without
opinion).

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Application
“This Act shall be construed in favor of a broad protection of religious exercise, to the
maximum extent permitted by the terms of this Act and the Constitution.” 42 U.S.C. §
2000cc-3(g).
“The RLUIPA standard poses a far greater challenge than does Turner to prison
regulations that impinge on inmates’ free exercise of religion.” Freeman v. Texas Dep’t
of Criminal Justice, 369 F.3d 854, 858 n.1 (5th Cir. 2004).
RLUIPA does not apply to federal prisons. Ish Yerushalayim v. U.S., 374 F.3d 89, 92 (2d
Cir. 2004) (concluding that RLUIPA “clearly does not create a cause of action against the
federal government or its correctional facilities”).
At least one court has held that only prisoners have standing to bring claims under
RLUIPA. McCollum v. State of California, 2006 WL 2263912, at *2 (N.D. Cal. 2006)
(non-prisoner Wiccan clergyman may not challenge under RLUIPA a prison’s refusal to
pay for Wiccan chaplains).

“program or activity that receives Federal financial assistance”
Section 8 of RLUIPA incorporates the definition of “program or activity” in Title VI of
the Civil Rights Act of 1964, which defines that term as “all of the operations of . . . a
department, agency, special purpose district, or other instrumentality of a State or of a
local government . . . any part of which is extended Federal financial assistance.” 42
U.S.C. § 2000d-4a.
Thus, it is sufficient to show that the state department of corrections receives
federal financial assistance. Hoevenaar v. Lazaroff, 276 F. Supp. 2d 811, 817-18
(S.D. Ohio 2003), rev’d on other grounds, 422 F.3d 366 (6th Cir. 2005); Lindell v.
McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003) (noting that “the Wisconsin
prison system receives federal funding”); but see Ephraim v. Angelone, 313 F.
Supp. 2d 569, 575 (E.D. Va. 2003) (declining to apply RLUIPA because “plaintiff
has not alleged that the Lunenberg Correctional Center or its dietary programs
receive federal financial assistance”), aff’d, 68 Fed. Appx. 460 (4th Cir. 2003),
cert. denied, 124 S. Ct. 1084 (2004). The Supreme Court in Cutter noted that
“[e]very State . . . accepts federal funding for its prisons.” Cutter, 544 U.S. at 716
n.4.
At least one court has held that RLUIPA protects prisoners in facilities run by for-profit
prison companies. Dean v. Corrections Corp. of Am., --- F. Supp. 2d ----, 2008 WL
852483, at *3 (N.D. Miss. Mar. 28, 2008).
“religious exercise”

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RLUIPA defines “religious exercise” as “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).
“Although RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to
a prisoner’s religion, the Act does not preclude inquiry into the sincerity of a prisoner’s
professed religiosity.” Cutter, 544 U.S. at 725 n.13.
“[A] religious exercise need not be mandatory for it to be protected” under RLUIPA.
Kikumura, 242 at 960 (pastoral visits).
“We emphasize that no test for the presence of a ‘substantial burden’ in the RLUIPA
context may require that the religious exercise that is claimed to be thus burdened be
central to the adherent’s religious belief system.” Adkins v. Kaspar, 393 F.3d 559, 570
(5th Cir. 2004), cert. denied, 125 S. Ct. 2549 (2005); id. at 568 (finding that Sabbath and
holy day gatherings “easily qualify as ‘religious exercise’ under the RLUIPA’s generous
definition”).
“While defendants argue that other Muslims interpret these creeds less strictly, permitting
adherents to prepare pork while wearing gloves, they do not cast doubt on the sincerity of
Williams’ interpretation. And, for purposes of RLUIPA, it matters not whether the
inmate’s religious belief is shared by ten or tens of millions. All that matters is whether
the inmate is sincere in his or her own views.” Williams v. Bitner, 359 F. Supp. 2d 370,
375-76 (M.D. Pa. 2005), aff’d, 455 F.3d 186 (3d Cir. 2006).
See also Koger v. Bryan, --- F.3d ----, 2008 WL 1821311, *4 (7th Cir. Apr. 24, 2008)
(plaintiff’s request for a vegetarian diet was a religious exercise, notwithstanding the fact
that plaintiff’s religion (Ordo Templi Orientis) has “no general dietary restrictions,”
because OTO practitioners “may, from time to time, include dietary restrictions as part of
[their] personal regimen of spiritual discipline,” and that is sufficient for RLUIPA);
Morrison v. Garraghty, 239 F.3d 648, 659 (4th Cir. 2001) (holding that “[d]iffering
beliefs and practices are not uncommon among followers of a particular creed, and it is
not within the judicial function and judicial competence to inquire whether the petitioner
or another practitioner more correctly perceives the commands of their common faith”
(internal alterations, citations and quotations omitted)) (analyzing First Amendment
claim).
The Eighth Circuit alone has apparently ignored RLUIPA’s explicit statement that a
practice need not be “compelled by, or central to, a system of religious belief” in order to
be protected. See Murphy v. Missouri Dep’t of Corrections, 372 F.3d 979, 988 (8th Cir.),
cert. denied, 125 S. Ct. 501 (2004) (religious exercise burdened must involve a “central
tenet” of, or be “fundamental” to, the plaintiff’s religion). The Eighth Circuit may revisit
this issue when it is directly presented on appeal. See Patel v. U.S. Bureau of Prisons,
515 F.3d 807, 814 n.7 (8th Cir. 2008) (noting that portions of the substantial burden test
applied in Murphy may be inappropriate in light of RLUIPA’s explicit definition of
“religious exercise,” but declining to reach the issue on the facts presented).

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“substantial burden”
[A] government action or regulation creates a “substantial
burden” on a religious exercise if it truly pressures the
adherent to significantly modify his religious behavior and
significantly violate his religious beliefs. And, in line with
the foregoing teachings of the Supreme Court, the effect of
a government action or regulation is significant when it
either (1) influences the adherent to act in a way that
violates his religious beliefs, or (2) forces the adherent to
choose between, on the one hand, enjoying some generally
available, non-trivial benefit, and, on the other hand,
following his religious beliefs. On the opposite end of the
spectrum, however, a government action or regulation does
not rise to the level of a substantial burden on religious
exercise if it merely prevents the adherent from either
enjoying some benefit that is not otherwise generally
available or acting in a way that is not otherwise generally
allowed.
Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004), cert. denied, 125 S. Ct. 2549 (2005)
(no substantial burden where prison’s requirement of qualified outside volunteers resulted
in denial of congregate services when no such volunteer was available).
“Because the grooming policy intentionally puts significant pressure on inmates such as
Warsoldier to abandon their religious beliefs by cutting their hair, CDC's grooming
policy imposes a substantial burden on Warsoldier's religious practice.” Warsoldier v.
Woodford, 418 F.3d 989, 996 (9th Cir. 2005).
“[S]tate action substantially burdens the exercise of religion within the meaning of the
RLUIPA when it prevents a religious adherent from engaging in conduct both important
to the adherent and motivated by sincere religious belief.” Coronel v. Paul, 316 F. Supp.
2d 868, 880 (D. Ariz. 2004); id. at 882 (denying Pagan prisoner permission to attend
Yaqui Indian and Native Hawaiian religious services may constitute substantial burden).
substantial burden found:
Requiring Ordo Templi Orientis practitioner to obtain verification of religion from clergy
is a substantial burden where religion has no clergymen. Koger, 2008 WL 1821311, *57. Clergy verification requirement might have been a substantial burden even if plaintiff
belonged to a religion with traditional clergy, because the touchstone of the RLUIPA
inquiry is the sincerity of a prisoner’s religious belief, not the opinion of clergy. Id. at *6.
Prohibition on maximum security prisoner attending group religious worship services is a
substantial burden. Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008).

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Being prohibited from growing a beard may be a substantial burden for Muslim prisoner.
Gooden v. Crain, 255 Fed. Appx. 858 (5th Cir. 2007), rev’g 405 F. Supp. 2d 714 (E.D.
Tex. 2005).
Grooming policy prohibiting the growth of long hair may be a substantial burden for
Native American prisoner. Longoria v. Dretke, 507 F.3d 898, 903 (5th Cir. 2007).
DOC policy limiting prisoners to ten books in a cell is a substantial burden for Children
of the Sun Church practitioner who must read four different Afro-centric books each day
to more effectively teach others his religion. Washington v. Klem, 497 F.3d 272, 281-83
(3d Cir. 2007).
Prohibition on prisoner’s preaching to others is a substantial burden. Spratt v. Wall, 482
F.3d 33, 38 (1st Cir. 2007).
Removing a prisoner from “Ramadan observance pass list” is a substantial burden.
Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006).
Each of the following is a substantial burden: (1) requiring Sunni Muslim prisoner to pray
and fast for Ramadan jointly with Shiite Muslims; (2) denying Muslim prisoner access to
religious services and religious meals while in “keeplock;” and (3) denying Muslim
prisoner attendance at Ramadan meals and services on days when he used the law library.
Salahuddin v. Goord, 467 F.3d 263, 275-79 (2d Cir. 2006).
Preventing a prisoner from observing the Muslim religious feast of Eid ul Fitr is a
substantial burden. Shakur v. Selsky, 391 F.3d 106, 120 (2d Cir. 2004).
Denial of congregate religious worship may be a substantial burden. Murphy v. Missouri
Dep’t of Corrections, 372 F.3d 979, 988 (8th Cir.), cert. denied, 125 S. Ct. 501 (2004).
Prisoner’s allegation that prison officials refused to recognize Wotanism (Odinism) as a
religion states a claim under RLUIPA. Lindell v. McCallum, 352 F.3d 1107, 1109 (7th
Cir. 2003).
Each of the following is a substantial burden: (1) providing only joint Sunni-Shi’ite
Jumah services to Muslim prisoners; and (2) refusing to provide Halal food diets on Shiite holy days of Eid-Ghadir, Muharram, and Ashura. Rahman v. Goord, 2007 WL
1299408, at *6-7 (W.D.N.Y. 2007).
Policy barring prisoners from receiving religious books from organizations other than
those on an approved vendor list is a substantial burden. Jesus Christ Prison Ministry v.
California Dep’t of Corrections, 456 F. Supp. 2d 1188, 1204-05 (E.D. Cal. 2006).
On motion for preliminary injunction, where the state completely prohibited a prisoner
from attending group worship that uses the Sacred Names, from resting on the Sabbath,

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and from consuming religiously “clean” food, prisoner could likely show substantial
burden. Buchanan v. Burbury, 2006 WL 2010773, at *6 (N.D. Ohio 2006).
Delay in providing prisoner with prayer oil may, depending upon length of delay,
constitute substantial burden. Perez v. Frank, 433 F. Supp. 2d 955, 964 (W.D. Wis.
2006).
Allegation that prison staff intentionally omitted prisoner from list of those allowed to
attend Native American religious services stated substantial burden, even though prisoner
only missed three services; “it is difficult to imagine a burden more substantial than
banning an individual from engaging in a specific religious practice.” Meyer v. Teslik,
411 F. Supp. 2d 983, 989 (W.D. Wis. 2006).
Jail’s failure to arrange Jumah services for Muslim prisoners could constitute substantial
burden. Larry v. Goetz, 2006 WL 1495784, at *6 (W.D. Wis. 2006).
Termination from prison employment based on one’s religion is a substantial burden.
Rouse v. Caruso, 2007 WL 209922, at *6 (Opinion and Order), rev’d on other grounds,
207 WL 1455919 (E.D. Mich. 2007).
Requiring a Muslim prisoner to handle pork upon pain of discipline is a substantial
burden. Williams v. Bitner, 359 F. Supp. 2d 370, 375-76 (M.D. Pa. 2005), aff’d, 455 F.3d
186 (3d Cir. 2006).
Denying a prisoner Odinist literature is a substantial burden. “I understand plaintiff to
allege that he is unable to attain his religious goal of achieving ‘godhead’ unless he is
allowed to possess [specific Odinist texts]. An act that prevents an inmate from
achieving his ultimate religious goal meets the ‘substantial burden’ test[.]” Borzych v.
Frank, 340 F. Supp. 2d 955, 968 (W.D. Wis. 2004).
Refusing to allow prisoner to wear garments required by Jewish law while being
transported to outside medical provider states a claim under RLUIPA. Boles v. Neet, 333
F. Supp. 2d 1005 (D. Colo. 2004). The court reiterated this holding in response to a
subsequent motion by prison officials. See Boles v. Neet, 402 F. Supp. 2d 1237 (D. Colo.
2005).
Absolute ban on Five Percenter literature and assembly may constitute substantial
burden. Marria v. Broaddus, 200 F. Supp. 2d 280, 298-99 (S.D.N.Y. 2002).
Denial of a sweat lodge is a substantial burden on Native American prisoner’s religious
exercise. Farrow v. Stanley, 2005 WL 2671541, at *8 (D.N.H. 2005).
Being required to cut one’s hair in violation of one’s religious beliefs is a substantial
burden. Hoevenaar, 276 F. Supp. 2d at 818; rev’d on other grounds, 422 F.3d 366 (6th
Cir. 2005); Smith v. Ozmint, 2006 WL 895034, at *4 (D.S.C. 2006).

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Complete denial of religious diet is a substantial burden. Blount v. Johnson, 2006 WL
3746682, at *10-11 (W.D. Va. 2006); Wolff v. NH Dep’t of Corrections, 2007 WL
586687, at *4 (D.N.H. 2007).
substantial burden not found:
Requiring prisoner to substitute vegetarian items from hot bar or salad bar, kosher
vegetarian items, and/or purchase halal vegetarian items on days when Common Fare
meals are not halal is not a substantial burden where plaintiff failed to plead indigence.
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813-15 (8th Cir. 2008).
Denying Odinist prisoner access to a small quartz crystal to communicate with
netherworld did not substantially burden practice of religious exercise; at most it was an
“‘incidental’ burden” insufficient for purposes of RLUIPA. Smith v. Allen, 502 F.3d
1255, 1278-79 (11th Cir. 2007).
Providing a non-rotating menu of cold food items to satisfy Kosher diet is not a
substantial burden. Kretchmar v. Beard, 241 Fed. Appx. 863, at *2 (3d Cir. 2007).
Requiring a prisoner to fill out a form to receive kosher meals is not a substantial burden.
Resnick v. Adams, 348 F.3d 763, 768 n.6 (9th Cir. 2003).
Missing one’s kosher meal seven times over a two-year period due to transport from jail
to court is “simply an inconvenience;” “a substantial burden must be more than a mere
inconvenience.” Subil v. Sheriff of Porter County, 2005 WL 1174218, at *4 (N.D. Ind.
2005).
Denying a prisoner permission to change his name for religious reasons is not a
substantial burden. Scott v. California Supreme Court, 2006 WL 2460737, at *10 (E.D.
Cal. 2006) (report and recommendation).
“compelling governmental interest”
Courts uniformly hold that maintaining institutional order and security is a compelling
governmental interest. See, e.g., Cutter, 125 S. Ct. at 2124 n.13 (“prison security is a
compelling state interest”); Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir. 2005)
(“Nevertheless, the question here is not whether prison security is a compelling
governmental interest. It clearly is”).
But “to prevail on summary judgment, [prison officials] must do more than
merely assert a security concern.” Spratt v. Wall, 482 F.3d 33, 39 (1st Cir. 2007)
(quoting Murphy v. Missouri Dep’t of Corrections, 372 F.3d 979, 988 (8th Cir.
2004)). “We do not think that an affidavit that contains only conclusory
statements about the need to protect inmate security is sufficient to meet [prison
officials’] burden under RLUIPA.” Id. at *6 n.10. See also Koger, 2008 WL
1821311, *6 (the court “can only give deference to the positions of prison

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officials as required by Cutter when the officials have set forth those positions
and entered them into the record) (internal citation omitted) (citing Lovelace v.
Lee, 472 F.3d 174, 191 (4th Cir. 2006)).
Administrative convenience and costs savings are not compelling governmental interests.
Memorial Hospital v. Maricopa County, 415 U.S. 250, 262-69 (1974). See also 42
U.S.C. § 2000cc-3(c) (“this Act may require a government to incur expenses in its own
operations to avoid imposing a substantial burden on religious exercise”). But see
Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (total refusal to provide kosher
meals upheld as least restrictive means of satisfying compelling governmental interests of
maintaining order “and controlling costs”; noting that “TDCJ’s budget is not adequate to
cover the increased expense of either providing a separate kosher kitchen or bringing in
kosher food from the outside”); Lovelace, 472 F.3d at 189-90 (in evaluating the
compelling governmental interest, courts should take into consideration “costs and
limited resources.”) (quoting Cutter, 544 U.S. at 723).
“While our approach does suggest that a court should not rubber stamp or mechanically
accept the judgments of prison administrators, our approach underscores that those
judgments must nevertheless be viewed through the lens of due deference.” Lovelace v.
Lee, 472 F.3d 174, 190 (4th Cir. 2006) (citation omitted) (holding that an interest in
“removing inmates from religious dietary programs where the inmate flouts prison rules”
is not, without further elaboration, a compelling governmental interest).
“least restrictive means”
Under RLUIPA, prison officials have the burden of demonstrating that the challenged
regulation is the least restrictive means of further a compelling governmental interest.
See 42 U.S.C. §§ 2000cc-1; 2000cc-5(2) (“the term ‘demonstrates’ means meets the
burdens of going forward with the evidence and of persuasion”).
“A governmental body that imposes a ‘substantial’ burden on a religious practice must
demonstrate, and not just assert, that the rule at issue is the least restrictive means of
achieving a compelling governmental interest.” O’Bryan v. Bureau of Prisons, 349 F.3d
399, 401 (7th Cir. 2003) (emphasis in original); accord Spratt v. Wall, 482 F.3d 33, 42
(1st Cir. 2007).
“We do not require evidence that racial violence has in fact occurred in the form of a riot,
but we do require some evidence that MDOC's decision was the least restrictive means
necessary to preserve its security interest.” Murphy v. Missouri Dep’t of Corrections,
372 F.3d 979, 989 (8th Cir. 2004).
“CDC cannot meet its burden to prove least restrictive means unless it demonstrates that
it has actually considered and rejected the efficacy of less restrictive measures before
adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.
2005) (restriction on hair length, with no religious exception, is not the least restrictive
means of promoting compelling state interest in prison security).

10

“To meet the least restrictive means test, prison administrators generally ought to
explore at least some alternatives, and their rejection should generally be
accompanied by some measure of explanation. A blanket statement that all
alternatives have been considered and rejected, such as the one here, will
ordinarily be insufficient.” Spratt v. Wall, 482 F.3d 33, 41 n.11 (1st Cir. 2007)
(holding that prison officials failed to show, on motion for summary judgment,
that complete ban on preaching by prisoners is least restrictive means of
promoting prison security).
However, a recent decision by the Sixth Circuit appears to partially shift the burden to the
plaintiff on this issue: “Hoevenaar did not rebut the state’s expert testimony regarding
the problems with his suggested alternatives by substantial evidence that the officials
exaggerated their response to security considerations.” Hoevenaar v. Lazaroff, 422 F.3d
366, 372 (6th Cir. 2005) (internal quotation marks omitted).
The fact that other prisons permit a given activity is evidence that banning the activity is
not the least restrictive means of promoting prison security. Warsoldier, 418 F.3d at 999;
Spratt, 2007 WL 1031462, at *7.
least restrictive means test satisfied:
Total refusal to provide kosher meals is the least restrictive means of advancing
compelling interests of maintaining good order and controlling costs. Baranowski v.
Hart, 486 F.3d 112, 125 (5th Cir. 2007).
Banning three specific Odinist texts that advocate violence is the least restrictive means
of advancing compelling interest in prison security. Borzych v. Frank, 439 F.3d 388,
390-91 (7th Cir. 2006).
Prohibiting prisoner from affixing religious materials to cell walls, doors, and windows
was least restrictive means of advancing compelling interest in prison order and security.
Mark v. Gustafson, 482 F. Supp. 2d 1084, 1090 (W.D. Wis. 2006).
Ragland v. Angelone, 420 F. Supp. 2d 507, 519 (W.D. Va. 2006) (restrictions on hair
length and ban on beards was least restrictive means of advancing compelling interest in
prison security), aff’d sub nom. Ragland v. Powell, 193 Fed. Appx. 218 (4th Cir. 2006).
least restrictive means test not satisfied:
Requiring prisoner to show that religious diet was compelled by religion and to obtain
clergy verification of religious belief is not the least restrictive means of achieving
government ends. Koger, 2008 WL 1821311, *7.

11

Restricting prisoner to ten books in a cell is not the least restrictive means to further the
presumed compelling interests of health, safety, and security. Washington v. Klem, 497
F.3d 272, 284-86 (3d Cir. 2007).
Barring prisoners who do not observe Ramadan fast from Ramadan prayer services is not
the least restrictive means of advancing the state’s articulated interest in “removing
inmates from religious dietary programs where the inmate flouts prison rules.” Lovelace
v. Lee, 472 F.3d 174, 191 (4th Cir. 2006).
Denial of Ta'lim (Muslim educational classes) violates RLUIPA. Daker v.
Wetherington, 469 F. Supp. 2d 1231, 1242 (N.D. Ga. 2007).
Policy barring prisoners from receiving religious books from organizations other than
those on an approved vendor list violates RLUIPA. Jesus Christ Prison Ministry v.
California Dep’t of Corrections, 456 F. Supp. 2d 1188, 1204-05 (E.D. Cal. 2006).
On motion for preliminary injunction, defendants were unlikely to be able to demonstrate
that denying prisoner the opportunity for group worship, rest on the Sabbath and Holy
Days, and a religious diet serves a compelling state interest, where prisoners of other
religions were allowed these benefits; preliminary injunction granted. Buchanan v.
Burbury, 2006 WL 2010773, at *6 (N.D. Ohio 2006).
Complete ban on Cherokee Sacred Fire ceremony and on use of medicinal herbs, and
denial of religious exemption from beard length regulation, “violates RLUIPA;” ban on
smoking tobacco and smudging in cell does not. Smith v. Beauclair, 2006 WL 2348073,
at *7-8 (D. Idaho 2006).
A complete ban on Melanic literature is not the least restrictive means of advancing
prison security. Johnson v. Martin, 2005 WL 3312566, at *7-8 (W.D. Mich. 2005).
Requiring a Muslim prisoner to handle pork while working in food services is not the
least restrictive means of promoting institutional order and security. Williams v. Bitner,
359 F. Supp. 2d 370, 376 (M.D. Pa. 2005), aff’d, 455 F.3d 186 (3d Cir. 2006).
Neither punishing prisoners who refuse for religious reasons to shave their beards, nor
punishing prisoners who miss work to attend Friday religious services, is the least
restrictive means of advancing a compelling government interest. Mayweathers v.
Terhune, 328 F. Supp. 2d 1086, 1095-97 (E.D. Cal. 2004).
Remedies
Many courts have held or assumed that damages are available under RLUIPA. See, e.g.,
Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007) (monetary damages available under
RLUIPA against defendants acting in official capacities, but subject to PLRA; monetary
damages not available against defendants acting in individual capacities); Ahmad v.
Furlong, 435 F.3d 1196 (10th Cir. 2006) (discussing qualified immunity on RLUIPA

12

claim); Agarwal v. Briley, 2006 WL 3523750, at *17 (N.D. Ill. 2006) (compensatory
damages for emotional distress are barred by PLRA; nominal and punitive damages are
available); Meyer v. Teslik, 411 F. Supp. 2d 983, 991 (W.D.Wis. 2006) (same); Shidler v.
Moore, 446 F. Supp. 2d 942, 947 (N.D. Ind. 2006) (same); Orafan v. Goord, 2003 WL
21972735, at *9 (N.D.N.Y. 2003) (“clearly the Act contemplates individual liability”).
But others have held that they are not. Sisney v. Reisch, 533 F. Supp. 2d 952, 971 (D.S.D.
2008); Boles v. Neet, 402 F. Supp. 2d 1237, 1241 (D. Colo. 2005); Williams v. Bitner,
285 F. Supp. 2d 593, 602 (M.D. Pa. 2003). See also Madison v. Virginia, 474 F.3d 118,
130 n.3, 131-32 (4th Cir. 2006) (holding that damages are not available against a state;
leaving open whether they are available against state officials sued in their individual
capacities).
Attorney fees are available under 42 U.S.C. § 1988(b) (and are therefore subject to the
PLRA limitations on attorney fees, 42 U.S.C. § 1997e(d)).
Statute of limitations
Claims under RLUIPA are governed by the four-year statute of limitations set forth in 28
U.S.C. § 1658(a). Williams v. Gerges, 2005 WL 1773857, at *6 (E.D.N.Y. 2005); Couch
v. Jabe, 2006 WL 2716140, at *3 (W.D. Va. 2006).

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THE FIRST AMENDMENT
In cases in which RLUIPA and RFRA are not available, prisoners’ religious claims are
governed by the First Amendment. Restrictions on prisoners= First Amendment rights are
governed by the test set forth in Turner v. Safley, 482 U.S. 78, 89 (1987): the restriction is
valid “if it is reasonably related to legitimate penological interests.”
The Turner standard is deferential, but “not toothless.” Thornburgh v.
Abbott, 490 U.S. 401, 414 (1989). Prison officials may not “pil[e]
conjecture upon conjecture” to justify their policies. Reed v. Faulkner,
842 F.2d 960, 963 (7th Cir. 1988); see also Armstrong v. Davis, 275 F.3d
849, 874 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002) (prison
officials cannot avoid scrutiny under Turner “by reflexive, rote
assertions”); cf. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(“deference does not imply abandonment or abdication of judicial
review”).
One Circuit has suggested that the Turner test does not apply to
pretrial detainees. Demery v. Arpaio, 378 F.3d 1020, 1028-29 (9th
Cir. 2004), cert. denied, 125 S. Ct. 2961 (2005).
Under the Turner standard, the following restrictions on religious exercise have been
found to violate the First Amendment:
Restrictions on ability to attend religious services. Mayweathers v.
Newland, 258 F.3d 930, 938 (9th Cir. 2001) (upholding injunction against
disciplining Muslim prisoners for missing work to attend Friday services);
Omar v. Casterline, 288 F. Supp. 2d 775, 781 (W.D. La. 2003) (refusal to
tell Muslim prisoner the date or time of day to allow him to pray and fast
states First Amendment claim); Youngbear v. Thalacker, 174 F. Supp. 2d
902, 914-15 (N.D. Iowa 2001) (one year delay in providing sweat lodge
for Native American religious activities violates First Amendment).
Denial of religious literature. Sutton v. Rasheed, 323 F.3d 236 (3d Cir.
2003) (denial of Nation of Islam texts); Jesus Christ Prison Ministry v.
California Dep’t of Corrections, 456 F. Supp. 2d 1188, 1201-02 (E.D. Cal.
2006) (policy barring prisoners from receiving religious books from
organizations other than those on an approved vendor list).
Requiring violation of the Sabbath or other religious duties. McEachin v.
McGuinnis, 357 F.3d 197, 204-05 (2d Cir. 2004) (intentionally giving
Muslim prisoner an order while he was praying); Williams v. Bitner, 455
F.3d 186, 194 (3d Cir. 2006) (requiring Muslim prisoner to handle pork);
Hayes v. Long, 72 F.3d 70 (8th Cir. 1995) (same); Murphy v. Carroll, 202
F. Supp. 2d 421 (D. Md. 2002) (prison officials’ designation of Saturday

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as cell-cleaning day violated Free Exercise rights of Orthodox Jewish
prisoner).
Failure to accommodate religious dietary rules. Ford v. McGinnis, 352
F.3d 582, 597 (2d Cir. 2003) (“We . . . have clearly established that a
prisoner has a right to a diet consistent with his or her religious scruples”);
Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (punishing plaintiff
for religious fasting); Beerheide v. Suthers, 286 F.3d 1179, 1192 (10th Cir.
2002) (requiring co-pay from prisoners requesting Kosher meals); Makin
v. Colorado Dep’t of Corrections, 183 F.3d 1205 (10th Cir. 1999) (failure
to accommodate Muslim prisoner’s fasting requirements during
Ramadan); Ashelman v. Wawrzaszek, 111 F.3d 674, 678 (9th Cir. 1997)
(failure to provide Kosher meals); see also Levitan v. Ashcroft, 281 F.3d
1313 (D.C. Cir. 2002) (reversing summary judgment for defendants in
Catholic prisoners’ challenge to denial of communion wine).
Under the Turner standard, challenges to grooming requirements and bans
on religious objects have generally been unsuccessful. But such rules may
be vulnerable if they are not enforced equally against all religions. See
Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir. 1999) (First Amendment
violated where prison banned the wearing of Protestant crosses but
allowed Catholic rosaries); Swift v. Lewis, 901 F.2d 730, 731-32 (9th Cir.
1990) (where prison permitted long hair and beards for some religions but
not others, it must present evidence justifying this unequal treatment);
Wilson v. Moore, 270 F. Supp. 2d 1328, 1353 (N.D. Fla. 2003) (Native
Americans allowed to wear religious headgear only during religious
services, while prisoners of other religions were allowed to wear their
headgear at all times).
One court has held that atheism is a religion, and that a prison’s refusal to
allow formation of an atheist study group, while allowing other religious
groups, violates the Establishment Clause. Kaufman v. McCaughtry, 419
F.3d 678, 684 (7th Cir. 2005).

April 15, 2008

15

106th CONGRESS
2d Session
S. 2869
AN ACT
To protect religious liberty, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the `Religious Land Use and Institutionalized Persons
Act of 2000'.

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS(1) GENERAL RULE- No government shall impose or implement a land
use regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or
institution, unless the government demonstrates that imposition of the
burden on that person, assembly, or institution-(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling
governmental interest.
(2) SCOPE OF APPLICATION- This subsection applies in any case in
which-(A) the substantial burden is imposed in a program or activity that
receives Federal financial assistance, even if the burden results
from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial
burden would affect, commerce with foreign nations, among the
several States, or with Indian tribes, even if the burden results from
a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a
land use regulation or system of land use regulations, under which
a government makes, or has in place formal or informal procedures
or practices that permit the government to make, individualized
assessments of the proposed uses for the property involved.
(b) DISCRIMINATION AND EXCLUSION-

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(1) EQUAL TERMS- No government shall impose or implement a land
use regulation in a manner that treats a religious assembly or institution on
less than equal terms with a nonreligious assembly or institution.
(2) NONDISCRIMINATION- No government shall impose or implement
a land use regulation that discriminates against any assembly or institution
on the basis of religion or religious denomination.
(3) EXCLUSIONS AND LIMITS- No government shall impose or
implement a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or
structures within a jurisdiction.

SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF
INSTITUTIONALIZED PERSONS.
(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 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997),
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.
(b) SCOPE OF APPLICATION- 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.

SEC. 4. JUDICIAL RELIEF.
(a) CAUSE OF ACTION- A person may assert a violation of this Act as a claim
or defense in a judicial proceeding and obtain appropriate relief against a
government. Standing to assert a claim or defense under this section shall be
governed by the general rules of standing under article III of the Constitution.
(b) BURDEN OF PERSUASION- 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, 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.
(c) FULL FAITH AND CREDIT- Adjudication of a claim of a violation of
section 2 in a non-Federal forum shall not be entitled to full faith and credit in a

17

Federal court unless the claimant had a full and fair adjudication of that claim in
the non-Federal forum.
(d) ATTORNEYS' FEES- Section 722(b) of the Revised Statutes (42 U.S.C.
1988(b)) is amended-(1) by inserting `the Religious Land Use and Institutionalized Persons Act
of 2000,' after `Religious Freedom Restoration Act of 1993,'; and
(2) by striking the comma that follows a comma.
(e) PRISONERS- Nothing in this Act shall be construed to amend or repeal the
Prison Litigation Reform Act of 1995 (including provisions of law amended by
that Act).
(f) AUTHORITY OF UNITED STATES TO ENFORCE THIS ACT- The United
States may bring an action for injunctive or declaratory relief to enforce
compliance with this Act. Nothing in this subsection shall be construed to deny,
impair, or otherwise affect any right or authority of the Attorney General, the
United States, or any agency, officer, or employee of the United States, acting
under any law other than this subsection, to institute or intervene in any
proceeding.
(g) LIMITATION- If the only jurisdictional basis for applying a provision of this
Act is a claim that a substantial burden by a government on religious exercise
affects, or that removal of that substantial burden would affect, commerce with
foreign nations, among the several States, or with Indian tribes, the provision shall
not apply if the government demonstrates that all substantial burdens on, or the
removal of all substantial burdens from, similar religious exercise throughout the
Nation would not lead in the aggregate to a substantial effect on commerce with
foreign nations, among the several States, or with Indian tribes.

SEC. 5. RULES OF CONSTRUCTION.
(a) RELIGIOUS BELIEF UNAFFECTED- Nothing in this Act shall be construed
to authorize any government to burden any religious belief.
(b) RELIGIOUS EXERCISE NOT REGULATED- Nothing in this Act shall
create any basis for restricting or burdening religious exercise or for claims
against a religious organization including any religiously affiliated school or
university, not acting under color of law.
(c) CLAIMS TO FUNDING UNAFFECTED- Nothing in this Act shall create or
preclude a right of any religious organization to receive funding or other
assistance from a government, or of any person to receive government funding for
a religious activity, but this Act may require a government to incur expenses in its
own operations to avoid imposing a substantial burden on religious exercise.

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(d) OTHER AUTHORITY TO IMPOSE CONDITIONS ON FUNDING
UNAFFECTED- Nothing in this Act shall-(1) authorize a government to regulate or affect, directly or indirectly, the
activities or policies of a person other than a government as a condition of
receiving funding or other assistance; or
(2) restrict any authority that may exist under other law to so regulate or
affect, except as provided in this Act.
(e) GOVERNMENTAL DISCRETION IN ALLEVIATING BURDENS ON
RELIGIOUS EXERCISE- A government may avoid the preemptive force of any
provision of this Act by changing the policy or practice that results in a substantial
burden on religious exercise, by retaining the policy or practice and exempting the
substantially burdened religious exercise, by providing exemptions from the
policy or practice for applications that substantially burden religious exercise, or
by any other means that eliminates the substantial burden.
(f) EFFECT ON OTHER LAW- With respect to a claim brought under this Act,
proof that a substantial burden on a person's religious exercise affects, or removal
of that burden would affect, commerce with foreign nations, among the several
States, or with Indian tribes, shall not establish any inference or presumption that
Congress intends that any religious exercise is, or is not, subject to any law other
than this Act.
(g) BROAD CONSTRUCTION- This Act shall be construed in favor of a broad
protection of religious exercise, to the maximum extent permitted by the terms of
this Act and the Constitution.
(h) NO PREEMPTION OR REPEAL- Nothing in this Act shall be construed to
preempt State law, or repeal Federal law, that is equally as protective of religious
exercise as, or more protective of religious exercise than, this Act.
(i) SEVERABILITY- If any provision of this Act or of an amendment made by
this Act, or any application of such provision to any person or circumstance, is
held to be unconstitutional, the remainder of this Act, the amendments made by
this Act, and the application of the provision to any other person or circumstance
shall not be affected.

SEC. 6. ESTABLISHMENT CLAUSE UNAFFECTED.
Nothing in this Act 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 (referred to in this section as the `Establishment
Clause'). Granting government funding, benefits, or exemptions, to the extent
permissible under the Establishment Clause, shall not constitute a violation of this
Act. In this section, the term `granting', used with respect to government funding,

19

benefits, or exemptions, does not include the denial of government funding,
benefits, or exemptions.

SEC. 7. AMENDMENTS TO RELIGIOUS FREEDOM RESTORATION
ACT.
(a) DEFINITIONS- Section 5 of the Religious Freedom Restoration Act of 1993
(42 U.S.C. 2000bb-2) is amended-(1) in paragraph (1), by striking `a State, or a subdivision of a State' and
inserting `or of a covered entity';
(2) in paragraph (2), by striking `term' and all that follows through
`includes' and inserting `term `covered entity' means'; and
(3) in paragraph (4), by striking all after `means' and inserting `religious
exercise, as defined in section 8 of the Religious Land Use and
Institutionalized Persons Act of 2000.'.
(b) CONFORMING AMENDMENT- Section 6(a) of the Religious Freedom
Restoration Act of 1993 (42 U.S.C. 2000bb-3(a)) is amended by striking `and
State'.

SEC. 8. DEFINITIONS.
In this Act:
(1) CLAIMANT- The term `claimant' means a person raising a claim or
defense under this Act.
(2) DEMONSTRATES- The term `demonstrates' means meets the burdens
of going forward with the evidence and of persuasion.
(3) FREE EXERCISE CLAUSE- The term `Free Exercise Clause' means
that portion of the first amendment to the Constitution that proscribes laws
prohibiting the free exercise of religion.
(4) GOVERNMENT- The term `government'-(A) means-(i) a State, county, municipality, or other governmental
entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or
official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 4(b) and 5, includes the United
States, a branch, department, agency, instrumentality, or official of
the United States, and any other person acting under color of
Federal law.
(5) LAND USE REGULATION- The term `land use regulation' means a
zoning or landmarking law, or the application of such a law, that limits or
restricts a claimant's use or development of land (including a structure
affixed to land), if the claimant has an ownership, leasehold, easement,
servitude, or other property interest in the regulated land or a contract or
option to acquire such an interest.

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(6) PROGRAM OR ACTIVITY- The term `program or activity' means all
of the operations of any entity as described in paragraph (1) or (2) of
section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(7) RELIGIOUS EXERCISE(A) IN GENERAL- The term `religious exercise' includes any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief.
(B) RULE- The use, building, or conversion of real property for
the purpose of religious exercise shall be considered to be religious
exercise of the person or entity that uses or intends to use the
property for that purpose.

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