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RLUIPA AT FOUR: EVALUATING THE
SUCCESS AND CONSTITUTIONALITY OF
RLUIPA’S PRISONER PROVISIONS
DEREK L. GAUBATZ*

I. INTRODUCTION ..........................................................504
II. RLUIPA’S LEGISLATIVE HISTORY AND THE
HISTORICAL BACKGROUND OF PROTECTION OF
RELIGIOUS EXERCISE OF PRISONERS .......................506
III. HOW THE ACT OPERATES .........................................513
A. A Brief Overview of the Act....................................513
B. The Elements of a Prisoner’s Claim for Relief Under
RLUIPA .................................................................514
1. RLUIPA’s Merits Requirement—Demonstrating a
Substantial Burden on Religious Exercise.......514
a. Substantial Burden .......................................515
b. Religious Exercise ......................................517
i. “Any” religious exercise is protected by
RLUIPA ....................................................518
ii. Actions Must Be “Religious” to
Be Protected ..............................................519
iii. Religious Exercise Need Not Be
“Compelled” by a System of Religious Belief
to Be Protected ..........................................522
iv. Religious Exercise Need Not Be “Central”
to a System of Religious Belief to Be
Protected....................................................529
2. RLUIPA’s Jurisdictional Requirements—
Demonstrating Either Spending Clause or
Commerce Clause Jurisdiction..................534
a. Spending Clause Jurisdiction .......................535
* Director of Litigation, The Becket Fund for Religious Liberty. I am grateful to
Anthony Picarello and Roman Storzer for their advice, to Tracy Hresko, Jeffey Hayes, and
Joshua Davey for their research assistance, to my wife Judy for her extraordinary patience,
and to God for His abundant grace.

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b. Commerce Clause Jurisdiction ....................536
3. RLUIPA’s Exhaustion Requirement—
Demonstrating Compliance with the PLRA ....539
C. Defending Against a RLUIPA Claim......................539
1. The Strict Scrutiny Test Applies .......................539
2. Unlike the Turner/O’Lone standard, RLUIPA
Shifts the Burden of Proof to Defendants ........543
3. Prison Administrators Will Not Be Able to Rely
on Merely Legitimate or Important Interests ...545
4. Prisoners can defeat assertions of a compelling
government interest where the prison allow
similar conduct that damages the asserted
interest..............................................................548
5. How Strict Is RLUIPA’s Strict Scrutiny
Standard? .........................................................550
D. RLUIPA’s Remedies ..............................................554
IV. THE SUCCESS OF RLUIPA CLAIMS ON THE
MERITS ....................................................................557
A. Cases Challenging the Denial of a Religious Diet ...557
1. Cases Challenging Prison Grooming and Clothing
Policies.............................................................559
B. Cases Challenging Restrictions on Group Worship and
Special Ceremonies ................................................562
C. Cases Challenging Limits on access to Religious
Literature and Devotional Items.............................566
D. General Observations On the Record of Merits Claims
Under RLUIPA In Its First Four Years ..................568
V. RLUIPA IS A CONSTITUTIONAL EXERCISE OF
CONGRESSIONAL POWER .........................................571
A. RLUIPA Section 3 Does Not Violate the
Establishment Clause. ............................................572
1. RLUIPA Has a Secular Purpose........................574
2. RLUIPA Does Not Have the Primary Effect of
Advancing Religion. ........................................577
a. RLUIPA does not cause the government to
advance religious exercise itself, but rather to
avoid interference with private religious
actors as they advance religious exercise. .577
b. None of the rationales suggested by the Sixth
Circuit and RLUIPA’s critics distinguish
RLUIPA from the myriad accommodations

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of religious exercise by the political branches
that follow the best of our traditions. ........578
i. The Establishment Clause Does Not Prohibit
Law Passed Solely to Accommodate
Religious Exercise.....................................579
ii. RLUIPA Does Not Have Any Impermissible
Effects on the Religious Freedoms of
Others. .......................................................585
iii. The Mandates of the Free Exercise Clause
Are Not a Ceiling On Permissible
Accommodation of Religious Exercise.....588
3. RLUIPA Does Not Foster Excessive Entanglement
With Religion...................................................588
B. RLUIPA Section 3 Is a Constitutional Exercise of
Congress’s Spending Power Under Article I .........589
1. RLUIPA Is in Pursuit of the General Welfare....591
2. RLUIPA Places Unambiguous Conditions on the
Receipt of Federal Funds .................................591
3. RLUIPA’s Conditions Relate to a Legitimate
Federal Interest ................................................594
4. RLUIPA Does Not Violate Any Independent
Constitutional Requirement .............................597
C. RLUIPA Section 3 Is a Constitutional Exercise of
Congress’s Commerce Clause Power Under
Article I ..................................................................598
D. RLUIPA Section 3 Does Not Violate the Tenth
Amendment. ...........................................................601
E. RLUIPA Section 3 Does Not Violate the Eleventh
Amendment ............................................................603
F. RLUIPA Does Not Violate Separation of Powers
Principles................................................................605
VI. CONCLUSION ............................................................606

503

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“Remember those in prison as if you were their fellow prisoners, and
those who are mistreated as if you yourselves were suffering.”
Hebrews 13:3
I.

INTRODUCTION

More often than not, when Congress or the courts have
remembered prisoners, it has been to further circumscribe their right
to access the courts. For example, the Prisoner Litigation Reform Act
of 1995 placed a variety of procedural and administrative barriers in
place before prisoners could access the federal courts,1 and
Congress’s 1996 habeas reform,2 limited the range of substantive
claims prisoners could bring in federal courts. The Supreme Court has
also been stingy in extending rights to prisoners, holding in a pair of
cases that limitations on prisoners’ constitutional rights in civil
cases—including the right to free exercise of religion—are subject
only to the rational basis test, the lowest level of constitutional
scrutiny.3 Lower courts also gutted the protections afforded to
prisoners’ religious exercise under the Religious Freedom Restoration
Act (RFRA) in the four years it applied to the states (before being
held unconstitutional), ruling against prisoners in over 90% of the
cases.4
The Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA)5 represents a remarkable departure from that this trend. In
1. Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, Title I, §
101(a), Title VIII, §§ 801-810, 110 Stat. 1321-66 to-77 (1996). The PLRA became law in
1996 and sought to reduce frivolous prisoner lawsuits by “institute[ing] certain restrictive
filing requirements on prisoners, such as payment of filing fees out of an institutional
account, the need to pass a court clerk’s review, and a “‘three strikes and you’re out’
provision on frequent frivolous filers.” Lee Boothby & Nicholas P. Miller, Prisoner
Claims for Religious Freedom and State RFRAs, 32 U.C. DAVIS L. REV. 573, 596–97
(1999).
2. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996).
3. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987); Turner v. Safley, 482
U.S. 78 (1987).
4. Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575, 607–17 (1998)
(collecting federal and state court prisoner RFRA cases and demonstrating that prisoners
lost ninety out of ninety-nine RFRA claims for which there were reported decisions). See
also infra note 29.
5. 42 U.S.C. § 2000cc-1 et seq.

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RLUIPA, Congress created—without a dissenting vote6—a specific
cause of action to protect and accommodate the religious exercise
rights of prisoners. Specifically, it provides that state action that
“substantially burdens” a prisoner’s “religious exercise” is unlawful
unless prison officials can demonstrate that burdening religious
exercise is the “least restrictive means” of achieving a “compelling
government interest.” Moreover, recognizing that lower courts had
undermined the protections of RFRA by construing it to protect only
a narrow range of religious exercise, Congress took special care in
drafting RLUIPA to enact a definition of religious exercise that
corresponds to the inclusive approach the Supreme Court has taken in
defining protected religious exercise under the Free Exercise Clause.7
Though a circuit split on the Act’s constitutionality has provoked
the Supreme Court to address RLUIPA’s constitutionality this term,8
it is significant that the Act has already survived longer than its
predecessor, RFRA, and recently enjoyed its fourth anniversary.
Accordingly, with four years of data to examine, it is appropriate to
take stock of how the Act operates, whether it has had more success
than RFRA in protecting prisoners’ religious exercise, and whether
the arguments of its critics that it is unconstitutional have any merit.
Part I of this article provides a historical overview of the protection
of the religious exercise rights of prisoners in the United States and a
description of RLUIPA’s legislative history. Part II examines
RLUIPA’s provisions in detail and lays out what a prisoner must
prove to invoke RLUIPA’s jurisdictional provision, what remedies a
prisoner is entitled to under RLUIPA, what a prisoner must prove to
establish a substantial burden on religious exercise, and what type of
religious exercise is protected under RLUIPA. Particular attention is
paid to how RLUIPA’s definition of “religious exercise” seeks to
rectify judicial interpretations of RFRA that led to prisoners losing the
overwhelming majority of claims brought under RFRA. This section
also examines what prison officials must demonstrate to establish a
compelling government interest and the least restrictive means of
advancing that interest and how a faithful application of RLUIPA’s

6. RLUIPA’s legislative history reveals that the Act passed both the House and the
Senate by unanimous consent. See S.2869, Bill Summary and Status for 106th Congress,
(2000), available at http://thomas.loc.gov/cgi-bin/bdquery/z?d106:SN02869:@@@L&
summ2=m&.
7. U.S.C. § 2000cc-5(7).
8. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003) cert. granted Oct. 12, 2004 (No.
03-9877).

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strict scrutiny test is likely to affect the most commonly asserted
reasons for prison officials’ decisions to burden religious exercise.
Part III of this article then turns to an empirical examination of how
RLUIPA prisoner claims have fared in the first four years of the Act’s
existence. This section concludes that the record thus far indicates
that the Act has enabled prisoners to enjoy moderately more success
in pursuing religious liberty claims than prisoners did under RFRA.
The empirical record also reveals that the flood of claims feared by
RLUIPA’s critics has not materialized. Finally, in light of the
Supreme Court’s decision to resolve the circuit split concerning
RLUIPA’s constitutionality, Part IV examines and rejects the
arguments of RLUIPA’s critics that the Act is an unconstitutional
exercise of congressional power.
II. RLUIPA’S LEGISLATIVE HISTORY AND THE
HISTORICAL BACKGROUND OF PROTECTION OF
RELIGIOUS EXERCISE OF PRISONERS
The desire to engage in religious exercise among prisoners in the
United States is widespread. One recent study found that “[r]eligious
practice in prison can be very extensive with about 50% of inmates
attending religious services an average of six times per month.”9
Historically, however, prisoners in the United States enjoyed very
little protection of their religious exercise rights, as a prisoner was
simply viewed, in the words of one court, as a “slave of the State.”10
“Even when the earliest American prisons allowed worship, ‘[t]here
was little tolerance granted to prisoners of religions that did not fit the
[Protestant] mold.’” 11 Although federal courts began to increasingly
open their doors in the New Deal era and afterwards to constitutional
claims against state officials, they continued to display little interest
in providing a forum for prisoners to bring free exercise (or other
constitutional) challenges to the policies of prison administrators. As

9. Thomas P. O’Connor & Michael Perreyclear, Prison Religion in Action and Its
Influence on Offender Rehabilitation, 35 J. OFFENDER REHAB. 11, 28 (2002). See also
Thomas P. O’Connor et al., Home for Good in Oregon: A Community, Faith and State Reentry Partnership to Increase Restorative Justice, Corrections Today, Oct. 2004, at 73,
available at http://www.oregon.gov/DOC/TRANS/docs/pdf/home_4_good.pdf (census of
Oregon state prisoners showed that 52 percent of them are involved in religious activities).
10. Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871). See also Note, In the
Belly of the Whale: Religious Practice in Prison, 115 HARV. L. REV. 1891, 1892–93
(2002).
11. In the Belly of the Whale, supra note 10, at 1893 (quoting MICHAEL B. MUSHLIN,
RIGHTS OF PRISONERS 255 (2d ed. 1993).

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one circuit court put it in the 1950’s, “it is not the function of the
Courts to superintend the treatment and discipline of prisoners in
penitentiaries, but only to deliver from imprisonment those who are
illegally confined.”12
In the 1960s and 70s, however, the pendulum began to swing the
other way, as federal courts became increasingly receptive to prisoner
religious exercise claims. This opening volley in religious freedom
prisoner litigation was led largely by Black Muslims and other
minority religions, and, for the first time, resulted in declarations from
lower federal courts that “insofar as possible within the limits of
prison discipline[,] . . . prisoners” should be allowed to practice their
religion in prison.”13 Then, in Cruz v. Beto,14 the Supreme Court
added its weight to this trend, holding that a prison had a duty to
provide Muslim prisoners “reasonable opportunity of pursuing [their]
faith comparable to the opportunity afforded fellow prisoners who
adhere to conventional religious precepts.” In the 15 years following
Cruz v. Beto, prisoners enjoyed the highest level of protection for
their First Amendment religious exercise rights in the nation’s history.
Though there was a conflict among the circuits over exactly what
level of scrutiny burdens on the religious exercise of prisoners
received, the lower courts generally extended some form of either
strict or heightened scrutiny.15
The renaissance of prisoner free exercise claims ended with the
Supreme Court’s 1987 decision in O’Lone v. Estate of Shabazz.16
12. Adams v. Ellis, 197 F.2d 483, 485 (5th Cir. 1952). See also Kelly v. Dowd, 140
F.2d 81, 83 (7th Cir. 1944) (holding that because prisoner was incarcerated in a state
prison, the reasonableness of the refusal to provide religious materials was a subject for the
state courts).
13. Sostre v. McGinnis, 334 F.2d 906 (2d Cir. 1964). See also Pierce v. LaVallee, 293
F.2d 233 (2d Cir. 1961), on remand, 212 F.Supp. 865 (N.D.N.Y. 1962), aff’d per curiam,
319 F.2d 844 (2d Cir. 1963); Bryant v. Wilkins, 258 N.Y.S.2d 455, 45 Misc.2d 923 (N.Y.
Sup.1965).
14. 405 U.S. 319, 322 (1972).
15. Compare Barnett v. Rodgers, 410 F.2d 995, 1000 (D.C. Cir. 1969) (burden on
prisoner religious exercise justified only if state shows a compelling state interest and no
alternatives that would not infringe upon First Amendment rights) with O’Lone v.
Shabazz, 482 U.S. 342 (1987) (burden on prisoner religious exercise justified if burden
serves important penalogical goals and prison demonstrates no reasonable method by
which religious rights can be accommodated) with Wali v. Coughlin, 754 F.2d 1015, 1033
(2d Cir. 1985) (where prisoner religious exercise was not presumptively dangerous, prison
officials were required to show “that a particular restriction is necessary to further an
important governmental interest, and that the limitations on freedoms occasioned by the
restriction are no greater than necessary to effectuate the governmental objective
involved,” but greater deference was given to prison officials where evidence was
presented that the desired religious exercise was dangerous).
16. O’Lone, 482 U.S. at 353.

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Citing its earlier precedent of Turner v. Safley,17 which narrowly
construed the due process rights of prisoners, the Court rejected both
strict and heightened scrutiny for prisoner free exercise claims.
Instead, the Court held that the standard was one of mere
“reasonableness” that turned on whether the prison’s action in
burdening religious exercise was “reasonably related to legitimate
penological interests.”18 Reasonableness, the Court held, would be
determined by a balance of the four factors laid out in Turner: (1)
whether there is a “‘valid, rational connection’ between the prison
regulation and the legitimate governmental interest put forward to
justify it,” and whether that connection is not “so remote as to render
the policy arbitrary or irrational”;19 (2) whether inmates retain
alternative means of exercising the circumscribed right; (3) the impact
of accommodating the right on other inmates, guards, and prison
resources generally; and (4) whether there are alternatives to the
regulation restricting religious liberty that “fully accommodate[ ] the
prisoner’s rights at de minimis cost to valid penological interests”; the
“existence of obvious, easy alternatives may be evidence that the
regulation is not reasonable, but is an ‘exaggerated response’ to
prison concerns.”20
In many ways, O’Lone turned out to be the Court’s first step in a
wider retreat from religious liberty protection that would extend
beyond the free exercise rights of prisoners. In 1990, the Supreme
Court issued its landmark decision in Employment Division v. Smith.21
Whereas the Court’s prior decisions outside of the prison context had
seemed to subject all laws that substantially burdened religious
exercise to strict scrutiny,22 the Smith Court announced a new rule
17. 482 U.S. 78 (1987).
18. O’Lone, 482 U.S. at 349 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
19. Significantly, where the government objective is discriminatory, and thus arbitrary,
the Turner/O’Lone inquiry is at an end and the plaintiff is entitled to relief. See Shaw v.
Murphy, 532 U.S. 223, 229–30 (2001) (“If the connection between the regulation and the
asserted goal is ‘arbitrary or irrational,’ then the regulation fails, irrespective of whether
the other [Turner] factors tilt in [the state’s] favor”); Crawford v. Indiana Dep’t of Corr.,
115 F.3d 481, 486 (7th Cir. 1997), abrogated on other grounds by Erickson v. Board of
Governors, 207 F.3d 495 (7th Cir. 2000) (“[T]here is no general right of prison officials to
discriminate against prisoners on grounds of . . . religion.”). See also Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“[T]he protections
of the Free Exercise Clause pertain if the law at issue discriminates against some or all
religious beliefs.”).
20. Turner, 482 U.S. at 89–91.
21. 494 U.S. 872 (1990).
22. See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205
(1972); Thomas v. Review Bd. of Indep. Employment Sec. Div., 450 U.S. 707 (1981);
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987); Hernandez v.

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applying mere rational basis scrutiny in the usual case where religious
exercise was burdened as a result of a neutral and generally applicable
law. 23 The Court held that strict scrutiny was reserved only for laws
that were not neutral or generally applicable, involved a system of
individualized exemptions or assessments, or involved the newly
minted constitutional phrase “hybrid rights.” 24
In November 1993, Congress responded to the Court’s narrowing
of Free Exercise protections in Smith and O’Lone by enacting the
Religious Freedom Restoration Act (“RFRA”), which established a
single strict scrutiny standard for evaluating the validity of any law or
regulation that substantially burdened religious exercise.25 The stated
purpose of the Act was to “restore the compelling interest test as set
forth in Sherbert v. Verner and Wisconsin v. Yoder,” and to apply it to
all government acts that “substantially burdened” religious exercise,
even if the burden results from a neutral law of general applicability.26
The statute drew no distinction between claims by prisoners and
claims by others; in fact, its legislative history made clear that courts
were to apply strict scrutiny to prisoners’ claims.27 An amendment
seeking to exempt prisons from the bill was rejected,28 and the
legislative history reveals that Congress found that religion played a
vital role in the rehabilitative process for some inmates.29
RFRA, however, did not live up to its potential in improving the
free exercise rights of prisoners (or others). First, the lower courts
applied RFRA’s standards in such a way that over 90% of all prisoner
RFRA claims failed.30 Second, RFRA was struck down, as applied to
the states, less than four years after its passage. In City of Boerne v.
Flores,31 the Supreme Court found that although Congress may
enforce constitutional rights under Section 5 of the Fourteenth
Comm’r, 490 U.S. 680 (1989).
23. Smith, 494 U.S. at 879 (“[T]he right of free exercise [of religion] does not relieve an
individual of the obligation to comply with a ‘valid and neutral law of general
applicability.’”).
24. Id. at 882.
25. 42 U.S.C. § 2000bb(a)(5).
26. 42 U.S.C. §§ 2000bb(b), 2000bb-1.
27. See S. REP. NO. 103-111, reprinted in 1993 U.S.C.C.A.N. 1892, 1899 (expressing
intent to restore “protection afforded to prisoners to observe their religions[,] which was
weakened by the decision in O’Lone v. Estate of Shabazz”).
28. See 139 CONG. REC. S14,468 (daily ed. October 27, 1993); S. REP. NO. 103-111,
reprinted in 1993 U.S.C.C.A.N. 1892.
29. See, e.g., 139 CONG. REC. S14,465 (daily ed. Oct. 27, 1993) (statement of Sen.
Hatch) (“[E]xposure to religion is the best hope we have for rehabilitation of a prisoner.
Most prisoners, like it or not, will eventually be returning to our communities.”)
30. Lupu, supra note 4.
31. 521 U.S. 507, 532 (1997).

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Amendment, RFRA exceeded Congress’s Enforcement Clause
authority by defining rights instead of enforcing them. Id. at 532.
Second, the lower courts applied RFRA’s standards in such a way that
over 90% of all prisoner RFRA claims failed.32
After RFRA was struck down, Congress held a series of hearings to
gather evidence of state abuses of religious liberty around the nation
and began drafting a new piece of religious freedom legislation
designed to withstand the constitutional deficiencies identified by the
Court in Boerne.33 After numerous hearings and two draft bills, the
new law was eventually narrowed to address “those areas of law
where the congressional record of religious discrimination and
discretionary burden was the strongest:”34 laws governing
institutionalized persons (i.e., prisoners and persons in mental
institutions) and land use laws.35 Three factors led Congress and its
diverse array of supporters (including the ACLU, People for the
American Way, Prison Fellowship, the Aleph Institute, and the
Family Research Council) to conclude that prisoners ought to be
beneficiaries of this new legislation.
First, during the hearings there was a growing concern among
inmates, clergy, prisoners’ rights advocates, and members of
Congress that prisoners were being unfairly prevented from practicing
their faiths.36 Indeed, there were reports throughout the country of
frivolous and arbitrary deprivations of religious rights in prisons, such
as denials of prayer shawls and matzo to Jewish inmates and small
amounts of sacramental wine to Catholic inmates.37 Moreover,
Reverend Donald W. Brooks, a director of prison ministry in
32. Lupu, supra note 4.
33. See infra note 131.
34. Roman P. Storzer and Anthony R. Picarello, Jr., The Religious Land Use and
Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional
Zoning Practices, 9 GEO. MASON L. REV. 929, 944 (2001) [hereinafter “Storzer &
Picarello”].
35. A discussion of the land use portions of RLUIPA is beyond the scope of this article.
For a thorough discussion of those portions of RLUIPA, see id.
36. See, e.g., Statements of Sens. Hatch and Kennedy, Statements on Introduced Bills
and Joint Resolutions (July 13, 2000); The Need for Federal Protection of Religious
Freedom and Boerne v. Flores, II: Oversight Hearing Before the House Comm. on the
Judiciary, Subcomm. on the Constitution, 105th Cong. 37 – 45 (March 26, 1998)
(statement of Isaac M. Jarsoslawicz, Director of Legal Affairs, Aleph Institute); The Need
for Federal Protection of Religious Freedom After Boerne v. Flores: Hearing Before the
House Comm. on the Judiciary, Subcomm. On the Constitution, 105th Congress 54 – 66
(February 26, 1998) (statement of Rev. Donald W. Brooks, Director of Prison Ministry,
Roman Catholic Archdiocese of Oklahoma City and the Roman Catholic Diocese of
Tulsa).
37. See, e.g., Testimony of Jarsoslawicz; Testimony of Brooks, supra note 36.

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Oklahoma, testified that even vitally important religious items such as
the Bible, the Koran and the Talmud were being confiscated from
inmates under harsh prison regulations.38 Such testimony sparked
congressional concern that religious faith in American prisons was
being unduly constrained, even where it did not undermine the
“discipline, order, or safety” of such institutions, and thus that
prisoners should receive the protection of the proposed religious
freedom act.39
Second, in light of strong evidence that spiritual development and
religious practice promote rehabilitation and reduce recidivism in
inmates,40 and that most states were unlikely to implement their own
laws promoting the free exercise rights of prisoners, the need for
federal protection seemed clear.41 Indeed, one prisoner rights advocate
testified to the House Judiciary Committee that protecting the free
exercise rights of prisoners was simply “good policy.”42 Religious
observance by prisoners, he asserted, cut recidivism rates by twothirds, so protecting such observances had benefits beyond the
protection of a fundamental right. Even opponents of the Act were
forced to concede the rehabilitative effects of prisoner religious
exercise.43
Lastly, RLUIPA was seen as a way to remove state-imposed
barriers from those seeking to minister to prisoners. Clergymen and
prisoner rights advocates repeatedly voiced their concerns that in the
absence of such a federal law they would lack the leverage to compel
38. Testimony of Brooks, supra note 36.
39. Statement of Sens. Hatch and Kennedy, supra note 36.
40. See Mark C. Young et al., Long-Term Recidivism Among Federal Inmates Trained
as Volunteer Prison Ministers, 22 J. OFFENDER REHAB. 97, 104, 110–11 (1995)
(recidivism rate lower for prisoners participating in intensive prison ministry as compared
to prisoners in the general population); Melvina T. Sumter, Religiousness and PostRelease Community Adjustment, Graduate Research Fellowship—Executive Summary 10
(Sept. 25, 2000), available at http://www.ncjrs.org/pdffiles1/nij/grants/184509.pdf (same).
41. See, e.g., Testimony of Jarsoslawicz; Protecting Religious Liberty After Boerne v.
Flores: Hearing Before the House Comm. on the Judiciary, Subcomm. on the Constitution,
105th Cong. 3 – 11 (July 14, 1997) (statement of Charles W. Colson, President, Prison
Fellowship Ministries).
42. Id.
43. See Hearing Before the Senate Comm. on the Judiciary: Issues Relating to
Religious Liberty Protection, and Focusing on the Constitutionality of a Religious
Protection Measure, 106th Cong. 73, 175 (1999) (statement of Glenn S. Goord,
Commissioner New York State Department of Correctional Services) (“[E]very correction
administrator in the country recognizes the vital role played by most religious practices
and beliefs in furthering inmate rehabilitation, in maintaining a sense of hope and purpose
among individual inmates and in enhancing overall institutional safety and well-being.
Most inmates who sincerely practice their religious beliefs do not pose institutional
problems. Rather, as a rule of thumb, they promote institutional stability.”).

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prison administrators to allow them to conduct their ministries
effectively and to respect the free exercise rights of prisoners.44 As
one advocate remarked, “Whether prison or on the outside, the brute
fact is that when confronting an overweening bureaucrat, ‘I’ll sue
you’ is much more effective than, ‘I’ll have my state representative
offer a bill changing what you’re doing to me.’”45
While RLUIPA ultimately passed both the House and the Senate
without dissent, a small minority of Congressman, prison authorities,
and state officials asserted that including prisoners under the
protections of RLUIPA would lead to a “flood of frivolous lawsuits”
and consume prison resources.46 Such lawsuits, they claimed, were
likely to include “bizarre” demands for the “recognition of the right to
burn bibles, the right to possess and distribute racist literature, the
right to engage in animal sacrifice and the right to group martial arts
classes.”47
Such concerns about a flood of frivolous suits were unfounded,
even during the Congressional hearing phase of RLUIPA. Witnesses
provided evidence that prisoner lawsuits had not significantly
increased under RFRA—primarily because suits which raised a
RFRA claim also raised constitutional claims—thereby demonstrating
that the situation would likely be no different under RLUIPA.48
Witnesses also noted that any claims brought under RLUIPA would
be subject to The Prison Litigation Reform Act, which curtailed the
ability of inmates to bring trivial lawsuits against prison officials.49
Accordingly, concerns about frivolous lawsuits ultimately carried
little weight in light of the available evidence and statutory law in
place to limit to such claims.

44. See, e.g., Testimony of Jarsoslawicz; Testimony of Colson.
45. Testimony of Colson.
46. See, e.g., 146 CONG. REC. S7,991 (daily ed. Sept. 5, 2000) (statement of Sen.
Thurmond); Protecting Religious Liberty After Boerne v. Flores: Hearing Before the
House Comm. on the Judiciary, Subcomm. on the Constitution, 105th Cong. 59 - 89 (July
14, 1997) (testimony of Jeffrey Sutton, Solicitor, State of Ohio).
47. See, e.g., Testimony of Sutton.
48. Letter from Robert Raben, Ass’t Att’y Gen. to Sens. Hatch and Leahy; Kennedy
Statement.
49. Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in scattered sections of
18 U.S.C., 28 U.S.C., and 42 U.S.C.).

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III. HOW THE ACT OPERATES
A. A Brief Overview of the Act
RLUIPA Section 3 provides as follows:
(a) GENERAL RULE- No government[50] 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.

In addition, RLUIPA specifies that the administrative exhaustion
requirements of the PLRA apply to claims brought under the Act.51
Thus, RLUIPA requires a prisoner52 to prove the following to make
50. RLUIPA defines the term “government” to mean as follows:
(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
. . . for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, 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.

42 U.S.C. § 2000cc-5(4). Notably, this definition excludes the federal government from
the applicability of the prisoner provisions of RLUIPA § 3. However, RFRA continues to
apply against the federal government and provide a cause of action for federal prisoners
against the federal government. Moreover, Section 7 of RLUIPA amended RFRA so that
the scope of “religious exercise” protected by RLUIPA is the same as that protected by
RFRA. See Section 7 of Pub. L. No. 106-274 (Sept. 22, 2000), 114 Stat. 803 (available at
www.rluipa.org) and 42 U.S.C. § 2000bb-2(4).
51. 42 U.S.C. § 2000cc-2(e).
52. For convenience, this article uses the word “prisoner” rather than “institutionalized
persons” to denote the beneficiaries of RLUIPA Section 3. It is worth noting, however,

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out a prima facie claim:
(1) that prison officials have imposed a “substantial burden” on his
“religious exercise” (a merits requirement);
(2) that the “substantial burden” was either (a) imposed in a
program or activity that receives federal funds or (b) affects
interstate commerce (a jurisdictional requirement); and
(3) that he has exhausted any available administrative remedies (an
exhaustion requirement).

If the prisoner succeeds in making out a prima facie claim, then the
Act shifts the burden to the defendant prison officials to demonstrate
that their decision to substantially burden that prisoner’s religious
exercise meets strict scrutiny—i.e., that burdening religious exercise
is the least restrictive means of advancing a compelling government
interest. RLUIPA specifies that if prison officials cannot satisfy strict
scrutiny then a prison is entitled to “any appropriate relief” and
attorney fees.53
The remainder of this section details what a prisoner must prove to
establish the merits, jurisdictional, and exhaustion requirements of
RLUIPA, what prison officials must prove to satisfy their burden of
strict scrutiny, and what remedies are available to a prisoner who
prevails on a RLUIPA claim.
B. The Elements of a Prisoner’s Claim for Relief Under RLUIPA
1. RLUIPA’s Merits Requirement—Demonstrating a Substantial
Burden on Religious Exercise
The threshold inquiry in considering the merits of a prisoner’s
claim under RLUIPA is whether the challenged prison policy54 or
conduct in question “substantially burdens” the prisoner’s “religious
exercise.” If a prisoner fails to demonstrate by appropriate evidence55
that RLUIPA, by including within its scope any “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),” includes not just prisoners, but also persons confined to mental institutions.
53. 42 U.S.C. § 2000cc-2(a).
54. Notably, RLUIPA does not apply to the federal government. See Ish Yerushalayim
v. United States, 374 F.3d 89 (2d Cir. 2004) (construing the definition of “government”
under RLUIPA to not include the federal government). However, federal prisoners may
still vindicate their religious liberty rights by utilizing the provisions of RFRA, which
protects the same scope of religious exercise in the same manner as RLUIPA to bring suit
against the federal government.
55. Because it is the prisoner’s burden to prove a substantial burden on religious
exercise, judgment is appropriate in favor of the defendants where a prisoner fails to

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that there is a substantial burden on his or her religious exercise,
RLUIPA does not apply. Two immediate questions arise, then: what
is a “substantial burden,” and what counts as “religious exercise”?
a. Substantial Burden
With regard to the first question, Congress did not define in the Act
what a “substantial burden” is. Accordingly, it is appropriate to
apply the standard canon of statutory construction that where a term is
not defined in a statute, it is to be given its ordinary or natural
meaning.56 In the case of RLUIPA, this task of giving “substantial
burden” its ordinary meaning is not difficult. The term “substantial
burden” is a term of art that is a familiar part of Free Exercise Clause
jurisprudence,57 and the legislative history of RLUIPA also supports
the position that Congress intended to codify the Supreme Court
jurisprudence on this subject.58 It should be noted that it is another
familiar canon of statutory construction that when Congress codifies a
term of art, then courts should interpret that term consistent with its
established meaning.59
The Supreme Court has articulated what constitutes a “substantial
burden” on several occasions. In Sherbert v. Verner,60 the Court held
that a substantial burden exists when government action or
qualifications placed on benefits and privileges have a “tendency to
inhibit” religious exercise. As an example of such a burden, the
Sherbert Court said that a substantial burden is present when an
individual is required to “choose between following the precepts of
her religion and forfeiting benefits, on the one hand, and abandoning
produce any competent evidence (even if it is only declaration testimony explaining why it
is that the prison policy burdens his or her religious exercise) to demonstrate a substantial
burden. See Piscitello v. Berge, 2003 WL 23095741, at *5 (Apr. 17, 2003) (summary
judgment granted to prison officials where plaintiff offered only a “one sentence”
argument in his brief that RLUIPA was violated and did not introduce any evidence to
show how the prison’s policy had substantially burdened his religious exercise).
56. See, e.g., Turner v. Cook, 362 F.3d 1219, 1227 (1st Cir. 2004).
57. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963).
58. See 146 CONG. REC. S7774-75 (July 27, 2000) (Joint Statement of Sen. Hatch and
Sen. Kennedy) (stating that the term “substantial burden” is to “be interpreted by reference
to existing Supreme Court jurisprudence.”).
59. Morrisette v. United States, 342 U.S. 246, 263 (1952) (when Congress codifies a
term of art “it presumably knows and adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it was taken and the meaning its use
will convey to the judicial mind unless otherwise instructed. In such case, absence of
contrary direction may be taken as satisfaction with widely accepted definitions, not as a
departure from them.”); McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (“In
the absence of contrary indication, we assume that when a statute uses . . . a term [of art],
Congress intended it to have its established meaning.”).
60. 374 U.S. 398, 404 & n.6 (1963).

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one of the precepts of her religion . . . on the other.”61 Similarly, in
Hobbie v. Unemployment Appeals Comm’n of Fla.,62 and Thomas v.
Review Bd. of Ind. Employment Sec. Div.,63 the Court held that a
substantial burden exists when government puts “substantial pressure
on an adherent to modify his behavior and to violate his beliefs.” And
in Lyng v. Northwest Indian Cemetery Protective Ass’n,64 the Court
held that religious adherents can show a substantial burden where the
government’s policy has “a tendency to coerce individuals into acting
contrary to their religious beliefs.”
Though these articulations of the standard do leave open some
room for interpretation at the edges (and may well necessitate future
guidance from the Supreme Court),65 the general contours of this test
as defined by the Supreme Court are straightforward and were
recently synthesized by one appellate court as follows:
The combined import of these articulations [by the Supreme Court]
leads us to the conclusion that a ‘substantial burden’ must place
more than an inconvenience on religious exercise; a ‘substantial
burden’ is akin to significant pressure which directly coerces the
religious adherent to conform his or her behavior accordingly.
Thus, a substantial burden can result from pressure that tends to
force adherents to forego religious precepts or from pressure that
mandates religious conduct.66

61. Id. at 404.
62. 480 U.S. 136, 141 (1987).
63. 450 U.S. 707, 717–18 (1981).
64. 485 U.S. 439, 450 (1988).
65. Lower courts have not always shown consistency in the ways in which they have
restated the substantial burden test. Compare Thiry v. Carlson, 78 F.3d 1491, 1495 (10th
Cir. 1996) (holding that a substantial burden is one that has a “‘tendency to coerce
individuals into acting contrary to their religious beliefs’”) (quoting Lyng, 485 U.S. at
450–51); Jolly v. Coughlin, 76 F.3d 468, 476–77 (2d Cir. 1996) (holding that “a
substantial burden exists where the state ‘put[s] substantial pressure on an adherent to
modify his behavior and to violate his beliefs’”) (quoting Thomas, 450 U.S. at 718);
Islamic Center of Miss., Inc. v. City of Starkville, 840 F.2d 293, 299 (5th Cir. 1988)
(concluding that zoning laws that make religious assemblies “relatively inaccessible within
the city limits” and thereby ensure that “churches, synagogues, and mosques [become]
accessible only to those affluent enough to travel by private automobile” create an
“obvious[] burden [on] the exercise of religion by the poor”) with Christian Gospel
Church, Inc. v. City and County of San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990)
(significant burdens of “convenience and expense” are insufficient to be a substantial
burden); Rector, Wardens & Members of the Vestry of St. Bartholomew’s Church v. City
of New York, 914 F.2d 348, 355 (2d Cir. 1990) (no substantial burden absent “coercion in
religious practices or the . . . inability to carry out [a] religious mission . . .”); Grosz v. City
of Miami Beach, 721 F.2d 729, 739 (11th Cir. 1983) (no substantial burden absent
“prohibition [of] religious conduct per se”). To the extent these different statements lead
to different results, the Supreme Court would be advised to grant certiorari in a particular
case to clarify application of its standard.
66. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).

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Or put more succinctly, the appropriate standard for determining
whether a burden is “substantial” is to ask whether government action
either (1) puts pressure on individuals to modify their religious
behavior or (2) prevents them from engaging in religious conduct, in a
way that is greater than a mere inconvenience. It is also worth noting
that consistent with the normal rigors of facial challenges, plaintiffs
challenging a government policy on its face (as opposed to its
application to them in a concrete situation) must show that under no
set of circumstances can the policy be applied in a way that will not
burden their religious exercise.67
b. Religious Exercise
With regard to the second question of what counts as “religious
exercise” that may not be substantially burdened, Congress took care
to define the term. Moreover, in enacting RLUIPA, Congress
specified68 that RLUIPA’s definition of “religious exercise” would
also apply to RFRA (which, as originally enacted, had essentially left
the term “religious exercise” undefined),69 thereby making a
The Midrash court was summarizing Supreme Court precedent on “substantial burden” in
order to give meaning to Section 2(a) of RLUIPA, which in language essentially identical
to RLUIPA’s prisoner provisions in Section 3, 42 U.S.C. § 2000cc(a)(3)(2004), forbids a
government from “impos[ing] or implement[ing] a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a person . . . unless . . .
imposition of the burden . . . is in furtherance of a compelling government interest and is
the least restrictive means of furthering that compelling interest.” 42 U.S.C. §
20000cc(a)(1)(2004). See also Coronel v. Paul, 316 F. Supp. 2d 868, 880 (D. Ariz. 2004)
(holding that “state action substantially burdens the exercise of religion within the
meaning of the [prisoner provisions of] RLUIPA when it prevents a religious adherent
from engaging in conduct both important to the adherent and motivated by sincere
religious belief.”); Jolly, 76 F.3d at 477 (holding that choice between submitting to a TB
test or adhering to Rastafarian beliefs and enduring medical keeplock constitutes a
substantial burden on religious exercise).
67. See United States v. Salerno, 481 U.S. 739, 745 (1987) (plaintiffs bringing a facial
challenge must show that “no set of circumstances exists” in which the law can be applied
lawfully). Although it appears that no facial challenges have arisen yet under RLUIPA’s
prisoner provisions, courts applying RLUIPA’s land-use sections to facial challenges have
required plaintiffs to show that a statute or policy renders their religious exercise
“effectively impracticable,” Civil Liberties for Urban Believers v. City of Chicago, 342
F.3d 752, 761 (7th Cir. 2003), a standard that is consistent with the gauntlet Salerno has
throw down for facial challenges.
68. Specifically, section 7 of RLUIPA amended RFRA so that the scope of “religious
exercise” protected by RLUIPA is the same as that protected by RFRA. See Section 7 of
Pub.L. 106-274 (Sept. 22, 2000), 114 Stat. 803 (available at www.rluipa.org) and 42
U.S.C. § 2000bb-2(4). Thus, RFRA now provides “the term “exercise of religion” means
religious exercise, as defined in section 2000cc-5 [i.e., RLUIPA] of this title.” 42 U.S.C. §
2000bb-2(4).
69. RFRA, as originally enacted, simply defined “exercise of religion” by reference to
First Amendment jurisprudence, but did not attempt to codify any particular religious
doctrine. See 42 U.S.C. § 2000bb-2(4) (1993).

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significant clarification to the scope of protection afforded to religious
exercise by RFRA.
Specifically, RLUIPA (and RFRA as amended) define religious
exercise as follows:
IN GENERAL—The term ‘religious exercise’ includes any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief.70

There are several important features of this definition, each of
which will be discussed in turn.
i. “Any” religious exercise is protected by RLUIPA
First, like the text of the Free Exercise Clause itself, which does not
limit the range or types of religious exercise eligible for protection,
the Act’s definition makes clear that “any” discrete instance of
religious exercise is covered by the Act. Specifying that “any”
particular practice of religious exercise is protected is of great benefit
to the religious exercise rights of prisoners because it remedies an
especially harsh (and dubious) interpretation of the Turner/O’Lone
test. Courts routinely apply the Turner/O’Lone test to disqualify
claims alleging that the prison had impermissibly burdened a
particular practice of religious exercise by holding that, because the
prison did not deny the prisoner all means of practicing his or her
religion, the fact that it had burdened this discrete act of religious
exercise was of no moment.71 Thus, for example, the Third Circuit
rejected the Free Exercise claim of a Buddhist prisoner that his
religious exercise had been burdened by the prison’s denial a diet that
would not defile his body because the prisoner had alternative means
of exercising his religion such as prayer, meditation, and scripture
study.72
Such a rule allows prisons to provide as few religious
accommodations as they can get away with (especially, perhaps, with
minority or disfavored religions). In addition, it places courts in the
impossible position of deciding what minimum amount of religious
exercise is sufficient for any particular religion. This is a task that
70. 42 U.S.C. § 2000cc-5(7)(A) (2004).
71. See, e.g., DeHart v. Horn, 227 F.3d 47, 55 (3d Cir. 2000) (court must consider
whether the inmate has “alternative means of practicing his or her religion generally, not
whether [the] inmate has alternative means of engaging in [any] particular practice”).
72. Id at 54. See also Friedman v. Arizona, 912 F.2d 328, 332 (9th Cir. 1990) (religious
exercise of Jewish plaintiff not burdened by requiring him to break a command to have a
beard because the prison did not deny all means of exercising his faith).

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judges manifestly lack competence to assume and one in which they
will likely err in proportion to the degree of their unfamiliarity with
the religious faith at issue in the particular case before them.
RLUIPA’s definition of “religious exercise” is significant then, in that
it rejects this rule and its attendant problems and instead provides
prisoners a potential remedy for any discrete act of religious exercise
that is burdened.
A recent Tenth Circuit case illustrates how RLUIPA’s
abandonment of the Turner/O’Lone ‘other means available’ inquiry
will likely expand the scope of religious accommodations under
RLUIPA. In Hammons v. Saffle, a Muslim inmate brought suit under
the Free Exercise Clause, contending that the prison’s policy of
denying him prayer oils for use in his daily prayers substantially
burdened his religious exercise; the district court ruled in favor of the
prison and the Tenth Circuit affirmed, finding that the inmate had
other means available to him to practice his religion and therefore did
not need the prayer oils.73 However, the Tenth Circuit, noting
RLUIPA’s more protective standard, remanded the case to the district
court so that the inmate could pursue his claim under RLUIPA.74
ii. Actions Must Be “Religious” to Be Protected
Though it should be an obvious point, it is worth briefly noting that
RLUIPA, consistent with the Free Exercise Clause, only extends
protection to actions that are religiously motivated.75 This requires a
plaintiff to show two things.
First, a plaintiff must demonstrate that the government action in
question has burdened a “religious belief,” and not a “way of life . . .
based on purely secular considerations” or a “philosophical and
personal” choice.76
The Supreme Court has broadly defined
“religious belief” so as to include all sincere beliefs “based upon a
power or being, or upon a faith, to which all else is subordinate or
73. 348 F.3d 1250, 1256 (10th Cir. 2003). See also Marria v. Broaddus, 2003 WL
21782633, at *13 (S.D.N.Y. July 31, 2003) (fact that prisoner could still “practice certain
aspects of belief” not sufficient to show religious exercise was not substantially burdened
under RLUIPA by absolute ban on his access to religious text that was an “integral part”
of the plaintiff’s daily practice of his beliefs and prohibition of group worship services
with other members of his faith).
74. Hammons, 348 F.3d at 1258.
75. See, e.g., Coronel v. Paul, 316 F. Supp. 2d 868, 876 (D. Ariz. 2004) (RLUIPA
requires a showing that the desired conduct is “motivated by sincere religious belief”).
76. Wisconsin v. Yoder, 406 U.S. 205, 215–16 (1972). See also Ochs v. Thalacker, 90
F.3d 293, 296 (8th Cir. 1996) (“Purely secular views or personal preferences will not
support a Free Exercise Clause claim.”).

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upon which all else is ultimately dependent.”77 Lower courts have
also set forth “useful indicia” in applying this definition to determine
the existence of a religion:
First, a religion addresses fundamental and ultimate questions
having to do with deep and imponderable matters. Second, a
religion is comprehensive in nature; it consists of a belief-system
as opposed to an isolated teaching. Third, a religion often can be
recognized by the presence of certain formal and external signs.78

Though the Supreme Court has stated that “the very concept of
ordered liberty precludes allowing” a person a blanket privilege “to
make his own standards on matters of conduct in which society as a
whole has important interests,”79 the Court has also hastened to make
clear that “[t]he determination of what is a ‘religious’ belief or
practice is more often than not a difficult and delicate task.”80 The
very nature of this inquiry requires courts to proceed with some
humility as they must take heed not to let their own biases (whether
based on reason or their own faith) about what a religious belief
should look like determine the issue.81 For that reason the Supreme
Court has cautioned that “the resolution of that question is not to turn
upon a judicial perception of the particular belief or practice in
question; religious beliefs need not be acceptable, logical, consistent,
or comprehensible to others in order to merit First Amendment
protection.”82 Moreover, a court may “not undertake to dissect
religious beliefs because the believer admits that he is ‘struggling’
with his position or because his beliefs are not articulated with the
77. United State v. Seeger, 380 U.S. 163, 176 (1965); see also id. at 185 (test for
religious belief within meaning of draft law exemptions is “whether beliefs professed . . .
are sincerely held and whether they are, in claimant’s own scheme of things, religious).
This statement is broader than definitions given by earlier Supreme Court justices. See,
e.g., Davis v. Beason, 133 U.S. 333, 342 (1890) (“[T]he term ‘religion’ has reference to
one’s views of his relations to his Creator, and to the obligations they impose of reverence
for his being and character, and of obedience to his will.”); United States v. Macintosh,
283 U.S. 605, 633–34 (1931) (Hughes, C.J., dissenting) (“The essence of religion is belief
in a relation to God involving duties superior to those arising from any human relation.”).
78. Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981) (citing Malnak v. Yogi,
592 F.2d 197, 207–09 (3d Cir. 1979)).
79. Yoder, 406 U.S. at 215–16.
80. Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981).
81. See, e.g., Africa, 662 F.2d at 1032 (courts “must avoid any predisposition toward
conventional religions so that unfamiliar faiths are not branded mere secular beliefs.
Religions now accepted were persecuted, unpopular and condemned at their inception.”)
(internal citations and quotation marks omitted).
82. Id.; see also Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir. 1995) (“A
plaintiff, however, need not hew to any particular religious orthodoxy; it is enough for the
plaintiff to demonstrate that a government has interfered with the exercise or expression of
her or his own deeply held faith.”).

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clarity and precision that a more sophisticated person might
employ.”83 In short, though “[o]ne can, of course, imagine an
asserted claim so bizarre, so clearly nonreligious in motivation, as not
to be entitled to protection,”84 the risks involved in the inquiry of the
state declaring what constitutes a religious belief for a particular
religion requires that any doubts should be resolved in favor of
finding that a particular belief or practice is religious.85 RLUIPA
reflects such an approach by providing that it “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.”86
Second, a plaintiff must demonstrate that the religious belief is
sincerely held.87 The plaintiff must sincerely hold the burdened belief
because the “government need only accommodate the exercise of
actual religious convictions.”88 Protection does not extend—whether
under the First Amendment or RLUIPA—to “so-called religions
which . . . are obviously shams and absurdities and whose members
are patently devoid of religious sincerity.”89 However, the fact that
other members of plaintiff’s faith may have a different view of the
religious obligations of the faith is irrelevant where a plaintiff’s belief
is “different and sincerely held.”90 “[T]he relevant question is not
what others regard as an important religious practice, but what the
plaintiff believes.”91

83. Thomas, 450 U.S. at 715. See also Love v. Reed, 216 F.3d 682, 688 (8th Cir. 2000)
(“It is not the place of the courts to deny a man the right to his religion simply because he
is still struggling to assimilate the full scope of its doctrine.”).
84. Thomas, 450 U.S. at 715.
85. See Note, Toward a Constitutional Definition of Religion, 91 HARV. L. REV. 1056,
1063 (1978) (arguing that “the characterization of a belief as religious would seem to be
beyond the competence of anyone other than the adherent”); Ochs v. Thalacker, 90 F.3d
293, 296 (8th Cir. 1996) (“Courts must be cautious in attempting to separate real from
fictitious religious beliefs.”).
86. 42 U.S.C. § 2000cc-3(g) (2004).
87. Wisconsin v. Yoder, 406 U.S. 205, 215–19 (1972).
88. Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir. 1995).
89. Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir. 1974), cert. denied, 419 U.S. 1003
(1974). See also Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981) (“A First
Amendment inquiry into sincerity . . . address[es] the sincerity with which the claimant
holds the allegedly religious belief itself.”); Stevens v. Berger, 428 F. Supp. 896, 899
(E.D.N.Y. 1977) (discussing sincerity requirement); United States v. Kuch, 288 F. Supp.
439 (D. D.C. 1968) (same).
90. Lewis v. Scott, 910 F. Supp. 282, 288 (E.D. Tex. 1995).
91. Rouser v. White, 944 F. Supp. 1447, 1454 (E.D. Cal. 1996) (citations omitted).

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iii. Religious Exercise Need Not Be “Compelled” by a System of
Religious Belief to Be Protected
Not only does RLUIPA’s definition of “religious exercise” provide
that “any” religious exercise is protected, it also makes explicit that
this protection is not limited to practices that are compelled by the
individual’s religion.92 Thus, religious exercise that some might
claim is discretionary on the part of the believer—e.g., a Catholic’s
desire to pray the rosary, a Muslim’s desire to utilize prayer oils
during daily prayers, or a Jewish believer’s decision to wear a
yarmulke—is also protected and may not be substantially burdened.
This is an important feature of the Act, and, as explained below, is
one designed both to comply with Supreme Court precedent and to
reject the approach taken by some courts in interpreting RFRA that
religious exercise must be mandated in order to be protected.
An examination of decisions discussing substantial burden reveals
that the Supreme Court has never held that religious conduct must be
compelled by the believer’s faith to be protected. To the contrary, the
Court has recognized that religious exercise may be substantially
burdened even where there was no showing that the particular
religious exercise at issue was mandated by the plaintiff’s faith. For
example, in Goldman v. Weinberger, the Court found that a Jewish
serviceman’s practice of wearing a particular yarmulke, “a practice
described by [the serviceman] as silent devotion akin to prayer,” was
religiously motivated conduct eligible for protection under the
substantial burden standard, despite the absence of evidence showing
that this practice was compelled by his Jewish faith.93 And in Frazee
v. Illinois Department of Employment Security, the Court expressly
repudiated a test extending protection only to religious exercise that
was compelled: “[W]e reject the notion that to claim the protection of
the Free Exercise Clause, one must be responding to the commands of
a particular religious organization.”94
92. See 42 U.S.C. § 2000cc-5(7) (2004) (“‘[R]eligious exercise’ includes any exercise
of religion, whether or not compelled by . . . a system of religious belief.”) (emphasis
added).
93. 475 U.S. 503, 509 (1986). The Court went on, however, to rule against the plaintiff,
finding that the military had interests justifying the imposition of the burden on religious
exercise. Id. at 509–10.
94. 489 U.S. 829, 834 (1989). See also Levitan v. Ashcroft, 281 F.3d 1313, 1319 (D.C.
Cir. 2002) (“A requirement that religious practice be mandatory to warrant First
Amendment protection finds no support in the cases of the Supreme Court or of this
court.”); McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir. 2004) (“[A] burdened
practice need not be mandated by the adherent’s religion in order to sustain a prisoner’s
free exercise claim.”) (internal citation omitted).

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The Supreme Court’s aversion to adopting a requirement that
religious exercise be mandated by a faith in order to be protected
flows directly from the Court’s consistent position that “[c]ourts are
not arbiters of scriptural interpretation.”95 To require a court to
inquire into whether a particular religious practice is compelled by the
believer’s faith is to force a court into a role “not within the judicial
function and judicial competence,”96 because it necessitates a
judgment as to what a religion requires of its believers. Such an
outcome would be particularly troubling because the coercive power
of the state would enforce the court’s judgment. Fortunately, such an
unappealing situation is not a part of the Supreme Court’s doctrine.97
If compulsion was a prerequisite, these problems would be even
more pronounced because very often the issue of whether a practice is
mandated by faith arises when the state seeks to defeat a believer’s
claim of substantial burden by introducing testimony of another
member of the believer’s faith who opines that the particular practice
is not mandated. For example, in one lower court case,98 the plaintiff
prisoner, a sincere adherent of Islam, argued that the prison’s failure
to provide him leave to obtain a Friday Juma’ah service substantially
burdened his religious exercise. The prison responded by producing
an affidavit of its Muslim chaplain who testified that in his
understanding of Islam, attending Juma’ah was not required The
court could have avoided a decision on what Islam required and found
that the prison’s policy substantially burdened religious exercise by
completely preventing the plaintiff’s sincerely motivated religious

95. Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 716 (1981).
See also Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church,
393 U.S. 440, 450 (1969) (holding that First Amendment “forbids civil courts” from “the
interpretation of particular church doctrines and the importance of those doctrines to the
religion”); Jones v. Wolf, 443 U.S. 595, 603 (1979) (adopting neutral-principles approach
to resolving church property disputes because it frees courts from deciding “questions of
religious doctrine, polity, and practice”); United States v. Ballard, 322 U.S. 78, 87 (1944)
(“[L]ittle indeed would be left of religious freedom” if courts were allowed to determine
“truth or falsity” of religious beliefs); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or act their faith
therein.”) (emphasis added).
96. Thomas, 450 U.S. at 707.
97. It should be noted, as Ira Lupu has pointed out, that Yoder also does not provide
support for a requirement that religious exercise be mandated in order to be protected.
See Ira C. Lupu, Of Time and the RFRA: A Lawyer’s Guide to the Religious Freedom
Restoration Act, 56 MONT. L. REV. 171, 203 (1995) (noting that the Amish faith does not
mandate withdrawal of teenage children from school).
98. Abdur-Rahman v. Michigan Dep’t of Corr., 65 F.3d 489, 491–92 (6th Cir. 1995).

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conduct. Instead, the court waded into the thicket of what Islam
requires of its adherents and brought the coercive power of the state
down on the side of the prison’s preferred view that Juma’ah was not
required. This use of the views of other religious believers whose
interpretation the state prefers is precisely the kind that the Supreme
Court has held that the state is not competent to make: “Intrafaith
differences . . . are not uncommon among followers of a particular
creed, and the judicial process is singularly ill equipped to resolve
such differences.”99
Judge Posner has eloquently described why the religious judgment
of whether a practice is mandated is not the business of courts or
other government officials:
[R]equir[ing] the courts to determine what practices the plaintiff’s
religion obligates him to follow . . . [means] requiring the court to
determine the authoritative sources of law for the religion in
question and to interpret the commands emanating from those
sources. In the case of hierarchical religions such as Roman
Catholicism this process of identification and interpretation, which
resembles the procedures of legal positivism, is feasible. In the
case of nonhierarchical religions, however, such as Islam, Judaism,
and a multitude of Protestant sects, the process is infeasible, or at
least very difficult and attended with a high degree of
indeterminacy. The danger that courts will find themselves taking
sides in religious schisms, if they must opine on matters of

99. Thomas, 450 U.S. at 715 (rejecting state’s attempt to defeat a claim of substantial
burden by arguing that that the religious exercise of plaintiff, a Seventh Day Adventist,
was not burdened on the basis of testimony of another Adventist that plaintiff’s religious
beliefs were not mandated by the Adventist faith). See also Ward v. Walsh, 1 F.3d 873,
878 (9th Cir. 1993) (“In religious matters, we take judicial notice of the fact that often the
keenest disputes and the most lively intolerance exists among persons of the same general
religious belief, who, however, are in disagreement as to what that faith requires in
particular matters.”); Steven C. Seeger, Restoring Rites to Rights: The Religious
Motivation Test and the Religious Freedom Restoration Act, 95 MICH. L. REV. 1472,
1507–08 (1997) (“Individuals invariably form religious views that differ from those held
by members of the same faith. Because individuals develop personally tailored religious
beliefs, the religious views of other believers cannot be used to contest the beliefs of a
particular claimant . . . . Th[e] right to form one’s own religious beliefs would be
circumscribed if courts could consider the subjective religious views of other individuals
when addressing the avowed beliefs of a particular litigant.”); Douglas Laycock, Towards
a General Theory of the Religion Clauses: The Case of Church Labor Relations and the
Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1391 (1981) (“[E]mphasis on
doctrine and requirements ignores the fluidity of doctrine and the many factors that can
contribute to doctrinal change. A church is a complex and dynamic organization, often
including believers with a variety of views on important questions of faith . . . .
[O]fficially promulgated church doctrine, on which courts too often rely, is not a reliable
indication of what the faithful believe. At best the officially promulgated doctrine of a
large denomination represents the . . . most commonly held view; it cannot safely be
imputed to every believer.”).

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religious obligation, is not a trivial one.100

Courts have also recognized that a compulsion requirement
presents an additional danger of providing less protection for minority
religious faiths. “[W]hile some religions instruct their followers to
obey the commands and prohibitions of the faith, others, especially
those outside the Judeo-Christian tradition, lack the concept of
religious compulsion.”101 For example, “Theravada Buddhism . . . is
a nonduty-based religion, which emphasizes inward spiritual maturity
rather than obedience to religious mandates.”102 Imposition of a test
that requires a showing of religious mandate behind a practice would
have an inevitable disparate impact on the ability of adherents to such
nontraditional religions to exercise their religion free of government
burdens.103
Moreover, even in religions that do expressly prescribe or proscribe
certain acts, a test that only protected such mandated religious
exercise would overlook a huge amount of religious exercise that is
motivated, but not required, by religious belief. For example,
believers may be motivated by their religious belief to fast, sing in the
choir, pray the rosary, or wear a crucifix. Such actions are obviously
very important to believers. Thus courts and commentators have
recognized that a rule requiring compulsion before the state must
recognized a practice as religious exercise eligible for protection
would eliminate a broad swath of religious conduct from
protection.104
100. Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996), judgment vacated on other
grounds, O’Leary v. Mack, 522 U.S. 801 (1997).
101. Coronel v. Paul, 316 F. Supp. 2d 868, 877 (D. Ariz. 2004) (internal citations and
quotation marks omitted).
102. Id.
103. See Seeger, supra note 99, at 1503 (“[T]he compulsion test views the practice of
religion as obedience to a set of sacred commands and prohibitions. This narrow
conception of religion results in . . . foreclos[ing] the opportunity to challenge state action .
. . when the state infringes upon religions that do not compel the conduct of their
followers.”).
104. Mack, 80 F.3d at 1179 (“Many religious practices that clearly are not mandatory . .
. are important to their practitioners, who would consider the denial of them a grave
curtailment of their religious liberty.”); Laycock, supra note 99, at 1390 (“One of the most
common errors in free exercise analysis is to try to fit all free exercise claims into the
conscientious objector category and reject the ones that do not fit. Under this approach,
every free exercise claim requires an elaborate judicial inquiry into the conscience or
doctrines of the claimant. If he is not compelled by religion to engage in the disputed
conduct, he is not entitled to free exercise protection . . . . This approach reflects a rigid,
simplistic, and erroneous view of religion.”); Seeger, supra note 99, at 1499 (“Under the
compulsion test, the state could encroach upon any of these religious practices with
impunity, because those who engage in such noncompulsory conduct would be unable to
establish that the government burdened a compulsory religious practice.”).

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A recent Alabama district court case applying RLUIPA illustrates
how RLUIPA’s rejection of a compulsion inquiry avoids both
disparately impacting minority religions and the problem of the
government deciding what is necessary for religious adherents to
practice their faith. In Limbaugh v. Thompson,105 a group of Native
American religious adherents sued under RLUIPA contending that the
prison’s flat ban on sweat lodges prevented them from performing a
religious purification rite. Lacking a creedal system in their Native
American religion, the plaintiffs did not produce evidence that use of
the sweat lodge was mandated by their religion. The prison responded
by asserting that the plaintiffs had not shown that use of the sweat
lodge was the only means to achieve their goal of purification. In
other words, the prison argued that use of the sweat lodge was not
mandated by the plaintiffs’ religious faith because a sweat lodge was
just one means they could use to purify themselves. The court
rejected this argument, recognizing that RLUIPA does not allow the
issue of whether a practice is mandated to be decisive and pointed out
that if a prison could defeat a claim to substantial burden on the basis
of pointing to some other means of religious exercise preferred by the
prison, it would be the government rather than the religious adherent
who would be choosing what is “orthodox”106 for the plaintiff’s
religion.107
The outcome in Limbaugh is also significant in pointing out
the difference that RLUIPA’s rejection of a compulsion or mandate
element should make in the success of prisoner claims when
compared with the success of prisoner claims under RFRA (prior to
its amendment in 2000). The Limbaugh court is within the Eleventh
Circuit and is of course bound by that court’s precedent. In applying
RFRA prior to its amendment in 2000, the Eleventh Circuit held in
Cheffer v. Reno that RFRA plaintiffs must prove that “their religion
105. No. 93-D-1404-N, slip op. at 2–3 (M.D. Ala. Sept. 29, 2003).
106. Id. at 3. The court reasoned that not only would permitting “prison officials to
determine what is orthodox” violate RLUIPA, but that it would run afoul of Justice
Jackson’s famous maxim that “‘[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force citizens to confess by
word or act their faith therein.’” Id. (quoting W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 642 (1943)).
107. See also Charles v. Verhagen, 220 F. Supp. 2d 937, 948 (W.D. Wis. 2002), aff’d,
348 F.3d 601 (7th Cir. 2003) (finding that policy of denying use of prayer oils by Muslim,
an act of “religiously motivated conduct,” constituted a substantial burden, and rejecting
prison’s argument that use of Islamic prayer oils was not required by Islam because
RLUIPA precludes inquiry into whether “a particular practice is required by the prisoner’s
faith”).

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requires” them to carry out the particular religious practice at issue in
order to be eligible for protection under the substantial burden
standard.108 Thus, but for RLUIPA extending protection to a religious
practice reqardless of whether it is required or compelled, the
Limbaugh court would have been forced to follow Cheffer’s
restrictive definition and rule against the plaintiff.
The Eleventh Circuit was not alone in ignoring the Supreme
Court’s admonition not to become arbiters of what is compelled or
mandated by a particular religious faith. The Fourth,109 Fifth,110 and
Ninth Circuits,111 as well as several district courts112 and state
courts,113 also held that a particular act of religious exercise must be
“required,” “mandated,” or “compelled” in order to be protected
under RFRA’s substantial burden provision. Not only did these courts
ignore Supreme Court precedent barring courts from being arbitrers
of religious practice, they also ignored RFRA’s legislative history in
which Congress considered but declined to enact a compulsion test.114

108. 55 F.3d 1517, 1522 (11th Cir. 1995).
109. Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 172–73 (4th Cir. 1995) (holding
that plaintiffs failed to establish a claim under RFRA’s substantial burden provision
because they “have neither been compelled to engage in conduct proscribed by their
religious beliefs, nor have they been forced to abstain from any action which their religion
mandates that they take” (emphasis added).
110. Hicks v. Garner, 69 F.3d 22, 26 n.22 (5th Cir. 1995) (“To be a ‘substantial
burden,’ the government must either compel a person do something in contravention of
their religious beliefs or require them to refrain from doing something required by their
religious beliefs.”) (emphasis added).
111. Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (“‘The religious adherent . . .
has the obligation to prove that a governmental [action] burdens the adherent’s practice of
his or her religion . . . by preventing him or her from engaging in conduct or having a
religious experience which the faith mandates. This interference must be more than an
inconvenience; the burden must be substantial and an interference with a tenet or belief
that is central to religious doctrine.’”) (quoting Graham v. Comm’r, 822 F.2d 844, 850–51
(9th Cir. 1987)) (alterations in original) (emphasis added).
112. See, e.g., Morris v. Midway Southern Baptist Church, 183 B.R. 239, 251 (Bankr.
D. Kan. 1995). See also district court cases cited infra note 117.
113. See Winters v. State, 549 N.W.2d 819, 820 (Iowa 1996) (requiring a showing that
religious exercise be compelled); Bartley v. Mamoulides, 694 So. 2d 1050, 1052 (La. Ct.
App. 1997) (same).
114. See, e.g., Douglas Laycock, RFRA, Congress, and the Ratchet, 56 MONT. L. REV.
145, 151 (1995) (surveying RFRA’s legislative history and concluding “Congress rejected
the view that only religious compulsion is protected. In committee hearings, lobbyists
offered amendments to change to a compulsion standard, but those amendments went
nowhere.”); Religious Freedom Restoration Act: Hearings on S. 2969 Before the Senate
Comm. on the Judiciary, 102d Cong. 46 (1992) (statement of Oliver S. Thomas on behalf
of the Baptist Joint Committee and the American Jewish Committee) (“[A] law that
protects only religiously compelled acts would exclude many acts that are obviously
religious. Most believers seek to do more than the bare minimum that God requires. Is
prayer compelled? Only on occasion . . . . Is serving as a minister compelled? Not always.
These acts would not be protected by the compulsion test. Clearly, they should be

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The impact of these courts’ decision to narrow the scope of
RFRA’s protection by requiring a showing that the religious practice
was mandated was devastating, especially on prisoner claims. A study
of prisoner RFRA claims from the passage of RFRA in 1993 to its
being declared unconstitutional as applied to the states by Boerne in
1997 reveals that prisoners lost more than ninety percent115 of those
claims, and more than seventy-five percent116 of those unsuccessful
claims failed because the court found there was no showing of
substantial burden. A closer examination of these cases reveals that
the most common reason for the holding of no substantial burden was
a determination that the prisoner had failed to show that the religious
exercise at issue was mandated or required by his faith.117
protected, and are, by RFRA.”); Religious Freedom Restoration Act of 1991: Hearings on
H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the House Comm.
on the Judiciary, 102d Cong. 129 (1992) (letter dated June 22, 1992, from Rep. Solarz to
Rep. Edwards) (“‘[I]t would be a mistake to tighten the language of the Act by confining it
to conduct “compelled by” religious belief.’” (quoting letter dated Feb. 21, 1991, from
Michael W. McConnell, professor, University of Chicago Law School, Edward McGlynn
Gaffney, dean, Valparaiso Law School, and Douglas Laycock, professor, University of
Texas School of Law, to Reps. Solarz and Henry)).
115. Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575, 591 (finding
that 85 of 94 prisoner RFRA claims in federal court ended in judgments against the
prisoner).
116. Id. at 608–15 (finding that 59 of the 85 unsuccessful federal claims were dismissed
for failure to establish a substantial burden).
117. See Weir v. Nix, 114 F.3d 817, 821 (8th Cir. 1997) (dismissing RFRA claim
because prisoner did not show that his faith “mandate[d]” any minimum amount of
congregational worship activity beyond the three hours provided him); Canell v. Jacobson,
No. 96-35110, 1997 WL 75651, at *1 (9th Cir. Feb. 20, 1997) (dismissing RFRA claim
because Sunni Muslim prisoners did not show that limitations on ritual washing conflicted
with a practice “mandate[d]” by their faith); Stefanow v. McFadden, 103 F.3d 1466, 1471
(9th Cir. 1996) (dismissing RFRA claim because CJCC prisoner failed to show that his
religion “require[d]” that he read religious book confiscated by prison authorities); Boyd v.
Arizona, No. 95-16957, 1996 WL 341273, at *2 (9th Cir. June 19, 1996) (dismissing
RFRA claim because Mormon prisoner failed to establish that forbidden practices of
“study[ing] scriptures and praying with his wife daily and “render[ing] physical affection
to his wife while he is in prison” were “mandated” by his faith); Hunter v. Baldwin, No.
95-35330, 1996 WL 95046, at *1 (9th Cir. Mar. 5, 1996) (dismissing RFRA claim because
prisoner failed to show that reading certain religious literature was “mandated” by his
faith); Miller-Bey v. Schultz, No. 94-1583, 1996 WL 67941, at *4 (6th Cir. Feb. 15, 1996)
(dismissing RFRA claim by Moorish Science Muslim prisoner because he did not show
that membership in his faith was “dependent on” possession of the religious identity card
in question); Wynn v. McManus, No. 95-35466, 1996 WL 32110, at *1 (9th Cir. Jan. 26,
1996) (dismissing RFRA claim because prisoner failed to establish that attending Christian
religious service every Sunday was “mandated” by his faith); Abate v. Walton, No. 9415942, 1996 WL 5320, at *5 (9th Cir. Jan. 5, 1996) (dismissing RFRA claim because
prisoner failed to establish that a special religious diet was “mandated” by his faith, the
Ethiopian Orthodox Tewahido Church); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir.
1995) (dismissing RFRA claim because Pentecostal Christian prisoner failed to establish
that the Pentecostal religious activities such as speaking in tongues and laying on of hands
prohibited by the prison were “mandated by his faith”); Abdul-Malik v. Goord, No. 96
CIV. 1021-DLC, 1997 WL 83402, at *6 (S.D.N.Y. Feb. 27, 1997) (dismissing RFRA
claim because Muslim prisoner failed to establish that receiving meat as part of Halal diet

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All of those cases which imposed a requirement that the religious
exercise at issue be compelled, mandated, or required by the
believer’s faith have been effectively overruled by the definition of
religious exercise in RLUIPA (and RFRA as amended) and should no
longer be relied on as good law as courts apply RLUIPA.
Thus, RLUIPA’s definition of religious exercise to include any
religious exercise, whether or not compelled, mandated, or required
by the religious adherent’s faith, is one of the most significant
features of the Act and should result in more prisoners succeeding
under RLUIPA than under RFRA. Not only is it specifically crafted to
conform to Supreme Court precedent concerning the limits of judicial
competence to inquire into religious beliefs, but it removes one of the
biggest obstacles that lower courts had imposed to the success of
prisoner RFRA cases.
iv. Religious Exercise Need Not Be “Central” to a System of
Religious Belief to Be Protected
RLUIPA’s definition of religious exercise also makes explicit that
was “require[d]” by his faith); Reese v. Coughlin, No. 93 CIV. 4748-LAP, 1996 WL
288994, at *7 (S.D.N.Y. July 3, 1996) (dismissing RFRA claim because prisoner did not
establish that possession of tarot cards was “mandate[d]” by his faith); Eskew v. Baker,
Civil No. N-94-2822, 1996 WL 807889, at *3 (D. Md. May 2, 1996) (dismissing RFRA
claim because prisoner did not establish that desired religious practice of reading Ku Klux
Klan literature was “mandated” by his faith); Metheney v. Anderson, 953 F. Supp. 854,
861 (N.D. Ohio 1996) (dismissing RFRA claim because prisoner failed to show that
confiscated Bible study materials prevented him from engaging in activity “mandate[d]”
by his faith); Lucero v. Hensley, 920 F. Supp. 1067, 1073-74 (C.D. Cal. 1996) (dismissing
RFRA claim because Native American prisoner did not establish that possession of animal
hides was “mandate[d]” by his faith); Abdul-Akbar v. Dep’t of Corr., 910 F. Supp. 986,
1008 (D. Del. 1995) (dismissing RFRA claim because Muslim prisoner did not establish
that wearing a kufi was “mandated by his religion”); Muhammad v. City of New York
Dep’t of Corr., 904 F. Supp. 161, 191 (S.D.N.Y. 1995) (dismissing RFRA claim because
prisoner did not show that prison’s “generic Muslim service offends or ignores particular
practices or beliefs that are mandated by NOI teachings”); Crosley-El v. Berge, 896 F.
Supp. 885, 888 (E.D. Wis. 1995) (dismissing RFRA claim because prisoner did not
identify any practice or instrument “‘mandated’ by the Moorish religion” not
accommodated by the general Muslim service); Loden v. Peters, No. 92 C 20209, 1995
WL 89951, at *10 n.4 (N.D. Ill. Mar. 1, 1995) (dismissing RFRA claim because prisoner
did not show that desire to worship nude was “central to and mandated by his religion”);
Reimann v. Murphy, 897 F. Supp. 398, 402 (E.D. Wis. 1995) (dismissing RFRA claim
because prisoner did not show that possession of certain religious literature was “required”
by his faith); Boone v. Comm’r of Prisons, No. CIV. A. 93-5074, 1994 WL 383590, at *8
(E.D. Pa. July 21, 1994) (dismissing RFRA claim because prisoner did not establish that
group religious meetings were “mandated by his faith”); Winters v. State, 549 N.W.2d
819, 820 (Iowa 1996) (dismissing RFRA claim because CJCC inmate did not show that his
religious beliefs “required” him not to share a cell with a black inmate); Bartley v.
Mamoulides, 694 So. 2d 1050, 1052 (La. Ct. App. 1997) (dismissing RFRA claim because
Muslim inmate did not show that being called by a religious name was a compelling
requirement[]” of his religion).

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consideration of whether the religious exercise at issue in the case is
“central” (or fundamental) to a particular religion is irrelevant.118
Accordingly, particular acts of religious exercise are protected from
being substantially burdened under RLUIPA, regardless of whether a
judge (or any other government official) feels they are not of
sufficient importance to a religion to be worthy of protection. Like the
exclusion of whether a religious practice is “compelled” by faith,
RLUIPA’s rejection of a “centrality” inquiry in its definition of
religious exercise is designed to comply with Supreme Court
precedent and correct the error that some lower courts adopted in
restricting the scope of RFRA’s protection.
RLUIPA omits the “centrality” inquiry precisely to comply with the
Supreme Court’s unequivocal admonition to avoid it. Specifically, the
Court stated in Smith:
It is no more appropriate for judges to determine the “centrality” of
religious beliefs before applying a “compelling interest” test in the
free exercise field, than it would be for them to determine the
“importance” of ideas before applying a “compelling interest” test
in the free speech field.119

The Supreme Court identified the problem with a centrality test to
be similar to that posed by the inquiry into whether a particular
religious practice is compelled by the religious adherent’s faith: it
puts the court in the position of evaluating a religious belief system
and making a religious judgment about how central or fundamental a
particular practice is to a religion.120 Where the state and believers
118. See 42 U.S.C. § 2000cc-5(7) (2004) (“‘[R]eligious exercise’ includes any exercise
of religion, whether or not . . . central to[] a system of religious belief.”) (emphasis
added).
119. 494 U.S. at 886–87. The Court also observed, “What principle of law or logic can
be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his
personal faith?” Id. at 887. See also id. at 906 (O’Connor, J., concurring in the judgment)
(“I agree with the Court that . . . ‘[i]t is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith.’”) (citations omitted); id. at 919 (Blackmun, J.,
dissenting) (“I agree with Justice O’Connor that courts should refrain from delving into
questions whether, as a matter of religious doctrine, a particular practice is ‘central’ to the
religion.”); Muslim v. Frame, 897 F. Supp. 215, 220 (E.D. Pa. 1995) (recognizing that the
Smith Court “unanimously rejected a centrality inquiry on the basis of judicial
competence”).
120. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 457–58
(1988) (“[T]he dissent thus offers us the prospect of this Court’s holding that some
sincerely held religious beliefs and practices are not ‘central’ to certain religions, despite
protestations to the contrary from the religious objectors who brought the lawsuit. In other
words, the dissent’s approach would require us to rule that some religious adherents
misunderstand their own religious beliefs. We think such an approach cannot be squared
with the Constitution or with our precedents, and that it would cast the Judiciary in a role
that we were never intended to play.”).

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disagree whether a practice is central to a religion or not, the court is
forced to potentially second-guess believers about what their own
faith teaches and then put the force of the state behind an
interpretation that a particular practice is not central. That, the Court
has held, the state may not do.121
Given the Supreme Court’s clear instruction in Smith and other
cases, numerous lower courts122 since Smith have obeyed this
limitation on the “substantial burden” inquiry and refused to take on
the “misguided enterprise” of measuring the comparative “import of
certain religious practices” by deciding what practices are more
central or fundamental to a particular faith than others.123 Courts have
also recognized that the very concept of “centrality,” like the notion
of a particular act being required by a faith, is one that some minority
religions do not recognize; accordingly, courts have recognized that
not imposing a centrality requirement also serves the goal of not
disadvantaging less mainstream religions.124
121. See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial
ken to question the centrality of particular beliefs or practices to a faith . . . .”). It is true
that the Court has occasionally mentioned in passing that a religious claimant’s views and
practices are “central to their faith.” See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 210
(1972), but the Court never held in Yoder or any other case that a showing of “centrality”
is necessary to state a claim of substantial burden. See LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW 1247 (2d ed. 1988) (“[T]he Court has never specifically required
free exercise claimants to demonstrate that the state requirement burdens a central tenet of
their beliefs.”).
122. See, e.g., Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570 (2d
Cir. 2002) (“Because ‘[t]he free exercise of religion means, first and foremost, the right to
believe and profess whatever religious doctrine one desires,’ courts are not permitted to
inquire into the centrality of a professed belief to the adherent’s religion . . . .”) (quoting
Smith, 494 U.S. at 886–87); Church of Scientology Flag Serv. Org. v. City of Clearwater,
2 F.3d 1514, 1549 (11th Cir. 1993) (stating that inquiry into centrality is foreclosed by
Supreme Court precedent); Kreisner v. City of San Diego, 1 F.3d 775, 781 (9th Cir. 1993)
(same); Salvation Army v. Dep’t of Cmty. Affairs, 919 F.2d 183, 189 n.4 (3d Cir. 1990)
(same); Charles v. Verhagen, 220 F. Supp. 2d 937, 946 (W.D. Wis. 2002) (same);
Cottonwood Christian Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203, 1227 n.12
(C.D. Cal. 2002) (same); McBride v. Shawnee County, 71 F. Supp. 2d 1098, 1101 (D.
Kan. 1999) (same); Warner v. City of Boca Raton, 64 F. Supp. 2d 1272, 1284 (S.D. Fla.
1999) (same); Al-Amin v. City of New York, 979 F. Supp. 168, 171 (E.D.N.Y. 1997)
(same); Blanken v. Ohio Dep’t of Rehab. and Corr., 944 F. Supp. 1359, 1365 (S.D. Ohio
1996) (same); Estep v. Dent, 914 F. Supp. 1462, 1466–67 (W.D. Ky. 1996) (same);
Muslim v. Frame, 891 F. Supp. 226, 230 (E.D. Pa. 1995) (same); Religious Tech. Ctr. v.
F.A.C.T.N.E.T., Inc., 907 F. Supp. 1468, 1472 (D. Colo. 1995) (same); Luckette v. Lewis,
883 F. Supp. 471, 478 (D. Ariz. 1995) (same); Phipps v. Parker, 879 F. Supp. 734, 736
(W.D. Ky. 1995) (same); Campos v. Coughlin, 854 F. Supp. 194, 211 (S.D.N.Y. 1994)
(same).
123. McEachin v. McGuiniss, 357 F.3d 197, 202 (2d Cir. 2004).
124. See, e.g., Coronel v. Paul, 316 F. Supp. 2d 868, 877 (D. Ariz. 2004) (“[N]ot all
religions have practices that are more central than others. ‘[F]aiths that either embrace all
religions, such as certain New Age religions, or groups that support no unifying creed,
such as the Quakers, may not be able to demonstrate that any particular practice is central

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However, despite the Supreme Court’s clear instruction that courts
lack competence to inquire into whether a religious practice is central
or fundamental to an individual’s religious faith, several lower courts
including the Sixth,125 Seventh,126 Eighth,127 Ninth, 128 and Tenth129
circuits and some district courts,130 imposed a “centrality”
requirement in order for religious practice to be protected under
RFRA. The impact of this decision, like the decision of courts to
impose a compulsion requirement discussed above, was to narrow the
scope of RFRA’s protections by enabling the government to defeat
plaintiffs’ claims without the government ever being required to make
its showing that burdening religious exercise was the least restrictive
means of advancing a compelling government interest.
An
examination of prisoner cases decided prior to Boerne reveals that
imposition of the centrality test was another common reason for the
enormous percentage of prisoner cases being dismissed by courts for

to their religious beliefs.’”) (quoting SEEGER, supra note 99, at 1503).
125. Abdur-Rahman v. Michigan Dep’t of Corr., 65 F.3d 489, 491–92 (6th Cir. 1995)
(finding no substantial burden because prisoner’s religious practice of attending Friday
evening Muslim services was not “fundamental” to the claimant’s religion).
126. Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996) (“We hold, therefore, that a
substantial burden on the free exercise of religion, within the meaning of the Act, is one
that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or
constrains conduct or expression that manifests a central tenet of a person’s religious
beliefs . . . .”), vacated on other grounds, 522 U.S. 801 (1997).
127. In re Young, 82 F.3d 1407, 1418 (8th Cir. 1996) (holding that to establish a
substantial burden a plaintiff must demonstrate government conduct “significantly
inhibit[s] or constrain[s] conduct or expression that manifests some central tenet of a
[person’s] individual beliefs,” and “assuming for purposes of analysis that courts can
constitutionally determine the parameters of religious belief, what beliefs are important or
fundamental, and whether a particular practice is of only minimal religious significance”)
(emphasis added).
128. Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (“‘The religious adherent . . .
has the obligation to prove that a governmental [action] burdens the adherent’s practice of
his or her religion . . . by preventing him or her from engaging in conduct or having a
religious experience which the faith mandates. This interference must be more than an
inconvenience; the burden must be substantial and an interference with a tenet or belief
that is central to religious doctrine.’”) (alterations in original) (emphasis added) (quoting
Graham v. Comm’r, 922 F.2d 844, 851 (9th Cir. 1987)).
129. Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (holding that to “exceed
the ‘substantial burden’ threshold, government regulation must significantly inhibit or
constrain conduct or expression that manifests some central tenet of a prisoner’s
individual beliefs, must meaningfully curtail a prisoner’s ability to express adherence to
his or her faith; or must deny a prisoner reasonable opportunities to engage in those
activities that are fundamental to a prisoner’s religion”) (citations omitted) (emphasis
added).
130. See, e.g., Winburn v. Bologna, 979 F. Supp. 531, 535 (W.D. Mich. 1997) (holding
that, to satisfy the substantial burden requirement of RFRA, plaintiff had to show that the
government’s action interfered with a tenet or belief that is central to the religious
doctrine). See also district court cases cited infra note 126.

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failure to establish a substantial burden on religious exercise.131
With the passage of RLUIPA (and the amendment of RFRA), all of
these cases that imposed a centrality requirement have been overruled
and should not be cited as good law. The effect that this should have
on the accommodation of prisoners’ religious exercise is illustrated by
Mayweathers v. Terhune,132 a recent case arising out of a lower court
within the Ninth Circuit. In Mayweathers, a group of Muslim
prisoners challenged California’s prison policy that refused to allow
them to grow one-half inch beards. There was no question in the case
that the prisoners’ desire to wear the beards was religiously
motivated. However, the prisoners did not present evidence that the
practice of growing beards was “central” to their faith, and the prison
put forth evidence to the effect that growing a beard was not even

131. See Weir v. Nix, 114 F.3d 817, 821 (8th Cir. 1997) (dismissing RFRA claim
because fundamentalist Christian prisoner did not show that worshipping on Sunday was a
“central tenet” of his religion); Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th Cir.
1996) (dismissing RFRA claim because CJCC prisoner failed to show that book
confiscated by the prison was “central to his religious practices”); Smith v. Beatty, 82 F.3d
420, No. 95-1493, 1996 WL 166270, at *2 (7th Cir. Apr. 5, 1996) (dismissing RFRA
claim because prisoner failed to establish that participating in communal worship was “of
central importance” to his faith); Hall v. Sullivan, No. 95-1203, 1995 WL 750312, at *1
(10th Cir. Dec. 14, 1995) (dismissing RFRA claim because Nation of Islam prisoner could
not establish that any of the religious literature he received was so “significant to the
practice of his religion” as to burden his free exercise); Abdur-Rahman v. Michigan Dep’t
of Corr., 65 F.3d 489, 492 (6th Cir. 1995) (dismissing RFRA claim because Muslim
prisoner did not establish that attending Friday service was “fundamental” to his religion);
Dickinson v. Austin, No. 93-17350, 1995 WL 394360, at *1 (9th Cir. June 30, 1995)
(dismissing RFRA claim because prisoner failed to establish that wearing a religious
medallion was “central to his religious doctrine”); Collins v. Scott, 961 F. Supp. 2d 1009,
1014 (E.D. Tex. 1997) (dismissing RFRA claim because prisoner failed to establish that
his religiously based modesty belief that he should not be exposed naked to women was
“central” to Muslim religion); Williams v. Roberts, No. 96 C 4290, 1997 WL 13628, at *2
(N.D. Ill. Mar. 20, 1997) (dismissing RFRA claim because prisoner did not show that
Jehovah’s Witness literature was “central” or “essential” to his religious exercise);
Williams v. Muhammad, No. 96 C 4291, 1997 WL 136270, at *3 (N.D. Ill. Mar. 20, 1997)
(dismissing RFRA claim because prisoner failed to show that receiving particular religious
cassette tape was “central” to his faith); Eskew v. Baker, Civil No. N-94-2822, 1996 WL
807889, at *3 (D. Md. May 2, 1996) (dismissing RFRA claim because prisoner did not
establish that desired religious practice of reading Ku Klux Klan literature was “central” to
any religion); Best v. Kelly, 879 F. Supp. 305, 308 (W.D.N.Y. 1995) (dismissing RFRA
claim because “plaintiff has not alleged that attendance at services is essential to following
his religion”); Rhinehart v. Gomez, No. 93-CV-3747, 1995 WL 364339, at *5 (N.D. Cal.
June 8, 1995) (dismissing RFRA claim because Muslim prisoner failed to show that
submitting to tuberculosis test would violate an “essential element of his religion”);
Abdur-Ra’oof v. Dep’t of Corr., 562 N.W. 2d 251, 253 (Mich. Ct. App. 1997) (dismissing
RFRA claim because Muslim prisoner did not establish that attending Friday service was
“fundamental” to his religion); Schuch v. Rogers, 681 N.E.2d 1388, 1390 (Ohio Ct. App.
1996) (dismissing RFRA claim because Native American prisoners “never offered any
evidence of how the requested items were central to the tenets of their religion”).
132. No. Civ. S-96-1582 (E.D. Cal. Feb. 8, 2002), available at
http://www.pacer.psc.uscourts.gov.

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mentioned in the Koran.133 Because the Ninth Circuit had held that
RFRA required a prisoner to meet a “centrality” requirement,134 that
would have been the end of the claim. But applying RLUIPA, the
district court found that the prisoners were not required to show
centrality and that they had carried their burden of showing that the
prison’s no-beard rule imposed a substantial burden on their sincere
religious convictions.135
Thus, RLUIPA’s definition of religious exercise to preclude
inquiry into whether the particular religious exercise at issue is central
or fundamental to the religious adherent’s faith is another very
important feature of the Act. Not only does this definition to exclude
centrality conform to Supreme Court precedent concerning the limits
of judicial competence to inquire into religious matters, but it also
addresses another of the common means lower courts employed under
RFRA to limit the success of prisoner claims. This should increase the
success of prisoners under RLUIPA as compared to RFRA.
***
In sum, then, RLUIPA requires that plaintiffs demonstrate a
substantial burden on their religious exercise. RLUIPA incorporates
the Supreme Court’s standard for substantial burden, which asks
whether government action (1) puts pressure on individuals to modify
their religious behavior or (2) prevents them from engaging in
religious conduct in a way that is greater than a mere inconvenience.
Under RLUIPA’s definition of religious exercise, any discrete act of
sincere, religiously motivated behavior is eligible for protection.
Moreover, whether the religious exercise is compelled or mandated
by the plaintiffs’ faith has no bearing on the inquiry. Whether the
religious exercise is central or fundamental to the plaintiffs’ faith is
similarly irrelevant.
2. RLUIPA’s Jurisdictional Requirements—Demonstrating Either
Spending Clause or Commerce Clause Jurisdiction
Boerne foreclosed Congress’s ability to rely on its Fourteenth

133. Id. slip op. at 7.
134. Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (requiring that plaintiff
establish “interference with a tenet or belief that is central to religious doctrine”) (quoting
Graham v. Comm’r, 822 F.2d 844 (9th Cir. 1987)).
135. Mayweathers, No. Civ. S-96-1582, at 7–9. The case is also another example of
how RLUIPA’s rejection of a compulsion standard benefits prisoner religious exercise
claims, as the court also refused to consider the testimony of a prison iman that growing a
beard was not mandated by the Muslim faith. Id. at 7.

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Amendment Enforcement Clause powers to enact a more protective
standard for the religious exercise of state prisoners than the Supreme
Court has held that the First Amendment requires.136 Accordingly,
rather than relying on the Fourteenth Amendment in enacting
RLUIPA’s prisoner provisions, Congress invoked its Spending and
Commerce Clause powers. Specifically, RLUIPA hinges the
applicability of its protections for prisoners on whether the plaintiff
can establish at least one of two jurisdictional requirements:
[(1)] the substantial burden [on the prisoner’s religious exercise] is
imposed in a program or activity that receives Federal financial
assistance [Spending Clause jurisdiction]; or [(2)] the substantial
burden [on the prisoner’s religious exercise] affects, or removal of
that substantial burden would affect, commerce with foreign
nations, among the several States, or with Indian tribes [Commerce
Clause jurisdiction].137

A plaintiff who fails to affirmatively plead and prove the existence
of one of these two jurisdictional requirements will not be entitled to
relief under the statute.138
a. Spending Clause Jurisdiction
Congress imposed RLUIPA’s requirements as a condition of the
receipt of federal funds. The statute applies where a “government”
imposes a substantial burden on a prisoner’s religious exercise “in a
program or activity that receives Federal financial assistance.” The
term “program or activity” encompasses “all of the operations of . . . a
department, agency, special purpose district, or other instrumentality
of a State or local government.”139 In other words, once a state
department of corrections accepts federal funds, all of its operations
must abide with RLUIPA.140 Thus, to invoke jurisdiction under
136. City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
137. 42 U.S.C. § 2000cc-1(b) (2004).
138. See, e.g., Ephraim v. Angelone, 313 F. Supp. 2d 569, 574 (E.D. Va. 2003)
(dismissing prisoner’s RLUIPA claims because his complaint did “not allege[] sufficient
facts to properly invoke [jurisdiction] . . . [He] has not alleged that the [defendant]
Lunenberg Correctional Center . . . receive[s] federal financial assistance. Nor has Plaintiff
alleged a substantial burden that would affect interstate or foreign commerce. Absent such
a showing, Plaintiff cannot invoke the general rule set forth in subsection (a).”).
139. 42 U.S.C. § 2000d-4a; 42 U.S.C. § 2000cc-5(6) (“The term ‘program or activity’
means all of the operations of any entity as described in paragraph (1) or (2) or section
2000d-4a of this title.”).
140. See also Orafan v. Goord, No. 00-CV-2022 (LEK/RFT), 2003 WL 21972735, at
*7 (N.D.N.Y. Aug. 11, 2003) (“No where [sic] in this definition [of program and activity]
does it state that a receiver of federal funds is at liberty to decide which programs are
under the auspice of RLUIPA.”).

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RLUIPA’s Spending Clause hook, prisoners must prove that the
prison or the department of corrections that supervises their prison
received federal funds. Ordinarily, this should not be a difficult task,
as the federal government gives tens of millions of dollars a year in
grants to state and local departments of corrections.141 Plaintiffs
should be able to use the discovery process to gather the necessary
proof of the specific federal funds received by the department of
corrections that has imposed the burden on their religious exercise.142
b. Commerce Clause Jurisdiction
If for some reason prisoners cannot establish jurisdiction under the
Spending Clause hook, they may also seek to establish jurisdiction
under RLUIPA’s Commerce Clause jurisdictional element.143 In
evaluating whether prisoners have met their burden of proof of
establishing jurisdiction, courts will assess whether the substantially
burdened religious exercise in question—e.g., a denial of a religiously
required diet, refusing access to devotional materials, not providing
worship facilities—”substantially affects interstate commerce.”144
141. See Lynn Bauer & Steven D. Owen, Justice Expenditure and Employment in the
United States, 2001, BUREAU OF JUSTICE STATISTICS BULLETIN 4,
http://www.ojp.usdoj.gov/bjs/pub/pdf/jeeus01.pdf (May 2004) (detailing that the federal
government gave out $881,000,000 in intergovernmental transfers to correctional facilities
in year 2001).
142. Even without the discovery process, details of the federal money that a state
department of corrections receives may be readily found. For example, the amount of
federal funds received by Georgia, Ohio, and California—three states that have challenged
RLUIPA’s constitutionality—may be found on their respective state websites.
Specifically, Georgia’s Department of Corrections received over $18 million in federal
funds in 2003. Sonny Purdue, Fiscal Year 2005: The Governor’s Budget Report 72,
http://www.opb.state.ga.us/Budget/FY05BR.pdf (last visited Dec. 5, 2004). Ohio’s
Department of Rehabilitation and Correction spent $9,136,000 in 2002 and an estimated
$33,680,000 in 2003 from what it called the “Federal Special Revenue Fund Group.” State
of Ohio Office of Budget Management, Executive Budget: Fiscal Years 2004 and 2005 E289, http://obm.ohio.gov/Information/Budget/Bluebook0405/pdf/e_drc.pdf (Feb. 2003).
And the California Department of Corrections recently received a $1 million federal grant
to provide intensive care and supervision to “serious and violent offenders who suffer from
mental health and/or substance abuse problems.” California Department of Corrections,
Federal Grant Awarded to Parole Division, http://www.corr.ca.gov/ParoleDiv/Grant.asp
(last visted Dec. 5, 2004).
143. In United States v. Lopez, 514 U.S. 549, 558–59 (1995), the Supreme Court
described three categories of activity that fall within Congress’s power under the
Commerce Clause. First, “Congress may regulate the use of the channels of interstate
commerce.” Id. at 558. Second, “Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities.” Id. Third, “Congress’s
commerce authority includes the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that substantially affect interstate
commerce.” Id. at 558–59 (citation omitted).
144. Id. at 559.

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Interstate effect is measured by examining the activity at issue “taken
together with that of many others similarly situated.”145 These
aggregated effects fall beyond the commerce power only if they are
“so indirect and remote that to embrace them . . . would effectually
obliterate the distinction between what is national and what is
local.”146
Prisoners should be able to meet this test easily in some of the
typical cases that have arisen thus far under RLUIPA. For example,
where the burden involves failing to provide a religious diet or access
to devotional items, it seems clear that refusing to provide these
accommodations to a particular prisoner, “taken together with . . .
many others similarly situated,” would “substantially affect interstate
commerce.” Even if every commercial transaction involved in
supplying a religious diet or devotional item would occur exclusively
in the state of the prison that imposed this burden on religious
exercise—unlikely though that may be—the aggregate effect of
similar activity elsewhere would still implicate the commerce
power.147 By contrast, the regulated activity in Lopez—possessing a
gun in a school zone—was not one “that might, through repetition
elsewhere, substantially affect any sort of interstate commerce.”148
Moreover, a court would not need to “pile inference upon
inference”149 to get from the regulated category of activity to an effect
on interstate commerce. A state’s refusal to accommodate prisoners’
request for a religious diet150 or access to devotional items151 directly
145. Id. at 556 (quoting Wickard v. Filburn, 317 U.S. 111, 127–28 (1942); see also
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 586 (1997) (relying
on “interstate commercial activities of nonprofit entities as a class” in Commerce Clause
determination, citing Lopez and Wickard) (emphasis added).
146. Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
1, 37 (1937)).
147. See, e.g., Camps, 520 U.S. at 586 (“[A]lthough the [Christian Scientist] summer
camp involved in this case may have a relatively insignificant impact on the commerce of
the entire Nation, the interstate commercial activities of nonprofit entities as a class are
unquestionably significant.”).
148. Lopez, 514 U.S. at 567.
149. Id.
150. Indeed, prisons already engage in a large number of commercial transactions in
providing food for prisoners. The provision of a religiously prescribed diet likewise would
require such transactions, the only difference being the kind of food purchased. The refusal
of a prison to provide such a diet actually prevents a large number of commercial
transactions.
151. Devotional materials, especially highly specialized materials for followers of
minority religions, will often need to be purchased out-of-state or even internationally.
Indeed, interstate purchase and transportation of personal items for prisoners is a daily
occurrence, as prisoners are generally permitted to have certain personal items. Permitting
prisoners to have certain devotional items merely adds to the volume of interstate

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and immediately prevents numerous commercial transactions, i.e.,
those necessary to establish and operate a religious meal program or
to procure the devotional items in question. In addition, applying
RLUIPA in those situations would not threaten “the distinction
between what is national and what is local.”152 RLUIPA neither
replaces state rules for prison administration with federal ones, nor
provides religious adherents a blanket exemption from such state
rules; instead, RLUIPA requires state authorities to provide additional
justification for a limited category of rules, namely, those that both
burden religious exercise and affect interstate commerce.153
In addition, a persuasive argument can be made that Commerce
Clause jurisdiction is applicable to the administration of prisoners—
including whether their religious exercise is burdened—by the fact
that states frequently send some of their prisoners to out-of-state
facilities. This is done for various reasons, including prison
overcrowding. Whenever a state does this, it necessarily engages in
interstate commerce to handle requests for religious and other
personal property from inmates.154 Because “Congress is empowered
to regulate and protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce” and to “regulate those
activities having a substantial relation to interstate commerce,”155
requests for religious accommodation from inmates transferred to outof-state facilities would be subject to regulation under the Commerce
Clause, and accordingly under RLUIPA’s jurisdiction.
Although RLUIPA places the burden on prisoners to prove that the
jurisdictional element of an effect on commerce has been met, the Act
also provides defendants a double measure of protection in such
cases. Specifically, if the sole basis for the applicability of RLUIPA
rests on the Commerce Clause power, a defendant can defeat the
claim that RLUIPA is inapplicable if the burden at issue applied
“throughout the nation would not lead in the aggregate to a substantial
effect on [interstate] commerce.”156

commerce that is already occurring as part of the day-to-day administration of prisons, and
refusing to allow prisoners to possess such materials prevents many commercial
transactions.
152. Lopez, 514 U.S. at 557, 567.
153. See also Johnson v. Martin, 223 F. Supp. 2d 820, 829 (W.D. Mich. 2002) (noting
that “RLUIPA covers regulation of the free exercise of religion, an objectively interstate
activity,” and that religious exercise “affects interstate commerce in a multitude of ways”).
154. Charles v. Verhagen, 348 F.3d 601, 609 n.3 (7th Cir. 2003).
155. Lopez, 514 U.S. at 558–59.
156. 42 U.S.C. § 2000cc-2(g).

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3. RLUIPA’s Exhaustion Requirement—Demonstrating Compliance
with the PLRA
RLUIPA does not relieve prisoners of their obligation under the
Prison Litigation Reform Act157 to first exhaust any administrative
remedies provided by the prison before filing suit.158 “Exhaustion of
administrative remedies as required by [42 U.S.C.] § 1997e, is a
condition precedent to suit” and courts lack discretion to decide
claims on the merits if the exhaustion requirement is not met.159

While a prisoner, to successfully exhaust the administrative
process, need only “provide with his grievance all relevant
information reasonably available to him,”160 prisoners should take

care to explain, with reasonable specificity, how a challenged policy
burdens their religious exercise.161
C. Defending Against a RLUIPA Claim
Once a plaintiff has proved that a prison has imposed a substantial
burden on his or her religious exercise, RLUIPA shifts the burden to
the defendants to prove that this burden is necessitated by a
“compelling government interest,” and that substantially burdening
the plaintiff’s religious exercise is the “least restrictive means” of
achieving that interest.162
1. The Strict Scrutiny Test Applies
Because RLUIPA does not define “compelling government
interest” or “least restrictive means,” these terms must be given their
ordinary meaning.163 Like the statute’s use of the term “substantial
157. 42 U.S.C. § 2000cc-2(e).
158. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” (emphasis added). “The exhaustion requirement of § 1997e(a) is
mandatory, and there is no discretion to waive this requirement or provide continuances of
prisoner litigation in the event that a claim has not been exhausted prior to filing.” Wilson
v. Moore, No. 4:01CV158-RV, 2002 WL 950062, at *2 (N.D. Fla. Feb. 28, 2002).
159. Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002).
160. See, e.g., Brown v. Sikes, 212 F.3d 1205, 1208 (11th Cir. 2000).
161. See, e.g., Henderson v. Sebastian, No. 04-C-0039-C, 2004 WL 1946398 (W.D.
Wis. Aug. 25, 2004) (finding that prisoner’s grievances failed to adequately exhaust claim
that he was improperly denied access to two Taoist texts). See also Kikumura v. Hurley,
242 F.3d 950, 956 (10th Cir. 2001) (“A litigant’s failure to raise issues during an
administrative appeal can constitute a failure to exhaust administrative remedies.”).
162. 42 U.S.C. § 2000cc-1(a).
163. Cf., e.g., Turner v. Cook, 362 F.3d 1219, 1227 (1st Cir. 2004) (noting in the
context of the FDCPA that “a fundamental canon of statutory construction directs us to

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burden,” these are terms of art with an established meaning in
constitutional jurisprudence, familiar to jurist and first year law
student alike as constituting the “strict scrutiny” test.164 Accordingly,
in codifying this test, the statute directs courts to apply established
precedent concerning what constitutes a compelling government
interest and the least restrictive means of furthering that interest.
The Supreme Court has repeatedly emphasized the stringent
nature of the compelling government interest standard. In Wisconsin
v. Yoder, the Court defined a compelling interest as “only those
interests of the highest order.”165 Similarly, in Sherbert v. Verner, the
Court held that “[o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.”166 Moreover,
where the compelling interest standard applies, that test “is not
‘water[ed] . . . down’ but ‘really means what it says.’”167 Examples of
compelling interests include avoiding disclosure of sensitive
governmental information;168 maintaining the tax system,169 enforcing
participation in the social security system,170 protecting an endangered

interpret words according to their ordinary meaning”).
164. See, e.g., Burk v. Augusta-Richmond County, 365 F.3d 1247, 1251 (11th Cir.
2004) (“‘[S]trict scrutiny[]’ [is] the requirement that the government use the least
restrictive means of advancing a compelling government interest.”); Thomas v. Review
Bd. of Ind. Sec. Div., 450 U.S. 707, 718 (1981) (“The state may justify an inroad on
religious liberty by showing that it is the least restrictive means of achieving some
compelling state interest.”); Church of the Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520, 546 (1993) (“A law burdening religious practice that is not neutral or not of
general application must undergo the most rigorous of scrutiny. To satisfy the commands
of the First Amendment, a law restrictive of religious practice must advance ‘interests of
the highest order’ and must be narrowly tailored in pursuit of those interests.” (internal
citations omitted).
165. 406 U.S. 205, 215 (1972) (“[O]nly those interests of the highest order and not
those otherwise served can overbalance legitimate claims to the free exercise of
religion.”).
166. 374 U.S. 398, 406 (1963). (“It is basic that no showing merely of a rational
relationship to some colorable state interest would suffice; in this highly sensitive
constitutional area, ‘[o]nly the gravest abuses [by religious adherents], endangering
paramount interests, give occasion for permissible limitation [on the exercise of
religion].’” (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945))).
167. Church of the Lukumi Babalu, 508 U.S. at 546 (1993) (quoting Employment Div.
v. Smith, 494 U.S. 872, 888 (1990)). See also BLACK’S LAW DICTIONARY 282 (6th ed.
1990) (defining “compelling government interest” as “[o]ne which the state is forced or
obliged to protect. Term used to uphold action in the face of attack grounded on Equal
Protection or First Amendment rights because of serious need for such state action”)
(internal citations omitted); Storzer & Picarello, supra note 34, at 929, 962–63 (2001)
(describing what amounts to a compelling government interest under the land use
provisions of RLUIPA).
168. See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989).
169. See Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989).
170. See United States v. Lee, 455 U.S. 252, 258–59 (1982).

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species;171 preventing “a clear and present, grave and immediate
danger to public health, peace, and welfare”;172 and maintaining
safety and order in public schools.173 In the prison context, clear
examples of compelling government interests include preventing
illegal drug use,174 preventing the spread of infectious diseases,175
suppressing violent gang activity,176 and maintaining institutional
security and safety.177
Constitutional jurisprudence has made clear that “‘least restrictive
means’ is a severe form of the more commonly used ‘narrowly
tailored’ test.”178 The accompanying searching inquiry is what makes
strict scrutiny strict.179 Satisfying the least restrictive means test
requires the government to prove that “no alternative forms of
regulation would combat” the target of the government’s compelling
interests without infringing the protected right.180 A law fails least
restrictive means where the “government could tailor its regulation
more closely to fit . . . conduct likely to threaten the harms it fears.”181
In other words, if the government’s compelling “interests could be
achieved by narrower ordinances [or policies] that burdened religion
171. See United States v. Antoine, 318 F.3d 919, 921 (9th Cir. 2003).
172. First Covenant Church v. City of Seattle, 840 P.2d 174, 187 (Wash. 1992) (finding
a compelling interest under the state constitution) (quotation marks and citations omitted).
173. See Cheema v. Thompson, 67 F.3d 883, 885 (9th Cir. 1995).
174. See, e.g., United States v. Israel, 317 F.3d 768, 771 (7th Cir. 2003).
175. See, e.g., Karolis v. N.J. Dep’t of Corr., 935 F.Supp. 523, 528 (D. N.J. 1996)
(finding a compelling interest in preventing the spread of tuberculosis).
176. See, e.g., Charles v. Frank, No. 04-1674, 2004 WL 1303403, at *2 (7th Cir. Jun. 9,
2004) (noting that “[S]uppressing gang activity to promote a secure and safe prison
environment is indisputably a compelling interest.”).
177. See, e.g., May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (noting that
maintaining prison security is a compelling government interest); Hamilton v. Schriro, 74
F.3d 1545, 1552 (8th Cir. 1996) (“prison safety and security” is a compelling government
interest); Lawson v. Singletary, 85 F.3d 502, 512 (11th Cir. 1996) (“It is well established
that states have a compelling interest in security and order within their prisons.”). See also
Pell v. Procunier, 417 U.S. 817, 823 (1974) (“[C]entral to all other corrections goals is the
institutional consideration of internal security within the corrections facilities
themselves.”).
178. See, e.g., United States v. Hardman, 297 F.3d 1116, 1130 (10th Cir. 2002)(citing
Sherbert v. Verner, 374 U.S. 398, 407 (1963)).
179. Nasir v. Morgan, 350 F.3d 366, 370 n.4 (3d Cir. 2003) (“[A] least-restrictive
means test test[] [is] the hallmark of strict scrutiny analysis.”).
180. Sherbert, 374 U.S. at 407. See also Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)
(“The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion.”).
181. Burk v. Augusta-Richmond County, 365 F.3d 1247, 1255 (11th Cir. 2004). See
also LAWRENCE H. TRIBE, AMERICAN CONSTITUTION LAW § 12-7, at 829 n.23 (2d ed.
1988) (defining “least restrictive means” as “the unavailability of other measures with less
detrimental effect on” the infringed right).

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to a far lesser degree,” the government has not used the least
restrictive means available.182
A recent district court case applying RLUIPA’s strict scrutiny
standard illustrates these principles in action. In Leishman v.
Holland,183 the plaintiff, an adherent of the Asatru religion,
challenged the prison’s absolute ban on the possession of a Rune set.
Runes are “small tablets with ancient symbols on them” and,
according to the plaintiff, the “most important of all ritual tools used
in the faith of Asatru.”184 The court found that the prison had a
compelling interest in preventing gambling because of the security
threat it posed and that a flat ban on a Rune set was rationally related
to that interest because it was possible that runes could be diverted for
gambling use. 185 However, the court held that a flat ban was not the
least restrictive means of achieving that interest because limits could
be placed on plaintiff’s use of the runes (e.g., use in designated areas
only) so that they would not be diverted to gambling.186 That the
prison would incur additional costs in monitoring the runes’ use was
not grounds to find that the prison did not have a less restrictive
alternative to a flat ban.187
Leishman thus illustrates how strict
scrutiny should be applied: where the government’s compelling
interest can be served by alternative policies that impose either no
burden or a lighter burden on religious exercise, the government has
not used the least restrictive means.
Although strict scrutiny is not a novel doctrine, there are several

182. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).
183. No.
01-CV-926
(D.
Utah
May
28,
2004),
available
at
http://www.pacer.psc.uscourts.gov. “Asatru is the term used for the indigenous pagan
religion of pre-Christian northern Europe.” Id.
184. Leishman, slip op. at 3–4 (quoting Odinism/Asatru: A Statement of Facts for
Department of Corrections).
185. Id. at 19–20.
186. Id. at 20.
187. Id. In contrast to the absolute ban adopted by the prison in Leishman, the Seventh
Circuit recently upheld a less draconian policy on the possession of religious items.
Charles v. Frank, No. 04-1674, 2004 WL 1303403, at *2 (7th Cir. Jun. 9, 2004). There, a
prisoner challenged a policy that denied him the ability to openly wear prayer beads of a
certain size in common areas of the prison. Pursuant to the policy, the prisoner was
allowed to wear his prayer beads in his cell and in common areas of the prison so long as
the beads were sufficiently small for them to remain hidden under his shirt. The court
first found that the prison had a compelling interest in preventing gang activity and the
wearing of symbols that could indicate gang association. Turning to the least restrictive
means inquiry, the court noted that it would be a different case if the prison had flatly
prohibited prayer beads. The court found that the prison had chosen the least restrictive
means because allowing the prisoner to wear his beads in common areas, but under his
shirt, was narrowly tailored to achieve the compelling interest. Id.

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important issues raised by RLUIPA’s codification of strict scrutiny in
the prison context that warrant additional discussion.
2. Unlike the Turner/O’Lone standard, RLUIPA Shifts the Burden of
Proof to Defendants
Before RLUIPA, to prevail in a Free Exercise clause challenge to a
prison policy, prison administrators often had to little do more than
assert a legitimate interest for burdening the plaintiff’s religious
exercise, a task that they generally became quite adept at doing.188
This is because under the Turner/O’Lone test, the burden of proof and
production fell wholly on the prisoner to establish that there was no
rational relationship between the prison’s asserted interest and the
policy burdening religious exercise.189
RLUIPA changed this. Not only is a prison policy that burdens
religious exercise now subject to strict, instead of rational basis
scrutiny, but RLUIPA provides that prison administrators now have
the burden of “demonstrat[ing]” a compelling interest and that
substantially burdening religious exercise was the least restrictive
means to achieve that interest.190 Under the Act, “[t]he term
‘demonstrates’ means meets the burdens of going forward with the
evidence and of persuasion.”191 Thus, the government has both the
burden of producing evidence and the burden of persuasion to prove
the existence of a compelling government interest and least restrictive
means. The burden of production is “a party’s obligation to come
forward with evidence to support its claim.”192 “The burden of
persuasion includes the burden of establishing before a fact-finder
that a given proposition is correct.”193 Where “the evidence is evenly
balanced, the party that bears the burden of persuasion must lose.”194
RLUIPA’s assignment to the government of the burden of
production and persuasion reflects the general rule of cases in which
188. As one prison administrator forthrightly stated, “After O’Lone, we tried to
standardize the system statewide and make sure that all reasons for denial of any type of
[religious] practice were based upon security concerns.” Telephone Interview with Imam
A. J. Sabree, Assistant Director of Chaplaincy, Ga. Dep’t of Corr. (Dec. 6, 2001)) (cited in
In the Belly of the Whale: Religious Practice in Prison, 115 HARV. L. REV. 1891, 1894
n.19 (2002)).
189. O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987).
190. U.S.C. § 2000cc-1(a).
191. 42 U.S.C. § 2000cc-5.
192. Dir., Office of Workers’ Compensation Programs v. Greenwich Collieries, 512
U.S. 267, 272 (1994).
193. United States v. Hollis, 569 F.2d 199, 204 n.6 (3d Cir. 1977).
194. Greenwich Collieries, 512 U.S. at 272 (1994).

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strict scrutiny applies: “[t]o survive strict scrutiny . . . a State must do
more than assert a compelling state interest—it must demonstrate that
its law is necessary to serve the asserted interest.”195 This burden of
production and persuasion requires that that the government “build[] a
record that proves that the statutory and regulatory scheme in question
is the least restrictive means of advancing the government’s
compelling interests.”196 Furthermore RLUIPA requires that the
government must “demonstrate[] that imposition of the [substantial]
burden on that person,” (i.e., the plaintiff) advances a compelling
interest by the least restrictive means, not merely that application of
the law in general achieves its compelling interest.197 In other words,
“a court does not consider the prison regulation in its general
application, but rather considers whether there is a compelling
government reason, advanced in the least restrictive means, to apply
the prison regulation to the individual claimant.”198 As one court put
it, while it “is undeniable that, in the abstract, [commonly asserted
interests such as] safety, security, internal order and discipline, and
the management and conservation of resources are ‘compelling
interests[,]’ [i]t does not follow . . . that anything that furthers one or
more of these interests, however marginally, is equally
‘compelling.’”199
At a minimum, the requirement that prison administrators build a
record to prove that burdening religious exercise is the least restrictive
195. Burson v. Freeman, 504 U.S. 191, 199 (1992). See also Hobbie v. Unemployment
Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987) (state laws burdening religions “must
be subjected to strict scrutiny and could be justified only by proof by the State of a
compelling interest”); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995)
(government bears burden of “justify[ing]” classification subject to strict scrutiny); Fulani
v. Krivanek, 973 F.2d 1539, 1542–43 (11th Cir. 1992) (“Under strict-scrutiny analysis,
once a plaintiff has demonstrated the burden . . . the state must show ‘that the law
advances a compelling interest and is narrowly tailored to meet that interest.’”) (internal
citations omitted); Stiles v. Blunt, 912 F.2d 260, 263 (8th Cir. 1990) (“[T]he strict scrutiny
test requires the government to prove that it has a compelling interest.”).
196. United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002). Speculation will
not suffice to carry the burden. See Sherbert v. Verner, 374 U.S. 348, 407 (1963) (“The
[state] suggest[s] no more than a possibility that the filing of fraudulent claims by
unscrupulous claimants feigning religious objections to Saturday work might not only
dilute the unemployment compensation fund but also hinder the scheduling by employers
of necessary Saturday work. . . . [T]here is no proof whatever to warrant such fears of
malingering or deceit as those which the [state] now advance[s].”); Wisconsin v. Yoder,
406 U.S. 205, 224–25 (1972) (demanding “specific evidence” of the interests advanced
and how lifting the burden on religious exercise would affect them).
197. 42 U.S.C. § 2000cc-1.
198. Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001) (explaining government’s
burden of proof under the analgous provisions of the RFRA).
199. Agrawal v. Briley, No. 02C6807, 2004 WL 1977581, at *8 (N.D. Ill. Aug. 25,
2004).

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means of advancing a compelling government interest will make it
less likely than under Turner/O’Lone for prison administrators to
prevail on a motion to dismiss or summary judgment.200 Though in
some instances this may result in cases going to trial, the additional
leverage given to prisoners will increase the chances for cases to be
resolved by settlement or even by the administrative process without
the need for a trial.201
3. Prison Administrators Will Not Be Able to Rely on Merely
Legitimate or Important Interests
RLUIPA’s strict scrutiny test narrows considerably the range of
interests on which prisons may rely to burden religious exercise.
Although prisons will still be able to invoke such compelling
government interests as maintaining prison security and safety (by far
the most frequently cited reason for denying religious
accommodations), lesser interests that merely rise to the level of
“important” or “legitimate” will not pass muster. One reason
sometimes cited for refusing to accommodate a religious practice is
that accommodation will lead to a flood of requests for similar
accommodations.202 that does not suffice as an interest of the highest
order. Moreover, differential treatment for prisoners is commonly
recognized based on such factors as age or medical condition. The
fact that prisons make accommodations based on these factors casts
doubt on the importance of an interest in avoiding envy over
differential treatment to accommodate religious practice.203
Furthermore, because all prisons accommodate at least some religious
200. See, e.g., Pounders v. Kempker, No. 03-2054, 79 Fed. Appx. 941, 943, 2003 WL
22462034 (8th Cir. Oct. 31, 2003) (issue of whether prison’s basis for denying inmate’s
requests for sweat lodge served a compelling interest and was the least restrictive means of
advancing that interest presented factual questions that could not be resolved on a motion
to dismiss).
201. See, e.g., Cotton v. Fla. Dep’t of Corr., No. 02-22760 (S.D. Fla. Mar. 11, 2003),
http://www.rluipa.com/cases/CottonMagistrateRpt.pdf, resulting in a settlement (October
3, 2003) http://www.rluipa.com/cases/CottonSettlement.pdf (settlement provided Jewish
plaintiff with a kosher diet after the court partially denied a motion to dismiss).
202. See, e.g., Udey v. Kastner, 805 F.2d 1218, 1221 (5th Cir. 1986) (finding that “the
probable proliferation of claims” by other prisoners for religious diets was legitimate
grounds for a prison’s refusal to provide prisoner a diet that met the requirements of his
faith); Ben-Avraham v. Moses 1 F.3d 1246 (table), no. 92-35604, 1993 WL 269611, at *2
(9th Cir. July 6, 1993) (same).
203. See Church of Lukumi Babalu v. City of Hialeah, 508 U.S. 520, 547 (1993). (“It is
established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting
an interest “of the highest order” . . . when it leaves appreciable damage to that supposedly
vital interest unprohibited.” (quoting citing Fla. Star v. B.J.F., 491 U.S. 524, 541–42
(1989) (Scalia, J., concurring in part and concurring in judgment))).

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practices, making religious accommodations subject to the feelings of
fellow-prisoners would essentially give to other prisoners a heckler’s
veto over what religions could be accommodated. The inevitable
result would be to disparately impact less favored religions—the more
unusual or disfavored the religion, the more opposition there would
likely to be to its accommodation.
Another reason frequently cited by prisons is the risk that other
prisoners might be envious or jealous if a particular prisoner’s
religious exercise is accommodated.204 Though this has been
recognized as a legitimate penological interest,205 that does not suffice
as an interest of the highest order. Moreover, differential treatment
for prisoners is commonly recognized based on such factors as age or
medical condition. The fact that prisons make accommodations based
on these factors casts doubt on the importance of an interest in
avoiding envy over differential treatment to accommodate religious
practice.206 Furthermore, because all prisons accommodate at least
some religious practices, making religious accommodations subject to
the feelings of fellow-prisoners would essentially give to other
prisoners a heckler’s veto over what religions could be
accommodated. The inevitable result would be to disparately impact
less favored religions—the more unusual or disfavored the religion,

204. See, e.g., Holy Name Society v. Horn, 2001 WL 959408, at *12 (E.D. Pa. Aug. 21,
2001) (denying Catholic prisoners’ free exercise claim seeking religious “fellowship
meals” because allowing fellowship meals to Catholic plaintiffs “would cause resentment
among . . . other Christian prisoners” who are not given fellowship meals) (citations and
quotation marks omitted); Hamilton v. Schriro 74 F.3d 1545, 1551 (8th Cir. 1996)
(denying Native American free exercise claim seeking a sweat lodge because of prison’s
asserted interest in “possible resentment resulting from the erection of an exclusive
religious facility”); Ben-Avraham v. Moses, 1 F.3d 1246 (9th Cir. 1993) (Table Decision
available on Westlaw) (accepting as legitimate reason for burdening religious exercise
prison’s argument that accommodating prisoner’s request for a religious diet “could lead . .
. to resentment by other prisoners”); Friend v. Kolodzieczak, 923 F.2d 126, 128 (9th Cir.
1991)(denying Catholic prisoner’s free exercise claim requesting use of rosaries and
scapulars because “allowing plaintiffs to possess rosaries and scapulars could threaten jail
security by creating an impression of favoritism toward Roman Catholic prisoners, thereby
generating resentment, envy and intimidation.
These are legitimate penological
interests.”); Standing Deer v. Carlson, 831 F.2d 1525, 1529 (9th Cir. 1987) (upholding ban
on plaintiff’s desire to wear Native American religious headgear on basis of prison’s
argument that “special arrangements for one group could create an appearance of
favoritism that could generate resentment and unrest.”).
205. Holy Name Society v. Horn, 2001 WL 959408, at *9 (E.D. Pa. Aug. 21, 2001)
(prison’s interest in “avoiding inmate jealousy” is a “legitimate penological concern”)
(emphasis added).
206. See Church of Lukumi Babalu v. City of Hialeah, 508 U.S. 520, 547 (1993). (“It is
established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting
an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly
vital interest unprohibited.”).

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the more opposition there would likely to be to its accommodation.
Finally, though the cost of implementing new regulations may in
some limited circumstances be a legitimate grounds for continuing to
burden religious exercise,207 the Supreme Court has expressly rejected
cost as a compelling government interest.208 Lower courts have
consistently followed suit in rejecting cost and other monetary
consideration as a sufficient justification for the infringement of
fundamental rights under the strict scrutiny standard.209 Similarly,
courts have held that a government may not deliberately budget in a
way that will prevent it from meeting its civil rights obligations.210
The overriding concern in these cases is that if cost is allowed to
207. See, e.g., Beerheide v. Suthers, 82 F. Supp. 2d 1190, 1200 (D. Colo. 2000) aff’d,
Beerheide v. Suthers 286 F.3d 1179 (10th Cir. 2002), (stating that “in the abstract, the
impact on DOC Food Service’s budget [of providing a kosher diet] is a valid concern . .
.”). Even in cases where courts have recognized that cost is a legitimate concern in
settings, however, it has had to be more than de minimis to justify the imposition of
burdens on the religious exercise rights of inmates. See, e.g., Turner v. Safley, 482 U.S.
78, 90–91 (1987); Hammons v. Saffle, 348 F.3d 1250, 1255, 1257 (10th Cir. 2003);
Beerheide, 82 F. Supp. 2d at 1196. Though courts differ on what constitutes de minimis
cost in prison situations, all courts agree that the religious exercise rights of prisoners
cannot simply be denied outright in the absence of a significant financial concern on the
part of prison officials. Turner, 482 U.S. at 90–91; Hammons, 348 F.3d at 1255, 1257;
Beerheide, 82 F. Supp. 2d at 1196. In Beerheide, for instance, the court concluded that
because providing kosher meals to inmates would consume a mere 0.158 percent of the
prison food service’s annual budget, denying prisoners such meals would violate their First
Amendment rights because the cost of these meals was so small. Beerheide, 82 F. Supp.
2d at 1200.
208. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 263 (1974) (holding
that “[t]he conservation of the taxpayers’ purse is simply not a sufficient state interest” to
withstand strict scrutiny).
209. See, e.g, Pederson v. Super Ct. of L.A., 130 Cal. Rptr. 2d 289, 298 (Cal. Ct.. App.
2003) (holding that cost-shifting and “saving money” are not compelling state interests); O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1186 (10th
Cir. 2003) (government cannot satisfy strict scrutiny by citing an “increased need for
resources”) Finley v. Nat’l Endowment for the Arts, 100 F.3d 671, 683 n.23 (9th Cir.
1996) (protecting taxpayers from “unwanted expenditures” is not a compelling interest);
Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1280 (10th Cir. 1996) (“A city
or state’s desire for federal funds is not a compelling government interest.”); Loder v. City
of Glendale, 34 Cal. Rptr. 2d 94, 105 (Cal. Ct. App. 1994) (holding that “controlling
expenses” does not constitute “a compelling interest in securing a fundamental right”);
Mills v. Reynolds, 837 P.2d 48, 54 (Wyo. 1992) (preventing “increased insurance costs”
not a sufficient reason for violating fundamental right); Boren v. Dep’t. of Employment
Dev., 130 Cal. Rptr. 683, 690 (Cal. Ct. App. 1976) (“When a statutory classification is
subject to strict scrutiny, the state must do more than show that the exclusion saves
money”); Hunter v. N. Mason High Sch., 539 P.2d 845, 850 (Wash. 1975) (“[W]e cannot
uphold [the challenged] . . . statutes simply because they serve to protect the public
treasury.”); Smith v. Sullivan, 553 F.2d 373, 378 (1977) (“‘[I]nadequate resources can
never be an adequate justification for depriving any person of his constitutional rights.’”)
(quoting Hamilton v. Love, 328 F. Supp. 1182, 1194 (E.D. Ark. 1971)).
210. See, e.g., Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49 (1st Cir. 2004) (holding
that municipality was required to include in its annual budget a sum sufficient to satisfy
the judgment in a civil rights case).

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suffice as a compelling governmental interest, virtually any
government-sponsored rights infringement could be justified. Indeed,
as the court in Robinson v. City of Seattle observed, “governments’
interest in cost and efficiency are all-encompassing. Virtually any
intrusion could be justified if cost and efficiency were considered
compelling interests in the constitutional sense.”211
To be sure, a few courts that have suggested in dicta that cost
considerations might amount to a compelling government interest.212
But these courts have simply ignored, let alone attempted to
distinguish, the Supreme Court’s holding in Memorial Hospital and
the vast weight of lower court precedent to the contrary.
Additionally, in regards to cost, very little differentiates prisons from
other governmental institutions operating on budgets, so there is no
convincing reason to treat cost differently there than, for instance, in
the police force or the school system. In short, allowing cost to be a
compelling interest in the prison context lacks a strong legal
justification and risks undermining the strict scrutiny standard as
applied elsewhere.
4. Prisoners can defeat assertions of a compelling government
interest where the prison allow similar conduct that damages the
asserted interest
Even where prison administrators do cite a genuinely compelling
government interest (such as prison security and safety) as grounds
for burdening religious exercise, RLUIPA’s strict scrutiny test
provides prisoners with a valuable means to rebut that showing.
Specifically, a prisoner can show that a prison’s asserted compelling
government interest is in fact “not compelling” by pointing to conduct
that the prison permits that produces “substantial harm or alleged
harm of the same sort” that the prison claims it is preventing by
burdening the prisoner’s religious exercise. 213 This flows from the
well-established principle of “strict scrutiny jurisprudence that a law

211. Robinson v. City of Seattle, 10 P.3d 452, 469 (Wash. Ct. App. 2000).
212. See Jenkins v. Angelone, 948 F. Supp. 543, 548 (E.D. Va. 1996) (suggesting that
“budgetary restraints” in prison administration could be a compelling interest); Hamilton
v. Schriro, 863 F. Supp. 1019, 1024 (W.D. Mo. 1994) (noting in dicta that “cost concerns
may be shown to be compelling governmental interests in the prison setting”).
213. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546–47 (1993)
(“Where government restricts only conduct protected by the First Amendment and fails to
enact feasible measures to restrict other conduct producing substantial harm or alleged
harm of the same sort, the interest given in justification of the restriction is not
compelling.”).

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cannot be regarded as protecting an interest ‘of the highest order’ . . .
when it leaves appreciable damage to that supposedly vital interest
unprohibited.”214
The facts of a recent case, Ickstadt v. Dretke,215 illustrate how this
principle should work. In Ickstadt, a group of five Orthodox Jewish
prisoners sued pro se to challenge Texas’ prison policy forbidding
them from having one-quarter beards. Because there was no real
dispute that forbidding their beards substantially burdened their
religious exercise, the case turned on whether Texas could satisfy
RLUIPA’s strict scrutiny standard. In conclusory fashion, the court
accepted Texas’ position that the no-beard policy served a compelling
interest in maintaining prison safety by preventing contraband from
being hidden in beards and that completely forbidding beards was the
least restrictive means to serve that policy, even though prisoners with
medical conditions were allowed to grow beards.216 However, the
court failed to properly apply the rigors of the strict scrutiny test.
Allowing prisoners to grow beards for medical reasons, which also
poses the potential of doing appreciable damage to the interest of
preventing contraband from being hidden in facial hair, fatally
undermines Texas’ assertion that denying the plaintiffs the ability to
grow a quarter-inch beard serves a compelling interest.217
Another means that prisoners may use to undermine an asserted
compelling interest in a particular policy is to introduce evidence
demonstrating that another well-run prison accommodates the
religious practice without appreciable damage to the supposed
compelling interest. As the Supreme Court has pointed out, “[w]hile
not necessarily controlling, the policies followed at other well-run
institutions would be relevant to a determination of the need for a
particular type of restriction.”218 Thus, for example, a prisoner could

214. Id. at 547.
215. No.
H-02-1064
(S.D.
Tex.
Apr.
2,
2004),
available
at
http://www.pacer.psc.uscourts.gov.
216. Id. slip op. at 20.
217. See also F.O.P. v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (holding that
police department’s enforcement of no beard policy that precluded Sikh officers from
having beards for religious reasons failed “heightened scrutiny” under the Free Exercise
Clause because city’s interests in having a no-beard policy were undermined by their
allowance of beards for medical reasons).
218. Procunier v. Martinez, 416 U.S. 396, 414 n.14 (1974). See also Turner v. Safley,
482 U.S. 78, 97–98 (1987) (reasoning that the fact that Federal Bureau of Prisons
generally allowed marriages suggested that there were alternatives to state prison’s
prohibition of allowing inmates to marry).

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respond to the claims made by the prison in Wilson v. Moore219 that
insuperable threats to security would be raised by allowing a Native
American sweat lodge by pointing to the fact that other prison
systems, e.g., Wisconsin’s Department of Corrections,220 allow sweat
lodges. At the very least, such a demonstration that other prisons are
able to accommodate the requested religious practice creates a
genuine issue of material fact as to whether a prison’s absolute ban of
sweat lodges is the least restrictive means of achieving its interests.
Naturally, the more specific evidence the prisoner offers of how the
other prison accommodate the religious practice in question, the
stronger the argument.221
5. How Strict Is RLUIPA’s Strict Scrutiny Standard?
One final important issue to address in considering RLUIPA’s
strict scrutiny standard is the degree of deference that courts ought to
give the judgment of prison officials when applying that standard.
Put another way, how strict is the evaluation of the government’s
reasons for burdening religious exercise that RLUIPA codifies? The
question is an important one given the history of the way in which
courts answered that question when applying RFRA’s strict scrutiny
standard to prisoner claims.
As discussed above, prisoners lost the vast majority of RFRA
claims, most often on substantial burden grounds because courts
inserted compulsion and centrality requirements that made it more
difficult for prisoners to establish a substantial burden. However, for
the few claims that courts did allow to pass the substantial burden
threshold, another challenge confronted prisoners—a decision by
some courts to apply a watered down version of strict scrutiny that
gave greater deference to the government than is typically given
under strict scrutiny. Professor Lupu has accurately described this
undercutting of RFRA’s strict scrutiny requirement:
219. Wilson v. Moore, 270 F. Supp. 2d 1328, 1353 (N.D. Fla. 2003) (rejecting
plaintiff’s First Amendment claim requesting a sweat lodge finding that prison’s security
concerns were rational under Turner v. Safley test, despite existence of sweat lodge in
other state prisons).
220. See Tainter v. State of Wis. Dep’t of Health and Family Services, 2003 WL
23200348 (W.D. Wis. Aug. 5, 2003) (noting that Wisconsin prisons provide access to
sweat lodge ceremonies every other month).
221. See, e.g., Farrow v. Stanley, 2004 WL 224602, *10 (D. N.H. Feb. 5, 2004) (noting
“reasonableness” of plaintiff’s argument that “the maintenance of sweat lodges at as many
as thirty other[] prisons shows that Defendants’ security concerns [for denying a sweat
lodge at this prison] are overstated,” but denying a preliminary injunction because plaintiff
did not produce “substantial evidence” to support this argument).

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The most common instrument of . . . weakening [RFRA’s strict
scrutiny test] . . . involved smuggling in some unspecified measure
of expediency or practicality into the calculation of “least
restrictive means.” Rather than ask whether the state’s means were
least restrictive (and upholding RFRA claims when the means
could not be so characterized), some courts asked whether the
alternative, less-religion restrictive means were so expensive,
cumbersome, or inconvenient that the state could not reasonably be
expected to use them. If the alternative means failed this inquiry,
these courts upheld the challenged practice, even though it was
demonstrably not the least restrictive.222

Typical of this approach was Arguello v. Duckworth.223 In that
case, the court upheld a prison’s absolute ban on a Native American
prisoner accessing sacred herbs. Although the herbs themselves were
not illegal, the prison prohibited them because the herbs were
sometimes shipped in a form resembling marijuana. Notably, the
court did not require the prison to explore less restrictive alternatives
to an absolute ban such as requiring that the herbs be ordered and
shipped to the prison from a pre-approved source not dealing in
contraband, or that the herbs be ordered through the prison chaplain’s
office and brought into the prison through that office, or that the herbs
be shipped to the prison only in a form that does not resemble
marijuana. Instead, citing the discretion that should be given to
prison administrators, the court simply accepted at face value the
prison’s conclusory statement that banning the herbs was necessary to
effect its compelling interest in stopping contraband from entering the
prison.224 Other courts have taken a similarly lenient approach in
applying the least restrictive means standard.225

222. Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575, 596 (1998)
(internal citations omitted).
223. 1997 WL 14162 (7th Cir. Dec. 17, 1996).
224. Id. at *2.
225. See, e.g., Jenkins v. Angelone, 948 F.Supp. 543, 547 (E.D. Va. 1996) (denying
vegan diet in order to serve prison’s asserted interest of maintaining nutritional standards
and summarily rejecting less restrictive alternative of providing nutritional supplements);
Reimann v. Murphy, 897 F. Supp. 398, 403 (E.D. Wis. 1995) (only requiring a showing
that flat ban on receiving religious newspaper “furthers” compelling interest in quelling
prison violence, not that it was least restrictive means of doing so); George v. Sullivan,
896 F. Supp. 895, 898 (W.D. Wis. 1995) (upholding ban on access to certain religious
literature in order to further interest in prison safety without requiring exploration of less
restrictive alternative to flat ban on access); Best v. Kelly, 879 F.Supp. 305, 309
(W.D.N.Y. 1995) (requiring a showing only that preventing plaintiff from attending
religious services “legitimately furthered the needs of internal security and order,” not that
it was least restrictive means of doing so). A few courts dissented from the weakening of
the strict scrutiny approach and engaged in more searching inquiries of the evidence
submitted by prison administrators to meet their burden. See, e.g., May v Baldwin, 109

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It is significant that courts never cited the text of RFRA itself when
applying the “least restrictive means” standard to prisoner cases in
such a way as to extend substantial discretion to prison officials.
Instead, courts relied on a bit of legislative history found in a Senate
committee report on RFRA, which stated, “the committee expects that
the courts will continue the tradition of giving due deference to the
experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good
order, security and discipline, consistent with consideration of costs
and limited resources.”226 Armed with this citation, courts were able
to water down the least restrictive means test with an amorphous
standard of deference divorced from the language of the statute and
bound only by the predilections of the particular judges hearing the
case. The predictable result was that courts hearing prisoner RFRA
claims “substitute[d] the rhetoric of judicial deference for meaningful
scrutiny.”227
RLUIPA, like RFRA, codifies the strict scrutiny standard.
However, also like RFRA, statements in RLUIPA’s legislative history
could be seized upon to water down the least restrictive means
standard by extending prison administrators broad discretion and not
requiring them to explore the full range of alternatives that are less

F.3d 557, 564–65 (9th Cir. 1997) (holding that prison officials cannot “satisfy the demands
of RFRA with mere assertions of unfulfilled security objectives. Where a prisoner
challenges their justifications, prison officials must set forth detailed evidence, tailored to
the situation before the court, that identifies the failings in the alternatives advanced by the
prisoner.”); Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (“‘[T]he state must
do more than simply offer conclusory statements that a limitation on religious freedom is
required for security, health or safety in order to establish that its interests are of the
highest order.’”) (quoting Weaver v. Jago, 674 F.2d 116, 119 (6th Cir. 1982) (per
curiam)).
226. See e.g., Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 1997) (quoting S.Rep. No. 111,
103d Cong., 1st Sess. 9–11, reprinted in 1993 U.S.C.C.A.N. 1892, 1900); Mack v.
O’Leary, 80 F.3d 1175, 1180 (same); Harris v. Chapman, 97 F.3d 499, 501 (11th Cir.
1996) (same); Davie v. Wingard, 958 F.Supp. 1244, 1250–51 (S.D. Ohio 1997) (same);
Hamilton v. Schriro, 74 F.3d 1545, 1554 (8th Cir. 1996) (citing Senate committee report
and concluding based on RFRA’s legislative history, that “prison officials ordinarily must
have wide latitude within which to make appropriate limitations to maintain institutional
security.”).
227. Block v. Rutherford, 468 U.S. 576, 593 (1984) (Blackmun, J., concurring). See
also Madison v. Riter, 240 F. Supp. 2d 566, 578 n.10 (W.D. Va. 2003), overruled on other
grounds 355 F.3d 310 (4th Cir. 2003) (“Some courts, in examining prison regulations
under RFRA and RLUIPA, have softened the compelling interest test to allow speculative
administrative judgments concerning security and cost to suffice to allow the regulation to
survive strict scrutiny . . . It is also an approach that is dangerous for the protection of the
constitutional rights of individuals outside of prison. Watering down strict scrutiny in a
result-oriented manner in the prison context could subvert its rigor in other fields where it
is applied.”) (internal quotation and citation omitted).

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burdensome on religious practice.228 The issue then of how strict is
RLUIPA’s strict scrutiny standard comes down to whether courts will
be willing to follow the normal rules of statutory interpretation.
Those rules require that words in statutes are to be given their
ordinary meaning and that legislative history is only examined where
there is some genuine ambiguity.229 Here, RLUIPA’s text is clear—it
unambiguously directs courts to apply strict scrutiny by choosing the
language of “compelling interest” and “least restrictive means.”230
Certainly, Congress could have chosen to codify a standard such as
“intermediate scrutiny”231 that would have given prison administrators
more deference, yet also increased the level of protection for prisoner
religious exercise beyond that of the Turner/O’Lone rational basis
standard. But Congress did not do that, and RLUIPA must be
enforced according to its terms.232
To be sure, the history of RFRA’s application indicates that courts
do not relish the task of closely examining the judgments of prison
administrators and may feel that they lack the expertise to do it. It
may also be fair to say that judges may not view a command to
strictly scrutinize burdens on prisoners as having the same moral

228. Senators Hatch and Kennedy approvingly cited the Senate Committee Report
discussing RFRA’s application to prisons:
What the Judiciary Committee said about that standard in its report on RFRA is
equally applicable to This Act:
[T]he committee expects that courts will continue the tradition of giving due deference
to the experience and expertise of prison and jail administrators in establishing
necessary regulations and procedures to maintain good order, security and discipline,
consistent with consideration of costs and limited resources. ‘At the same time,
however, inadequately formulated prison regulations and policies grounded on mere
speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the
act’s requirements. Senate Report 103-111 at 10 (1993).

146 CONG. REC. S7775 (daily ed. July 27, 2000).
229. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (courts should
“not restort to legislative history to cloud a legislative history to cloud a statutory text that
is clear”).
230. See Gordon v. Pepe, No. Civ. A 00-10453, 2004 WL 1895134, *4 (D. Mass. Aug.
24, 2004) (rejecting state’s legislative history based argument that RLUIPA does not
require strict scrutiny).
231. See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (test under intermediate
scrutiny is whether asserted government interest is “substantial” and whether there is “a
[reasonable] fit between the legislature’s ends and the means chosen to accomplish those
ends.”) (emphasis added).
232. See, e.g., Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1231–32 (9th Cir.
2003) (“[I]t is elementary that the meaning of a statute must, in the first instance, be
sought in the language in which the act is framed, and if that is plain, . . . the sole function
of the courts is to enforce it according to its terms.”) (quoting Carson Harbor Village, Ltd.
v. Unocal, Corp., 270 F.3d 863, 878 (9th Cir. 2001).

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imperative as strictly scrutinizing racial classifications,233 contentbased censorship of speech,234 or burdens posed on the religious
exercise of citizens who have not committed crimes.235 Nevertheless,
Congress has unambiguously declared in RLUIPA that strict scrutiny
applies. A choice by courts to water down the strict scrutiny standard
in this area would not only thwart Congress’s intent as expressed in
RLUIPA’s plain language, but would also undermine the strength of
that standard in other areas where it protects the incursion of the
government on fundamental rights.
***
In sum, then, where a plaintiff establishes a substantial burden on
religious exercise, RLUIPA shifts the burden of production and
persuasion on the government to satisfy strict scrutiny; this requires
that the government build a record that proves that burdening
religious exercise is the least restrictive means of advancing the
government’s compelling interests. Only interests of the highest
order, such as maintaining prison safety and security, suffice.
Interests such as cost or potential envy of other inmates are not
compelling. To satisfy the least restrictive means test requires the
government to prove that no alternative forms of regulation would
combat the government’s compelling interests without burdening
religious exercise. Prisoners can undermine the government’s
showing by pointing to other conduct that the government allows that
does damage to the asserted interest, or to the fact that other prisons
allow the desired religious accommodation. Congress codified strict
scrutiny in RLUIPA, not a lesser form of scrutiny that justifies giving
extensive deference to the government’s reasons for burdening
religious exercise. Courts must enforce the standard that Congress
actually codified.
D. RLUIPA’s Remedies
RLUIPA provides that “[a] person may assert a violation of [the

233. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984).
234. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).
235. See, e.g., Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) (strict scrutiny
applies where religious exercise is substantially burdened pursuant to a system of
individualized assessments); Employment Div. v. Smith, 494 U.S. 872, 886 n.3 (1990)
(“Just as we subject to the most exacting scrutiny laws that make classifications based on
race . . . or on the content of speech, . . . so too we strictly scrutinize governmental
classifications based on religion.” (internal citations omitted); 42 U.S.C. § 2000cc(1)(a)
(strict scrutiny applies where a land use regulation is implemented in a way that
substantially burdens religious exercise).

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Act] as a claim or defense in a judicial proceeding and obtain
appropriate relief against a government.”236 In the normal case, a
prisoner is likely to be the plaintiff pursuing a claim. However, this
provision also allows a prisoner to raise RLUIPA as a defense in
judicial proceedings such as parole hearings where the state may seek
to enforce parole conditions that substantially burden religious
exercise.237 Courts have unanimously held that RLUIPA has no
retroactive application, so Plaintiffs may only recover for conduct that
occurred after the Act’s passage.238
“Appropriate relief” under RLUIPA includes “equitable,
declaratory, and monetary relief.”239 In addition, at least one court
has held that because intentional violations of federal law may serve
as the basis for recovery of punitive damages under § 1983,
intentional violations of RLUIPA may merit the award of punitive
damages.240 Because “the loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable
injury,” injunctive relief should be generally available for prison
regulations that substantially burden religious exercise.241
Money damages are likely to be especially difficult for prisoners to
obtain due to the availability of immunity defenses. State department
of correction systems are an arm of the state; therefore, while
injunctive relief is available against a state department of
corrections,242 damages are foreclosed by the Eleventh
Amendment.243 Prisoners may still attempt to obtain damages by
suing in their individual capacities officials who created or enforced
the prison policy that burdened religious exercise.244 However,
236. 42 U.S.C. § 2000cc-2(a).
237. Cf. United States v. Israel, 317 F.3d 768 (7th Cir. 2003) (prisoner argued that
parole condition enforced by federal government substantially burdened religious exercise
in violation of RFRA).
238. Ingram v. Canavan, No. 01-11804, slip op. at 16 (D. Mass. Mar. 24, 2004),
available at http://www.pacer.psc.uscourts.gov (holding that RLUIPA does not apply
retroactively to conduct that occurred prior to its passage); Alexander v. Roberts (E.D. La.
2003) (same); Orafan v. Goord, 2003 WL 21972735, at *8 (N.D.N.Y. Aug. 11, 2003)
(same); Cancel v. Mazzuca, 2003 WL 1702011, at *6 (S.D.N.Y. Mar. 28, 2003); Wilson v.
Moore, 2002 WL 950062, at *5 n.3 (N.D. Fla. Feb. 28, 2002) (same).
239. Storzer & Picarello, supra note 34, at 975 (collecting authority).
240. See Ahmad v. Furlong, No. 01-F-1164 slip op. at 49 (D. Col. Aug. 5, 2004)
(holding that punitive damages are available for RLUIPA prisoner claim) (on file with the
author).
241. Elrod v. Burns, 427 U.S. 347, 373–74 (1976).
242. See, e.g., Hale v. Arizona, 993 F.2d 1387, 1398–99 (9th Cir. 1993) (holding that
state department of corrections is arm of the state entitled to state sovereign immunity).
243. Edelman v. Jordan, 415 U.S. 651, 653 (1974).
244. See, e.g., Orafan v. Goord, 2003 WL 21972735, *9 (N.D.N.Y. Aug. 11, 2003)

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qualified immunity is likely to provide a sturdy defense in most cases.
Qualified immunity protects government officials sued in their
individual capacity from liability for performing discretionary
responsibilities so long as they have not violated “clearly established
statutory or constitutional rights of which a reasonable person would
have known.”245 Accordingly, officials may avoid liability under
RLUIPA by showing either (1) that RLUIPA was not violated or (2)
that it was not clearly established at the time the violation occurred
that their actions violated RLUIPA.246 Officials will frequently be
able to prevail on the second part of the test because the fact intensive
nature of the substantial burden and strict scrutiny standards is likely
to make it sufficiently indeterminate that the law was clearly
established that their conduct was unlawful at the time of the
violation.247 Finally, a prisoner’s claim to damages may also be
weakened if the government takes advantage of RLUIPA’s safe
harbor provison and remedies the substantial burden on religious
exercise by changing its policies.248
Congress also provided that attorney fees are available for a
prisoner who is a “prevailing party” in a RLUIPA action.249 To be a
“prevailing party” entitled to attorney fees, the prisoner must
ordinarily obtain a judgment on the merits or a settlement agreement
enforced through a consent decree.250 In addition, any attorney fees
(holding that RLUIPA allows suits for damages against prison officials in their individual
capacities).
245. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
246. Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding that the first step in the
qualified immunity analysis is to determine whether a violation of the statute or
constitution occurred and the second is whether the right was clearly established at the
time of the violation).
247. See, e.g., Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)
(en banc) (“For the law to be clearly established to the point that qualified immunity does
not apply, the law must have earlier been developed in such a concrete and factually
defined context to make it obvious to all reasonable government actors, in the defendant’s
place, that ‘what he is doing’ violates federal law”) (emphasis added).
248. See 42 U.S.C. § 2000cc-3(e). That safe harbor provision provides that “[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.”
249. See 42 U.S.C. § 1988(b) (“In any action or proceeding to enforce a provision of . .
. the Religious Land Use and Institutionalized Persons Act of 2000 . . . the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the
costs.”).
250. See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health, 532 U.S.
598, 604 (2001) (“enforceable judgments on the merits and court-ordered consent decrees
create the ‘material alteration of the legal relationship of the parties’ necessary to permit
an award of attorney’s fees” to a prevailing party).

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for which a prisoner is eligible are subject to the limitations of the
Prison Litigation Reform Act.251
IV. THE SUCCESS OF RLUIPA CLAIMS ON THE MERITS
Although a great deal of the litigation under RLUIPA thus far has
focused on its constitutionality, there has also been a sufficient
quantity of litigation on the merits of the claims that it is possible to
evaluate whether RLUIPA is achieving its goals of enhancing the
protection of prisoners’ religious exercise. Specifically, research252
has uncovered forty-six cases that have addressed, in some form,253
the merits of RLUIPA claims. In examining the data of these prisoner
RLUIPA cases, most of them fall into one of the following four
general categories:
(1) challenges to dietary restrictions; (2)
challenges to grooming restrictions; (3) challenges to group worship
restrictions; (4) challenges to restrictions on access to religious
literature and devotional items.254

251. See 42 U.S.C. § 1997e(d). That provision provides that fees shall not be awarded
unless 1) the fee was “directly and reasonably incurred in proving an actual violation of
the plaintiff’s rights” protected by a statute under which a fee may be awarded and 2) the
amount of the fee is “proportionately related to the court ordered relief for the violation” or
was “directly and reasonably incurred in enforcing the relief ordered for the violation.” Id.
Moreover, the fees cannot be greater than 150 percent of the hourly rate established under
section 3006A of Title 18, which is a “rate not exceeding $60 per hour for time expended
in court or before a United States magistrate [United States magistrate judge] and $40 per
hour for time reasonably expended out of court, unless the Judicial Conference determines
that a higher rate of not in excess of $75 per hour is justified for a circuit or for particular
districts within a circuit, for time expended in court or before a [United States magistrate
judge] and for time expended out of court.”
252. Most of these forty-six cases consist of reported cases. Some other unreported
cases were either drawn from the PACER database, which provides access to some district
court decisions, or from www.rluipa.org, which has links to details of some unreported
cases.
253. This number includes cases that have ended in a judgment, cases addressing the
merits of a RLUIPA claim in the context of resolving a motion for summary judgment, a
motion to dismiss, or whether it would be futile to allow the complaint to be amended to
include a RLUIPA claim, and cases that the parties have settled publicly.
254. A few of the reported RLUIPA claims brought thus far involve other refusals to
modify prison practices to accommodate religious exercise that do not fit into any of the
above categories. See, e.g., Williams v. Bitner, 285 F. Supp. 2d 593, 605 (M.D. Pa. 2003)
(denying summary judgment to defendants on RLUIPA claim because requiring Muslim
inmate to handle pork substantially burdened his religious exercise); Steele v. Guilfoyle,
76 P.3d 99, 102 (Okla. Civ. App. 2003) (requiring Muslim to share prison cell with nonMuslim does not pose a substantial burden on religious exercise); Rogers v. Hellenbrand,
2004 WL 433976, at *6 (W.D. Wis. Mar. 4, 2004) (holding there is no substantial burden
by prisoner merely being exposed to religious views that were not his own at a prison
holiday party).

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A. Cases Challenging the Denial of a Religious Diet
Several cases have involved challenges to prison policies refusing
to accommodate kosher or other religious diets and have almost all
met with success under RLUIPA. There has been little dispute in
these cases that refusing to provide a diet that accords with the
teachings of a prisoner’s faith is a substantial burden.255 Accordingly,
the only real question has turned on whether the prison can satisfy
strict scrutiny. Reasons cited by prisons for denying a religious diet
have included the increased cost of food and preparation materials,
the potential for creating the perception of favoritism by other
inmates, and the risk of a flood of other religious diet requests.256
Because, as discussed supra, none of these reasons amount to a
“compelling government interest,” it is not surprising that most
RLUIPA diet cases have resulted in courts denying motions to
dismiss or summary judgment by the prison257 and/or ended in
255. See, e.g., Gordon v. Pepe, No. Civ. A 00-10453-RWZ, 2004 WL 1895134, *4 (D.
Mass. Aug. 24, 2004) (denying prison officials summary judgment on their claim that they
had not substantially burdened the religious exercise of a Rastafarian prisoner by denying
him a religious diet); Agrawal v. Briley, No. 02 C 6807, 2003 WL 22839813, *1 (N.D. Ill.
Nov. 25, 2003) (“Denying Plaintiff a nutritious diet that he can consume while being
faithful to his religious beliefs placed a substantial burden on the exercise of his
religion.”). But see Washington v. County of Santa Barbara, Civ. No. B168091, 2004 WL
1926131, at *3 (Cal.App. 2 Dist. Aug. 31, 2004) (prisoner failed to establish a substantial
burden because even “[a]ccepting as true the allegation that [prisoner] was sometimes
presented with some food at dinnertime that would have violated his dietary proscriptions
had he eaten it, he was routinely given a peanut butter sandwich substitute to
accommodate his religious requirements”); Holiday v. Giusto, No. CIV.03-01385-AS,
2004 WL 1792466, at *3–6 (D. Or. Aug. 10, 2004) (delay of 4-18 days to process religious
diet request did not amount to a substantial burden). Though some cases under the Free
Exercise Clause questioned whether a religious dietary practice must be mandated by the
faith in order to be protected, see, e.g., Eddy v. Norrish, No. 95-15033, 1996 WL 468643,
*3 (9th Cir. Aug. 16, 1996), as discussed supra, RLUIPA’s definition of religious exercise
has removed that issue.
256. See, e.g., Gordon v. Pepe, No. Civ. A 00-10453-RWZ, 2004 WL 1895134, *4 (D.
Mass. Aug. 24, 2004); Motion to Dismiss, Cotton v. Fla. Dep’t of Corr., (S.D. Fla. 2002)
(No. 02-22760) (on file with author).
257. Madison v. Riter, 240 F. Supp. 2d 566, 569 n.2 (W.D. Va. 2003) (holding that
prison’s denial of a kosher diet to Hebrew Israelite could not meet RLUIPA’s strict
scrutiny standard) overruled on other grounds by Madison v. Ritter, 355 F.3d 310 (4th Cir.
2003); Goodman v. Snyder, No. 00 C 0948, 2003 WL 715650, at *5 (N.D. Ill. Feb. 27,
2003) (holding that prison’s denial of lacto-vegetarian to Wiccan inmate could not meet
RLUIPA’s strict scrutiny standard); Gordon v. Pepe, No. Civ.A.00-10453, 2004 WL
1895134, at *4 (D. Mass. August 24, 2004) (denying motion to dismiss plaintiff’s
RLUIPA claim seeking a vegetarian diet in accordance with his Rastafarian faith); Lindell
v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (finding that complaint alleging, among
other things, denial of a diet in accordance with inmate’s Wotanist faith, “states a claim
under RLUIPA”). Cf. Ulmann v. Anderson, No. Civ. 02-405-JD, 2004 WL 883221, at *7
(D.N.H. Apr. 26, 2004) (recognizing potential substantial burden from failing to provide
kosher diet, but holding there was no RLUIPA violation under the circumstances where
plaintiff was incarcerated for a year but only requested a kosher diet during his last 12

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favorable judgments or settlements for the plaintiff.258 RLUIPA even
led one state to change its policy after settling one RLUIPA diet suit
so as to ostensibly make a kosher diet available to all sincere
adherents of Orthodox Judaism.259 Without RLUIPA it is unlikely that
Florida would have changed its policy, as the Eleventh Circuit (which
has jurisdiction over Florida) had previously ruled that increased cost
was a legitimate reason under the Turner/O’Lone test for denying a
kosher diet.260 RLUIPA, then, is having a substantial effect on the
ability of prisoners to prevail on religious diet claims.261

days of incarceration).
258. See Agrawal v. Briley, No. 02 C 6807, 2004 WL 1977581, *4–10 (N.D. Ill. Aug.
25, 2004) (granting summary judgment to plaintiff on his claim that denying him a diet
free of meat and eggs in accordance with the Vaishnaya Hindu religious beliefs of plaintiff
unless he secured documentation from a religious authority of his need for that diet
violated RLUIPA); Thompson v. Vilsack, 328 F. Supp. 2d 974, 980 (S.D. Iowa 2004)
(granting summary judgment in favor of Jewish prisoner on RLUIPA claim that prison had
substantially burdened his religious exercise by requiring him to pay a “co-pay” in order to
receive kosher meals); Love v Evans, No. 2:00-CV-0091 (E.D. Ark. Nov. 20, 2001)
(entering judgment after trial in favor of plaintiff on his RLUIPA claim seeking a kosher
diet); Cotton v. Fla. Dep’t of Corr., No. 02-22760 (S.D. Fla.) (settlement agreement
providing plaintiff a kosher diet reached after court had earlier denied motion to dismiss
plaintiff’s
RLUIPA
claim)
(available
at
http://www.rluipa.com/cases/CottonSettlement.pdf); Cooper v. California No. C02-3712
(E.D. Cal.) (settlement agreement providing plaintiff a kosher diet reached after plaintiff
brought RLUIPA claim) (on file with the author); Hamilton v. Va. Department of Corr.,
No. 3:04CV262 (E.D. Va.) (on file with the author). Only one court, Ickstadt v. Dretke,
No. H-02 1064 (S.D. Tex. Apr. 2, 2004) (S.D. Tex. Apr. 4, 2004), has held that RLUIPA
does not require a prison to provide prisoners religious diets. In a case brought by five
Jewish prisoners in Texas, the trial court accepted a prison official’s affidavit stating in
general terms that it would cost too much to provide a kosher diet, even though the
affidavit did not even say how much more it would cost or explain the basis for its cost
determination. The court simply noted that the prisoners, who were proceeding pro se, had
not put in any evidence to rebut that affidavit. Future cases litigating this issue in Texas
would do well to put in evidence demonstrating that other prison systems are able to
provide kosher diets at a reasonable cost, see ,e.g., Expert Report of Gary Friedman
(listing over 25 states, in addition to the Federal Bureau of Prisons, that provide a kosher
diet) (on file with the author), and cite the litany of precedent rejecting cost as a
compelling interest.
259. Charles Rabin, Jewish inmates to get kosher meals; After a Jewish inmate is
granted kosher meals, the Florida Department of Corrections says such meals will be
offered to all Jewish inmates, Miami Herald, Dec. 6, 2003. California has also agreed to
provide a kosher diet to other Jewish inmates after settling one kosher case under
RLUIPA. See Associated Press, Inmate Wins Right to Kosher Meals, Contra Costa Times,
Dec. 14, 2003.
260. Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1987). Florida repeatedly cited
Martinelli as a reason for denying a kosher diet to Jewish prisoners who filed internal
grievances.
261. A recent case decided by the Montana Supreme Court illustrates this. The Court
applied the Turner reasonableness test and rejected the prisoner’s claim seeking religious
meals. The Court expressly noted that the prisoner had not brought suit under RLUIPA,
which would have required evaluating his claim under a more stringent standard. See Cape
v. Crossroads Correctional Center, 99 P.3d 171, 177 n.1 (Mont. 2004).

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1. Cases Challenging Prison Grooming and Clothing Policies
Prisoners from a variety of religious backgrounds—Muslim,
Jewish, Rastafarian, Native American—have used RLUIPA to
challenge policies forbidding them from having a beard, growing their
hair longer than a certain length, or wearing certain religious
headcoverings or other clothing. Significantly, unlike courts that
addressed this question under RFRA’s old definition of religious
exercise, every court to address the question under RLUIPA’s
definition of religious exercise has held that such prohibitions do
constitute a substantial burden on religious exercise, regardless of
whether growing a beard or hair of a certain length is mandated by the
plaintiff’s religion.262
Accordingly, resolution of challenges to grooming regulations has
focused exclusively on whether the prison can satisfy strict scrutiny.
Prisons generally assert that limiting beard and hair length removes a
hiding place for contraband and helps to prevent inmates from
changing their appearance (which could aid their ability to escape).
Thus far, the majority of cases to resolve this issue under RLUIPA
have held that prisons have failed to carry their burden of proof on
this issue. Although they have accepted that the prisons’ asserted
reasons may sometimes satisfy strict scrutiny, the majority of courts
have held that that a flat prohibition on religious exemptions from
grooming policies without regard to either (1) the length of the
requested beard or haircut or (2) whether exemptions are allowed for
medical reasons may not satisfy strict scrutiny.263 Three courts

262. Collins-Bey v. Thomas, No. 03 C 2779, 2004 WL 2381874, at *2 (N.D. Ill. Oct.
25, 2004) (forcing plaintiff to cut his hair over his religious objection substantially
burdened his religious exercise); Mayweathers v. Terhune, 328 F. Supp. 2d 1086 (E.D.
Cal. 2004) (ruling in favor of Muslim prisoners who desired to wear beards); Hoevenaar v.
Lazaroff, 276 F. Supp. 2d 811, 817 (S.D. Ohio 2003) (ruling in favor of Native American
prisoner seeking to wear hair in a sacred kouplock) overruled on other grounds Hoevenaar
v. Lazaroff, No. 03-4119, 2004 WL 1664043 (6th Cir. July 23, 2004); Toles v. Young, No.
7:00-CV-210, 2002 WL 32591568, at *9 (W.D. Va. Mar. 6, 2002) (requiring Hebrew
Israelite prisoner to cut hair and beard over his religious objection substantially burdened
his religious exercise). Cf. Boles v. Neet, 333 F. Supp. 2d 1005 (D. Colo. 2004) (Jewish
prisoner’s claim that prison substantially burdened his religious exercise by refusing to
allow him to wear a yarmulke while being transported for medical treatment stated a claim
under RLUIPA).
263. Collins-Bey, No. 03 C 2279, 2004 WL 2381874, at *4 (denying prison’s motion
for summary judgment because prison failed to produce evidence that forced cutting of
plaintiff’s hair over his religious objection was “in furtherance” of its asserted interest in
prison safety); Mayweathers, 328 F. Supp. 2d at 1095 (granting injunction against
enforcement of grooming policy against Muslim inmates, because policy’s prohibition of
all beards, even those of only one-half inch or less, represented an “exaggerated response”
to concern of inmates changing their appearance to enhance ability to escape and was not

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deciding this issue under RLUIPA have applied what appears to be a
relaxed form of strict scrutiny and have rejected challenges to
grooming regulations on that basis.264
Given that prisoners almost universally lost challenges to grooming
policies under the Turner/O’Lone test and RFRA, 265 the fact that
prisoners have either been able to prevail or beat back summary
judgment motions in several such challenges under RLUIPA suggests
that the Act is having a positive impact on the religious exercise of
prisoners for these types of claims. Moreover, RLUIPA has led some
states to voluntarily change their grooming policies. For example,
New York changed its rules after RLUIPA was passed to allow
least restrictive means given availability of daily visual inspections of inmates); Thompson
v. Scott, 86 Fed. Appx. 17, 19 (5th Cir. 2004) (fact that prisoner’s hair was in accordance
with Texas department of correction’s general hair length policy created a genuine issue of
material fact as to whether prison warden had a compelling government interest in
imposing an even shorter hair length policy than the general policy); Taylor v. Cockrell,
No. H-00-2809 (S.D. Tex. Sept. 25, 2002) (allowing exemptions to no-beard policy for
one-quarter inch beards worn for medical reasons, but denying one-quarter inch beard
sought by Muslim inmate for religious reasons failed strict scrutiny); Hoevenaar, 276 F.
Supp. at 824 (enjoining “blanket application of the grooming regulation” without any
religious exceptions is not the least restrictive means of advancing interest in preventing
change of inmate appearance as applied to plaintiff’s desire to grow a “kouplock,” a “twoinch square of hair” that would not significantly change plaintiff’s appearance were he to
cut it off) overruled on other grounds by Hoevenaar v. Lazaroff, No. 03-4119, 2004 WL
166403 (6th Cir. July 23, 2004). See also Young v. Goord, 67 Fed. Appx. 638, 640 n.1 (2d
Cir. 2003) (reversing dismissal of Rastafarian challenge to prison regulation limiting
length of his beard because court failed to apply RLUIPA’s strict scrutiny test); People v.
Peterson, No. 7687/01, 2002 WL 31387540, at *4 (N.Y. Sup. Sept. 5, 2002) (stating in
dicta that it was doubtful that requiring Rastafarian prisoner to shave his beard was the
least restrictive means to advance a compelling government interest in preventing
prisoners from easily changing their appearance in light of availability of “computer
imaging” technology, but dismissing claim because state court was not the “proper” place
to resolve questions about RLUIPA’s constitutionality); Wyatt v. Terhune, 315 F.3d 1108
(9th Cir. 2003) (remanding case to district court to allow Rastafarian inmate to amend his
complaint to plead a RLUIPA claim challenging hair length regulations).
264. Ickstadt v. Dretke, No. H-02 1064 (S.D. Tex. Apr. 2, 2004) (rejecting challenge by
Orthodox Jewish prisoners to policy forbidding religiously motivated quarter-inch beards,
even though such beards were allowed for medical reasons without harm to prisoner’s
asserted safety concerns); Limbaugh v. Thompson, No. 93-D-1404-N, slip op. at 2 (M.D.
Ala. Sept. 29, 2003) (Native American religious adherents’ challenge to hair length
regulations failed under modification of strict scrutiny test which did not require a showing
of least restrictive means but merely required defendants to “articulate[] legitimate reasons
based on compelling interest in prison safety and security.”); Toles v. Young, No. Civ.A.
7:00-CV-210, 2002 WL 32591568, at *10 (W.D. Va. Mar. 6, 2002) (allowing Hebrew
Israelite prisoner the choice of forced cutting of his hair and beard or being kept in
segregated administrative confinement was least restrictive means of advancing
compelling government interests in prison security, reducing gang activity, identifying
inmates, and sanitation).
265. See, e.g., Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997) (ruling in favor of prison in
RFRA challenge to grooming standards); May v. Baldwin, 109 F.3d 557 (9th Cir. 1997);
Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545 (8th
Cir. 1996); Davie v. Wingard, 958 F. Supp. 1244 (S.D. Ohio 1997); Clark v. Stotts, No.
93-3258-DES, 1996 WL 583454 (D. Kan. Sept. 9, 1996).

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exemptions for inmates who are members of “a religion which has an
established tenet against the trimming of beards.”266
B. Cases Challenging Restrictions on Group Worship and Special
Ceremonies
Very few religions, if any, are solitary activities. Rather, most
involve regular services or special ceremonies in which fellow
members of the religion gather to participate in corporate worship,
rituals and sacraments, fellowship, counseling with a spiritual leader
and other activities in which they meet to encourage one another in
their shared faith. Prison walls, of course, do not allow for the exact
replication of all the activities of a fully functioning church, temple,
or mosque, but the desire of religious prisoners to gather with fellow
members of their faiths is still strong, and most prisons in the United
States seek to make at least some allowance for members of a
common religion to assemble. Some prisons have gone even further
and established faith-based wings for members of particular faiths.
Nonetheless, prisons also frequently place restrictions on group
worship for some religious groups, and those policies have been
challenged under RLUIPA.
Most challenges to prison restrictions on inmate participation in
group worship activities fall into one of the following two categories:
(1) the prison offers the religious service the prisoner desires to attend
(e.g., the prison provides space for a Muslim Jumu’ah service), but
the prison does not allow the prisoner to attend for some reason (e.g.,
attendance would require exempting the prisoner from a work
schedule), or (2) the prison completely prohibits the particular
religious service (e.g., a Native American sweat lodge ceremony, a
dedicated time of group worship for members of a religion, or a
separate service for Shiite Muslims) that prisoners request as part of
their religion. RLUIPA’s more expansive definition of religious
exercise is having a very significant effect on the ability of plaintiffs
to prevail on both of these two types of claims.
Under the Free Exercise Clause, courts often denied challenges to
group worship restrictions on the reasoning that prisoners had other
266. See Young v. Goord, 67 Fed. Appx. 638, 641 n.1 (2d Cir. 2003) (discussing
change in prison policy concerning beard lengths implemented in 2001 after RLUIPA was
passed). The existence of New York’s policy allowing religious exemptions from its
grooming policies may also be a vehicle for prisoners challenging grooming policies in
other states to use to undermine a prison’s policy that a no exemption policy is the least
restrictive means of advancing its interests. See supra note 262 and accompanying text.

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means to exercise their faith (often ones of the solitary kind like
prayer, meditation, or scripture reading).267 Courts applying RFRA
also frequently rejected challenges to group worship restrictions by
strictly applying a requirement that prisoners show that the particular
service or ceremony was mandated or central to their faith.268
RLUIPA’s protection of any discrete act of religious exercise and
removal of the compulsion and centrality requirement from the
definition of religious exercise removes these obstacles and makes a
showing of substantial burden on these types of claims relatively
straightforward. Accordingly, nearly every court to address the issue
thus far under RLUIPA has held that a flat prohibition on the ability
of prisoners to attend or participate in a particular religious service or
ceremony of their faith is a substantial burden, because it completely
prevents them from engaging in that religious conduct in a way that is
greater than a mere inconvenience.269 Moreover, where the prisoner’s
religion has beliefs and practices that distinguish it from other
denominations of his or her religion, it is a substantial burden to give
the prisoner the choice of worshipping with those who do not share

267. See, e.g., O’Lone, 482 U.S. at 351–52 (denying Muslim prisoner claim seeking
right to attend Ju’muah services on the basis, in part, that Muslim prisoners had other
means available to them of practicing their religion).
268. See supra Part II.B.iii.
269. Mayweathers v. Terhune, No. S-96-1582, slip op. at 9–11 (E.D. Cal. July 5, 2001),
available at http://www.pacer.psc.uscourts.gov (denying Muslims ability to attend
Jumu’ah services imposed a substantial burden on religious exercise); Fenelon v. Riddle,
No. S-95-954, slip op. 16–18 (E.D. Cal. Apr. 29, 2003), available at
http://www.pacer.psc.uscourts.gov; Marria v. Broaddus, No. 97 Civ.8297, 2003 WL
21782633 (S.D.N.Y. July 31, 2003) (ban on group assembly for worship for plaintiffs’
religion was substantial burden); Limbaugh v. Thompson, No. 93-D-1404-N, slip op. at 2–
3 (M.D. Ala. Sept. 29, 2003) (denial of sweat lodge for Native American prisoners was a
substantial burden); Farrow v. Stanley, No. Civ. 02-567-B, 2004 WL 224602, at *10 (D.
N.H. Feb. 5, 2004); Pounders v. Kempker, 79 Fed. Appx. 941, 943 (8th Cir. 2003);
Coronel v. Paul, 316 F. Supp. 2d 868, 876 (D. Ariz. 2004) (finding that it would be a
substantial burden if Dianic pagan prisoner was not allowed to attend worship service of
other pagan religions, but holding question of sincerity remained as to whether plaintiff
had a sincere religious motivation for desiring to attend services, or merely wanted to
attend extra services). See also Holiday v. Giusto, No. Civ. 03-01385-AS, 2004 WL
1792466, *7–8 (D. Or. Aug. 10, 2004) (Muslim prisoners who were denied ability to meet
in a group to pray stated a claim under RLUIPA sufficient to withstand defendants’ motion
for summary judgment); Cardew v. New York State Dep’t of Correctional Services, No.
01-Civ-3669, 2004 WL 943575, at *4 (S.D.N.Y. Apr. 30, 2004) (prisoner who was denied
ability to attend Jehovah’s Witness service unless he “pledged allegiance” to the faith
stated a claim under RLUIPA); Pugh v. Goord, 345 F.3d 121, 125–26 (2d Cir. 2003)
(remand to allow Shiite Muslim plaintiffs to amend complaint to add RLUIPA claim for
infringement on ability to practice religion caused by refusal to provide separate worship
services for Shiites and Sunni Muslims). But see Charles v. Verhagen, 220 F. Supp. 2d
937, 949 (W.D. Wis. 2002) (prison’s limitation of one religious feast a year for Muslim
inmate held to be enough under RLUIPA).

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his beliefs or foregoing group worship entirely.270 Of course, for
either type of group worship claim, the plaintiff still bears the burden
of producing evidence concerning his religious beliefs and how denial
of the particular group religious exercise sought impacts those
beliefs.271
Thus, RLUIPA claims challenging restrictions on group worship
have turned on (and are likely to continue to turn on) whether the
restrictions can withstand strict scrutiny. Claims of the first type,
where the prison already allows the particular service but does not
allow a particular prisoner to attend the service, are often unlikely to
satisfy strict scrutiny. That the prison already allows the particular
service or ceremony removes any argument for the prison that there is
something about the service itself that poses some danger to some
compelling interest. Instead, the prison must show that it has a
compelling interest in not allowing the particular prisoner to attend
the service. Where the prison’s refusal rests on interests in not
providing exemptions from prison work schedules and assignments,
courts addressing this issue thus far under RLUIPA have been
particularly unsympathetic to either finding that such interests are
compelling or that the least restrictive means have been used when
the prison allows exemptions from work assignments for other
reasons.272
Whether claims of the second type—i.e., where the prison refuses
to allow the particular religious service at all—satisfy strict scrutiny
depends on the nature of the religious service request and whether
means less restrictive than a complete ban on the religious service are
available to the prison. The more closely the requested religious

270. Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (“We have stated
that a substantial burden to free exercise rights may exist when a prisoner’s sole
opportunity for group worship arises under the guidance of someone whose beliefs are
significantly different from his own.”) (internal quotation marks and citation omitted).
271. See Greybuffalo v. Bertrand, No. 03-C-559-C, 2004 WL 2473250, at *5 (W.D.
Wis. Nov. 1, 2004) (defendants granted summary judgment on plaintiff’s claim that failure
to revive the Seven Fires Indian Council constituted a substantial burden because plaintiff
did not present “facts regarding his religious beliefs and why existence of the council is an
exercise of those beliefs.”).
272. Fenelon v. Riddle, No. S-95-954, slip op. 18–20 (E.D. Cal. Apr. 29, 2003),
available at http://www.pacer.psc.uscourts.gov (substantial burden on Muslim religious
exercise from threatening discipline for attending Jumu’ah service violated RLUIPA
because asserted interests of promoting work ethic and preventing mobility were not
compelling interests and fact that inmates were entitled to miss work assignments for nonreligious reasons demonstrated that disciplinary action for missing for religious reasons
was not the least restrictive means); Mayweathers v. Terhune, No. S-96-1582, slip op. at
9–11 (E.D. Cal. July 5, 2001), available at http://www.pacer.psc.uscourts.gov.

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service resembles a group religious service that the prison allows for
members of other religions or denominations, the more likely that
faithful application of the strict scrutiny test will lead to striking the
prison’s policy.273 One court followed this rationale after a trial on the
RLUIPA claim, holding that a ban on any group assembly that
applied uniquely to the plaintiff’s particular denomination (but
allowed similar group assembly of other denominations) failed strict
scrutiny.274 The Eighth Circuit recently reached a similar result in a
nearly identical case, holding that the prison would have to prove at
trial that there was some special threat posed by the particular
religious group assembling that could not be met by any means less
restrictive than a complete ban on group worship.275
In other cases, of course, the prohibited religious service or
ceremony may look quite different from other types of group
assembly the prison permits. For example, a request by Native
American religious adherents for a sweat lodge looks quite different
from a request by Methodist prisoners to gather in a room for Sunday
worship service. In these types of cases, the prison may invoke
compelling interests that validly distinguish the prohibited service
from those it permits—e.g., the Methodists are able to assemble in a
pre-existing prison room, but the sweat lodge requires special
construction and supervision that raise institutional security issues.
Here again, though, strict scrutiny requires that the prison’s interest be
proven, not just asserted, and that less restrictive alternatives be
explored. Accordingly, courts applying RLUIPA have thus far been
reluctant to conclude without resolution of factual issues that a
complete ban on these types of distinctive group assemblies is the
least restrictive means; instead, courts have ruled that it is necessary
to consider such issues as whether other prisons follow less restrictive
273. This is because “a law cannot be regarded as protecting an interest ‘of the highest
order’ . . . when it leaves appreciable damage to that supposedly vital interest
unprohibited.” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547
(1993) (internal citation omitted). Thus, the fact that a prison regularly allows prisoners in
some religions to assemble undermines the argument that there is some compelling interest
in not allowing prisoners of another religion to also assemble.
274. Marria v. Broaddus, No. 97 Civ. 8297, 2003 WL 21782633, at *14–18 (S.D.N.Y.
July 31, 2003). The court also rejected the argument that allowing this group to assemble
was inherently dangerous because some members of plaintiff’s religion advocated
violence. Such an argument, the court reasoned, could lead to bans on Christians, Jews, or
Muslims assembling for worship because some members of these religions have
sometimes advocated violence. The court also found that there was no showing that
members of the faith in question would use the opportunity of group worship and
fellowship to plan or engage in violence.
275. Murphy, 372 F.3d at 989.

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practices with regard to this religious ceremony and whether aspects
of the ceremony or its preparation can be modified in any way that do
not affect its religious nature but do reduce its impact on prison
security interests.276
In sum, the effect of RLUIPA on the success of prisoners
challenging policies limiting group worship opportunities as
compared to their success under Turner/O’Lone and RFRA277 is
striking. Plaintiffs have consistently prevailed in establishing that
prison restrictions on group worship are substantial burdens. In
addition, prisoners have either outright succeeded in defeating
attempts to show that prison restrictions have withstood strict
scrutiny, or raised disputed issues of fact requiring a trial as to
whether there are means less restrictive than an absolute ban on the
requested group worship opportunities.
C. Cases Challenging Limits on access to Religious Literature and
Devotional Items
A final common category of claims under RLUIPA has concerned
challenges to policies restricting prisoners’ access to religious
literature and items used for religious worship and devotion. Such
claims were commonly screened out under RFRA with courts finding
possession of the particular religious text or devotional item was not
central or mandated by the religion. As with the other categories of
claims, RLUIPA’s rejection of the compulsion and centrality tests has
led to an increased ability of prisoners to establish that complete
denials of access to sacred texts and items is a substantial burden.278
276. See e.g., Pounders v. Kempker, 79 Fed. Appx. 941, 943 (8th Cir. 2003) (issue of
whether prison’s basis for denying inmate’s requests for sweat lodge served compelling
interest and was least restrictive means of advancing that interest presented fact questions
that could not be resolved on motion to dismiss); Farrow v. Stanley, No. Civ. 02-567-B,
2004 WL 224602, *10 (D. N.H. Feb. 5, 2004) (“further development of the record on . . .
whether there are less restrictive alternatives to complete denial of access” to Native
American prisoner’s request for a sweat lodge was necessary, particularly in light of
argument that 30 other prisons allow sweat lodges). See also Limbaugh v. Thompson, No.
93-D-1404-N, slip op. at 2–3 (M.D. Ala. Sept. 29, 2003).
277. See, e.g., Weir v. Nix, 114 F.3d 817, 820–21 (8th Cir. 1997) (fundamentalist
separatist Christian prisoner was not entitled to religious advisor whose beliefs were
congruent with his own); Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) (failure to provide
Pentecostal Christian service did not substantially burden Pentecostal Christian plaintiff’s
free exercise rights).
278. See Charles v. Verhagen, 220 F. Supp. 2d 937, 948–49 (W.D. Wis. 2002) aff’d 348
F.3d 601 (7th Cir. 2003) (ban on Islamic prayer oil substantially burdened religious
exercise); Marria v. Broaddus, No. 97 Civ.8297, 2003 WL 21782633 (S.D.N.Y. July 31,
2003) (complete ban of prisoners’ religious Five Percenter literature substantially
burdened religious exercise); Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003)

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Nonetheless, courts have not opened the door so broadly that any
limit on items sought by prisoners amounts to a substantial burden.
Instead, courts have drawn sensible distinctions, recognizing that
some restrictions on access do not rise beyond the level of
inconvenience279 and that prisoners must provide some explanation of
how not having the particular piece of literature or item is a concrete
burden on religious exercise.280 In addition, given the past history of
some items that prisoners requested as part of their religious exercise,
sincerity is also likely to come into play in evaluating these types of
claims.281
For the claims in which the prisoner has established a substantial
burden, application of the strict scrutiny test has followed a familiar
pattern: courts have been more willing to uphold the prison’s policies
on access to religious texts or devotional items when the prison
imposes restrictions that stop short of a flat ban. For example, courts
have not accepted general arguments focusing on the need to limit
inmate property to advance such interests as security and prevention
(complete ban of prisoner’s Wotanist literature stated a substantial burden claim); Borzych
v. Frank, No. 04-C-632-C, 2004 WL 2359999, at *10 (W.D. Wis. Oct. 14, 2004)
(complete ban of prisoner’s Odinist literature that rendered prisoner “unable to attain his
religious goal of achieving ‘godhead’” stated a claim of substantial burden under
RLUIPA); Borzych v. Frank, No. 03-C-0575-C, 2004 WL 67642, at *2, 5 (W.D. Wis. Jan.
5, 2004) (complete ban of prisoner’s Odinist literature stated a substantial burden claim);
Leishman v. Holland, No. 01-CV-926 (D. Utah May 28, 2004) (complete ban of prisoner’s
Asatru religion runes substantially burdened religious exercise); Goodman v. Snyder, No.
00 C 0948, 2003 WL 715650, at *5 (N.D. Ill. Feb. 27, 2003) (complete ban of Wiccan’s
tarot cards substantially burdened religious exercise); Ulmann v. Anderson, No. Civ. 02405-JD, 2004 WL 883221, at *8 (D. N.H. Apr. 26, 2004) (prohibiting prisoner’s use of a
glass and candle menorah substantially burdened Jewish prisoner’s religious exercise);
Charles v. Frank, No. 04-1674, 2004 WL 1303403, at *2 (7th Cir. June 9, 2004)
(restrictions on prisoner’s wearing Muslim prayer beads substantially burdened religious
exercise).
279. See Dunlap v. Losey, 40 Fed. Appx. 41 (6th Cir. 2002) (inconvenience to prisoner
of confiscation of his hardcover Bible did not amount to substantial burden in light of
availability of a soft cover Bible); Charles v. Verhagen, No. 01-C-253-C, 2004 WL
420148, at *1 (W.D. Wis. Feb. 27, 2004) (although ban on Islamic prayer oil does
constitute a substantial burden, refusing to allow prisoner to specify his preferred brand of
prayer oil is not); Lindell v. Frank, No. 02-C-21-C, 2003 WL 23198509 (W.D. Wis. May
5, 2003) (no substantial burden in denying Wotanist blank paper sent to him in the mail
when the prison provided him with free sheets of paper each week that he could use for
religious exercise of writing religious poetry).
280. See Piscitello v. Berge, No. 02-C-0252-C, 2003 WL 23095741, at *5 (W.D. Wis.
Apr. 17, 2003) (“one sentence” statement in plaintiff’s brief arguing that prison violated
RLUIPA by denying him access to a biblical correspondence course study fails to meet
plaintiff’s evidentiary burden of showing “how the inability to take a biblical
correspondence course substantially burdens the exercise of his religious beliefs.”).
281. See Theriault v. Silber, 453 F. Supp. 254, 260 (W.D. Tex. 1978) (inmates claimed
their religion required Chateaubriand and Harveys Bristol Cream every other Friday);
Doty v. Lewis, 995 F. Supp. 1081, 1085 (D. Ariz. 1998) (prisoner claimed that his religion
required that he consume a fifth of whiskey every week).

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of illegal activity (e.g., gambling or gang violence) that do not focus
on how a ban on the particular religious item at issue is the least
restrictive means of advancing those interests.282 Similarly, while
willing to entertain a prison’s assertion that some religious literature
could be incendiary if widely disseminated in a prison, courts have
been appropriately skeptical of policies that claim it is necessary to
completely ban any access to the literature by the aggrieved prisoners
under all circumstances.283 The two RLUIPA cases that did uphold
prison restrictions on access to religious items suggest a prison may
meet strict scrutiny by either allowing the prisoner some limited
access to the devotional item284 or offering the prisoner his religious
item in circumstances or a form that poses less danger thanit would
have in the way he had requested it.285

282. See Charles v. Verhagen, 220 F. Supp. 2d 937, 948–49 (W.D. Wis. 2002), aff’d,
348 F.3d 601 (7th Cir. 2003) (ban on Islamic prayer oil not justified by general need to
limit the amount of property inmates can possess because “Defendants’ security concerns
[we]re not related to any specific difficulties presented by the possession of prayer oil”);
Leishman v. Holland, No. 01-CV-926 (D. Utah May 28, 2004) (complete ban on
possession of runes by Asatru prisoner fails strict scrutiny because restrictions could be
placed on plaintiff’s use of the runes so that they would not be diverted for gambling);
Goodman v. Snyder, 2003 WL 715650, at *5 (N.D. Ill. Feb. 27, 2003) (ban on tarot cards
fails strict scrutiny where cards that do not contain possible gang symbols may be
available). Cf. Neal v. Lucas, 75 Fed. Appx. 960 (5th Cir. 2003) (reversing dismissal of
RLUIPA claim arising out of prison denying inmate access to religious publications and
remanding for further proceedings); Aiello v. Frank, 2003 WL 23277415, at *1 (W.D.
Wis. June 3, 2003) (granting Jewish plaintiff leave to amend his complaint to add a
RLUIPA claim for enforcing a policy against him of “forbidding inmates in segregation
from having a Tallith, yarmulke and Siddurim.”).
283. See Marria v. Broaddus, 2003 WL 21782633, at *15 (S.D.N.Y. July 31, 2003)
(prisoners prevailed in challenge to prison’s complete ban on their Five Percenter religious
literature where banned literature was “facially innocuous” and where the religion’s “lawabiding existence outside prison for the better part of 40 years” foreclosed a finding that
their religion was a security threat group); Borzych v. Frank, 2004 WL 67642, at *2 (W.D.
Wis. Jan. 5, 2004) (prisoner stated claim under RLUIPA where prison banned prisoner’s
Odinist religious texts based on general concerns that they advocated racism, ethic
supremacy, hatred or violence). Cf. Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir.
2003) (remanding to trial court because prison’s complete ban on prisoner’s Wotanist
literature stated claim under RLUIPA).
284. See Charles v. Frank, 2004 WL 1303403, at *2 (7th Cir. 2004) (upholding prison’s
refusal to allow prisoner to openly wear religious prayer beads in common areas of prison
based on interest in suppressing potential gang symbols where the prison did allow the
prisoner to wear the beads under his shirt in common areas of the prison and openly in his
cell as a less restrictive alternative).
285. Ulmann v. Anderson, 2004 WL 883221, at *8 (D. N.H. Apr. 26, 2004) (upholding
prison’s refusal to allow plaintiff use of his preferred menorah composed of glass and
candles (whose materials could be converted into weapons) where prison proposed
alternative of a rabbi lighting an electric menorah).

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D. General Observations On the Record of Merits Claims Under
RLUIPA In Its First Four Years
Based on how prisoner RLUIPA claims have fared in the four
categories discussed above, it is possible to make some more general
observations. First, prisoners are generally having more success than
they did under RFRA in establishing a substantial burden on religious
exercise. Whereas over seventy-five percent286 of prisoner RFRA
claims were dismissed for failing to establish substantial burdens in
the three and one half years before Boerne ruled RFRA
unconstitutional as applied to the states, only seven287 of the forty-six
prisoner RLUIPA claims discussed previously have been dismissed
for failing to establish a substantial burden. Given that an
overwhelming number of RFRA claims were dismissed because the
prisoner could not establish that the particular religious practice at
issue was either mandated or central to his faith,288 the increased
success of prisoners in establishing substantial burdens under
RLUIPA can be attributed to the Act’s removal of these requirements
from its definition of protected religious exercise.
Second, because more prisoners are succeeding in establishing a
substantial burden, it appears that most RLUIPA claims will be
resolved by evaluating whether the prison has demonstrated that the
286. Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575, 607–17
(1998).
287. Dunlap v. Losey, 40 Fed. Appx. 41 (6th Cir. 2002) (inconvenience to prisoner of
confiscation of his hardcover Bible did not amount to substantial burden in light of
availability of a soft cover Bible); Lindell v. Frank, 2003 WL 23198509, at *61 (W.D.
Wis. May 5, 2003) (no substantial burden in denying Wotanist blank paper sent to him in
the mail when the prison provided him with free sheets of paper each week that he could
use for religious exercise of writing religious poetry); Piscitello v. Berge, 2003 WL
23095741, at *5 (W.D. Wis. Apr. 17, 2003) (“one sentence” statement in plaintiff’s brief
arguing that prison violated RLUIPA by denying him access to a biblical correspondence
course study fails to meet plaintiff’s evidentiary burden of showing “how the inability to
take a biblical correspondence course substantially burdens the exercise of his religious
beliefs”). Steele v. Guilfoyle, 76 P.3d 99, 102 (Okla. Civ. App. 2003) (requiring Muslim
to share prison cell with non-Muslim does not pose a substantial burden on religious
exercise); Rogers v. Hellenbrand, 2004 WL 433976, at *6 (W.D. Wis. Mar. 4, 2004) (no
substantial burden by prisoner merely being exposed to religious views that were not his
own at a prison holiday party); Washington v. County of Santa Barbara, 2004 WL
1926131, at *3 (Cal. App. Aug. 31, 2004) (recognizing potential for substantial burden if
prisoner had been denied a religious diet, but finding no burden in this case because
substitute meal that complied with prisoner’s dietary restrictions was made available in
circumstances where prisoner was offered food forbidden by his religion); Ulmann v.
Anderson, 2004 WL 883221, at *7 (D. N.H. Apr. 26, 2004) (recognizing potential
substantial burden from failing to provide kosher diet but holding there was no RLUIPA
violation under the circumstances where plaintiff was incarcerated for a year and only
requested a kosher diet during his last 12 days of incarceration).
288. See supra pp. 522, 531.

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burden is the least restrictive means of achieving a compelling
government interest. Accordingly, how successful prisoner claims are
under RLUIPA will ultimately turn on whether courts are willing to
faithfully apply the strict scrutiny standard that the Act’s language
requires or if they instead choose to follow the approach that many
courts took under RFRA289 of applying a watered-down version of
strict scrutiny that gave greater deference to the government than is
typically given under strict scrutiny.290 Thus far, courts have generally
been skeptical of prison claims that policies that completely forbid the
particular religious activity at issue or impose a flat ban on access to a
devotional item or religious literature are the least restrictive means of
advancing a compelling government interest. Conversely, courts
appear more likely to uphold prison policies that do not impose such a
flat prohibition but instead provide at least some avenues for the
prisoner’s desired religious expression.291
Finally, based on the number of RLUIPA prisoner claims in the
first four years of the Act’s existence, it appears that the assertions of
a flood of claims predicted by the Act’s critics has simply not
materialized. My research has uncovered 60 discrete prisoner
RLUIPA cases that have had either some decision on the merits of the
claim or a ruling on the constitutionality of the Act.292 Sixty cases in
289. See supra p. 553.
290. A few courts, as discussed supra, have failed to follow the Act’s plain text and
have instead applied a watered down version of strict scrutiny in order to reach their result
of ruling in favor of the prison. See, e.g., Ickstadt v. Dretke, No. H-02 1064 (S.D. Tex.
Apr. 2, 2004) (rejecting challenge by Orthodox Jewish prisoners to policy forbidding
religiously motivated quarter-inch beards even though such beards were allowed for
medical reasons without harm to prisoner’s asserted safety concerns); Limbaugh v.
Thompson, No. 93-D-1404-N, slip op. at 2 (M.D. Ala. Sept. 29, 2003) (Native American
religious adherents’ challenge to hair length regulations failed under modification of strict
scrutiny test which did not require a showing of least restrictive means but merely required
defendants to “articulate[] legitimate reasons based on compelling interest in prison safety
and security.”).
291. See, e.g., Charles v. Frank, 2004 WL 1303403, at *2 (7th Cir. June 9, 2004)
(upholding prison’s refusal, based on interest in suppressing potential gang symbols, to
allow prisoner to openly wear religious prayer beads in common areas of prison where the
prison did allow, as a less restrictive alternative, the prisoner to wear the beads under his
shirt in common areas of the prison and openly in his cell).
292. See Greybuffalo v. Bertrand, No. 03-C-559-C, 2004 WL 2473250, at *5 (W.D.
Wis. Nov. 1, 2004); Collins-Bey v. Thomas, 2004 WL 2381874, at *2 (N.D. Ill. Oct. 25,
2004); Toles v. Young, No. 7:00-CV-210, 2002 WL 32591568, at *9 (W.D. Va. Mar. 6,
2002); Borzych v. Frank, No. 04-C-632, 2004 WL 2359999, at *10 (W.D. Wis. Oct. 14,
2004); Glick v. Norris, No. 5:03CV00160 (E.D. Ark. Aug. 11, 2004); Holiday v. Giusto,
2004 WL 1792466 (D. Or. Aug. 10, 2004); Hamilton v. Va. Dep’t of Corr., No.
3:04CV262 (E.D. Va.); In re Change of Name of Terrence James Shaw, 2004 WL
2359994 (Wis. App. Oct. 21 2004); Williams v. Bitner, 285 F. Supp. 2d 593 (M.D. Pa.
2003); Gordon v. Pepe, No. Civ. A 00-10453, 2004 WL 1895134 (D. Mass. Aug. 24,
2004); Agrawal v. Briley, 2004 WL 1977581 (N.D. Ill. Aug. 25, 2004); Madison v. Riter,

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four years is hardly a flood. Indeed, by contrast, Professor Lupu’s
study revealed 94 reported RFRA prisoner cases with decisions on the
merits in the first three-and-a-half years of RFRA’s existence prior to
Boerne.293 Thus, contrary to the dire warnings of its critics, RLUIPA
has actually resulted in fewer prisoner cases than RFRA. Moreover,
240 F.Supp.2d 566 (W.D. Va. 2003), overruled in part by Madison v. Riter, 355 F.3d 310
(4th Cir. 2003); Goodman v. Snyder, 2003 WL 715650, at *5 (N.D. Ill. Feb. 27, 2003)
Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003); Thompson v. Vilsack, 328 F.
Supp. 2d 974, 980 (S.D. Iowa 2004); Love v Evans, No. 2:00-CV-0091 (E.D. Ark. Nov.
20, 2001), available at http://www.pacer.psc.uscourts.gov; Cotton v. Fla. Dep’t of Corr.,
No. 02-22760 (S.D. Fla. Oct. 2003) (settlement agreement and denial of motion to dismiss
available at http://www.rluipa.com/cases/CottonSettlement.pdf); Cooper v. California, No.
C02-3712
(E.D.
Cal.)
(notice
of
settlement
agreement
available
at
http://www.pacer.psc.uscourts.gov); Mayweathers v. Terhune, 328 F. Supp. 2d 1086 (E.D.
Cal. 2004) (ruling in favor of Muslim prisoners who desired to wear beards); Hoevenaar v.
Lazaroff, 276 F. Supp. 2d 811, 817 (S.D. Ohio 2003), overruled 2004 WL 1664043 (6th
Cir. July 23, 2004); Boles v. Neet, 333 F. Supp. 2d 1005 (D. Colo. Aug. 20, 2004);
Thompson v. Scott, 86 Fed. Appx. 17, 19 (5th Cir. 2004); Taylor v. Cockrell, No. H-002809 (S.D. Tex. Sept. 25, 2002); Young v. Goord, 67 Fed. Appx. 638, 640 n.1 (2d Cir.
2003); People v. Peterson, 2002 WL 31387540, at *4 (N.Y. Sup. Sept. 5, 2002); Wyatt v.
Terhune, 315 F.3d 1108 (9th Cir. 2003) (remanding case to district court to allow
Rastafarian inmate to amend his complaint to plead a RLUIPA claim challenging hair
length regulations); Mayweathers v. Terhune, No. S-96-1582, slip op. at 9–11 (E.D. Cal.
July 5, 2001), available at http://www.pacer.psc.uscourts.gov; Fenelon v. Riddle, No. S95-954, slip op. 16–18 (E.D. Cal. Apr. 29, 2003), available at
http://www.pacer.psc.uscourts.gov; Marria v. Broaddus, 2003 WL 21782633 (S.D.N.Y.
July 31, 2003); Farrow v. Stanley, 2004 WL 224602, at *10 (D. N.H. Feb. 5, 2004);
Farrow v. Stanley, 2004 WL 224602, at *10 (D. N.H. Feb. 5, 2004); Pounders v. Kempker,
79 Fed. Appx. 941, 943 (8th Cir. 2003); Coronel v. Paul, 316 F. Supp. 2d 868, 876 (D.
Ariz. 2004); Cardew v. New York State Dep’t of Corr. Services, No. 01-Civ-3669, 2004
WL 943575, at *4 (S.D.N.Y. Apr. 30, 2004); Pugh v. Goord, 345 F.3d 121, 125–26 (2d
Cir. 2003); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004); Charles v.
Verhagen, 220 F. Supp. 2d 937, 948-49 (W.D. Wis. 2002), aff’d, 348 F.3d 601 (7th Cir.
2003) (ban on Islamic prayer oil substantially burdened religious exercise); Leishman v.
Holland, No. 01-CV-926 (May 28, 2004 D. Utah); Goodman v. Snyder, 2003 WL 715650,
at *5 (N.D. Ill. Feb. 27, 2003); Neal v. Lucas, 75 Fed. Appx. 960 (5th Cir. 2003); Aiello v.
Frank, 2003 WL 23277415, at *1 (W.D. Wis. June 3, 2003); Marria v. Broaddus, 2003
WL 21782633, at *15 (S.D.N.Y. July 31, 2003); Borzych v. Frank, 2004 WL 67642, at *2
(W.D. Wis. Jan. 5, 2004); Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003);
Steele v. Guilfoyle, 76 P.3d 99, 102 (Okla. Civ. App. 2003); Rogers v. Hellenbrand, 2004
WL 433976, at *6 (W.D. Wis. Mar. 4, 2004); Washington v. County of Santa Barbara,
2004 WL 1926131, *3 (Cal.App. Aug. 31, 2004); Ickstadt v. Dretke, No. H-02 1064 (S.D.
Tex. Apr. 2, 2004); Limbaugh v. Thompson, No. 93-D-1404-N, slip op. at 2 (M.D. Ala.
Sept. 29, 2003); Charles v. Verhagen, 220 F. Supp. 2d 937, 949 (W.D. Wis. 2002)
(prison’s limitation of one religious feast a year for Muslim inmate held to be enough
under RLUIPA); Ulmann v. Anderson, 2004 WL 883221, *7 (D. N.H. Apr. 26, 2004);
Lindell v. Frank, 2003 WL 23198509, at *61 (W.D. Wis. May 5, 2003); Piscitello v.
Berge, 2003 WL 23095741, *5 (W.D. Wis. Apr. 17, 2003); Ahmad v. Furlong, No. 01-F1164 (D. Colo. Aug. 5, 2004); Jones v. Toney, No. 5:02CV00415 (E.D. Ark. Mar. 29,
2004); Benning v. Georgia, No. 602-CV-139 (S.D. Ga. Jan. 8, 2004); ; Al Ghashiyah v.
Wis. Dep’t of Corr., 250 F.Supp.2d 1016 (E.D. Wis. 2003), overruled by Charles v.
Verhagen, 348 F.3d 601 (7th Cir. 2003); Johnson v. Martin, 223 F.Supp.2d 820 (W.D.
Mich. 2002) (same); Gerhardt v. Lazaroff, 221 F.Supp.2d 827 (S.D. Ohio 2002) (same),
overruled sub nom. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).
293. See generally C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575
(1998).

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since almost all of the plaintiffs who have pursued RLUIPA claims
have also pleaded a Free Exercise claim in their complaint, RLUIPA
is not adding to the volume of prisoner cases since prisoners were free
to bring Free Exercise claims even before RLUIPA.
V. RLUIPA IS A CONSTITUTIONAL EXERCISE OF CONGRESSIONAL
POWER
One of the main areas of litigation under the statute thus far has
focused on its constitutionality. The Fourth,294 Seventh,295 and Ninth
Circuits,296 as well as at least twelve district courts,297 have rejected
all constitutional challenges to RLUIPA’s prisoner provisions. The
Sixth Circuit298 created a circuit split by accepting the argument of
two overruled district court decisions that RLUIPA violates the
Establishment Clause. Because of the Circuit split, the Supreme Court
recently agreed to decide this term the question of whether RLUIPA
is a violation of the Establishment Clause.
The states that have challenged RLUIPA’s constitutionality have
raised six major issues: (1) whether RLUIPA violates the
Establishment Clause; (2) whether RLUIPA is a constitutional
exercise of Congress’s Spending Clause power; (3) whether RLUIPA

294. See Madison v. Riter, 355 F.3d 310 (4th Cir. 2003) (rejecting Establishment
Clause challenge to RLUIPA § 3).
295. See Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) (rejecting Establishment
Clause, Spending Clause, and Tenth Amendment challenges to RLUIPA § 3).
296. See Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (same), cert. denied
sub nom. Alameida v. Mayweathers, 540 U.S. 815 (2003) (rejecting Establishment Clause,
Spending Clause, Tenth Amendment, Eleventh Amendment, and Separation of Power
challenges to RLUIPA § 3).
297. See Glick v. Norris, No. 5:03CV00160 (E.D. Ark. Aug. 11, 2004); Ahmad v.
Furlong, No. 01-F-1164 (D. Colo. Aug. 5, 2004) (rejecting constitutional challenges to
RLUIPA § 3) (on file with the author); Ickstadt v. Dretke, No. H-02 1064 (S.D. Tex. Apr.
2, 2004), Jones v. Toney, No. 5:02CV00415 (E.D. Ark. Mar. 29, 2004) (same); Benning v.
Georgia, No. 602-CV-139 (S.D. Ga. Jan. 8, 2004); Williams v. Bitner, 285 F.Supp.2d. 593
(M.D. Pa. 2003); Sanabria v. Brown, No. 99-4699 (D. N.J. June 5, 2003) (same); Gordon
v. Pepe, No. 00-10453, 2003 WL 1571712 (D. Mass. Mar. 6, 2003) (same); Johnson v.
Martin, 223 F. Supp.2d 820 (W.D. Mich. 2002) (same), overruled by Cutter v. Wilkinson,
349 F.3d 257 (6th Cir. 2003); Gerhardt v. Lazaroff, 221 F. Supp. 2d 827 (S.D. Ohio 2002)
(same), overruled by Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003); Taylor v. Cockrell,
No. H-00-2809 (S.D. Tex., Sept. 25, 2002) (rejecting constitutional challenge to RLUIPA
Section 3), vacated on other grounds, Taylor v. Groom, No. 02-21316 (5th Cir. Aug. 26,
2003); Love v. Evans, No. 2:00-CV-91 (E.D. Ark., Aug. 8, 2001) (same); Mayweathers v.
Terhune, 2001 WL 804140, at *6 (E.D. Cal. 2001) (same).
298. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003) (holding RLUPA § 3 violates the
Establishment Clause, relying on Al Ghashiyah v. Wis. Dep’t of Corr., 250 F.Supp.2d
1016 (E.D. Wis. 2003), overruled by Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003),
and Madison v. Riter, 240 F.Supp.2d 566 (W.D. Va. 2003), overruled by Madison v. Riter,
355 F.3d 310 (4th Cir. 2003)).

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is a constitutional exercise of Congress’s Commerce Clause; (4)
whether RLUIPA violates the Tenth Amendment; (5) whether
RLUIPA violates the Eleventh Amendment and (6) whether RLUIPA
violates Separation of Power principles. Each of these arguments is
assessed below, beginning with the question before the Supreme
Court now of whether RLUIPA offends the Establishment Clause.
A. RLUIPA Section 3 Does Not Violate the Establishment Clause.
The only credible argument that RLUIPA is unconstitutional is that
legislative accommodations of religious exercise (like RLUIPA) are
forbidden by the Establishment Clause if they accommodate religious
exercise without also providing benefits for other rights. This
argument, however, is premised on an extreme view of the
Establishment Clause held by only one sitting Justice of the Supreme
Court.299 Moreover, this argument has been rejected in every single
case in which it was raised against RFRA, RLUIPA’s broader
predecessor, both before and after RFRA as applied to the states was
struck down on other grounds.300 All but one court has rejected the
argument in cases challenging the constitutionality of RLUIPA
Section 3.301 Likewise, every court to address the issue has rejected an
299. See City of Boerne v. Flores, 521 U.S. 507, 536–37 (1997) (Stevens, J.,
concurring); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 n.20(11th Cir.
2004) (describing rejection of Justice Stevens’ Establishment Clause view by the majority
of Justices in Boerne).
300. See, e.g., In re Young, 141 F.3d 854, 863 (8th Cir. 1998) (“RFRA fulfills each of
the elements presented in the Lemon test, and we conclude that Congress did not violate
the Establishment Clause in enacting RFRA.”); Mockaitis v. Harcleroad, 104 F.3d 1522,
1530 (9th Cir.), vacated on other grounds, 521 U.S. 507, 117 S.Ct. 2157 (1997); Sasnett v.
Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996) (same) vacated on other grounds, 521 U.S.
1114, 117 S.Ct. 2502 (1997); E.E.O.C. v. Catholic Univ. of America, 83 F.3d 455, 470
(D.C. Cir. 1996) (same); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996)
(same), rev’d on other grounds, 521 U.S. 507, 117 S.Ct. 2157 (1997); Jama v. United
States Immigration and Naturalization Service, WL 2538275, at *25 (D. N.J. Nov. 10,
2004) (same).
301. See Madison v. Riter, 355 F.3d 310 (4th Cir. 2003) (rejecting Establishment Clause
challenge to RLUIPA Section 3); Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003)
(same); Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (same), cert. denied sub
nom. Alameida v. Mayweathers, 124 S.Ct. 66 (2003) (same); Benning v. Georgia, No.
602-CV-139 (S.D. Ga. Jan. 8, 2004); Williams v. Bitner, 285 F. Supp. 2d. 593 (M.D. Pa.
2003) (same); Jones v. Toney, No. 5:02CV00415 (E.D. Ark. Mar. 29, 2004) (same);
Sanabria v. Brown, No. 99-4699 (D. N.J. June 5, 2003) (same); Gordon v. Pepe, No. 0010453, 2003 WL 1571712 (D. Mass. Mar. 6, 2003) (same); Johnson v. Martin, 223
F.Supp.2d 820 (W.D. Mich. 2002) (same), overruled by Cutter v. Wilkinson, 349 F.3d 257
(6th Cir. 2003); Gerhardt v. Lazaroff, 221 F. Supp. 2d 827 (S.D. Ohio 2002) (same),
overruled by Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003); Love v. Evans, No. 2:00CV-91 (E.D. Ark., Aug. 8, 2001) (same); Mayweathers v. Terhune, 2001 WL 804140, at
*6 (E.D. Cal. 2001) (same). But see Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003)
(holding RLUPA § 3 violates the Establishment Clause, relying on Al Ghashiyah v. Wis.

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Establishment Clause challenge to the analogous land-use provisions
of RLUIPA Section 2.302
Courts so consistently uphold RLUIPA and similar laws because
they satisfy all three requirements of the Lemon test: (1) RLUIPA has
a secular purpose, to minimize government interference with religious
exercise; (2) it does not have the primary effect of advancing religion
because alleviating substantial burdens on religious exercise—even
exclusively, as religious accommodation laws do—does not involve
the government itself advancing religion; and (3) the statute does not
excessively entangle government with religion because its purpose
and effect are exactly the opposite—to diminish government
interference with religious exercise.303 In other words, RLUIPA does
not entail “sponsorship, financial support, and active involvement of
the sovereign in religious activity,”304 but instead “follows the best of
our traditions” by relieving substantial regulatory burdens on religious
exercise.305

Dep’t of Corr., 250 F.Supp.2d 1016 (E.D. Wis. 2003), overruled by Charles v. Verhagen,
348 F.3d 601 (7th Cir. 2003), and Madison v. Riter, 240 F. Supp. 2d 566 (W.D. Va. 2003),
overruled by Madison v. Riter, 355 F.3d 310 (4th Cir. 2003)).
302. For other rejections of Establishment Clause challenges to RLUIPA Section 2, see
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) (rejecting
Establishment Clause challenge to RLUIPA Section 2); Congregation Kol Ami v.
Abingdon Township, No. 01-1919, 2004 WL 1837037 (E.D. Pa. Aug. 17, 2004); Williams
Island Synagogue, Inc. v. City of Aventura, No. 04-20257-CV, 2004 WL 1059798 (S.D.
Fla. May 06, 2004); Castle Hills First Baptist Church v. City of Castle Hills, No. SA-01CA-1149, 2004 WL 546792 (W.D. Tex., Mar. 17, 2004); United States v. Maui County,
298 F. Supp. 2d 1010 (D. Haw. 2003); Murphy v. New Milford, 289 F. Supp. 2d 87 (D.
Conn. 2003); Westchester Day Sch. v. Mamaroneck, 280 F. Supp. 2d 230 (S.D.N.Y.
2003); Guru Nanak Sikh Society v. County of Sutter, No. S-02-1785 (E.D. Cal. Nov. 19,
2003); Life Teen, Inc. v. Yavapai County, No. Civ. 01-1490-PCT (D. Ariz. Mar. 26,
2003); Christ Universal Mission Church v. Chicago, No. 01-C-1429, 2002 U.S. Dist.
LEXIS 22917 (N.D. Ill. Sept. 11, 2002), vacated on other grounds 2004 WL 595392 (7th
Cir. Mar. 26, 2004); Freedom Baptist Church v. Middletown, 204 F. Supp. 2d 857 (E.D.
Pa. 2002). See also Cottonwood Christian Ctr. v. Cypress, 218 F. Supp. 2d 1203, 1221 n.7
(C.D. Cal. 2002) (noting that “RLUIPA would appear to have avoided the flaws of its
predecessor RFRA, and be within Congress’s constitutional authority”). Cf. Ehlers-Renzi
v. Connelly School of the Holy Child, 224 F.3d 283, 291 (4th Cir. 2000) (upholding
county zoning ordinance exempting from special exception requirement parochial schools
located on land owned by religious organization); Boyajian v. Gatzunis, 212 F.3d 1 (1st
Cir. 2000) (upholding state law and town by-law prohibiting municipal authorities from
excluding religious uses of property from any zoning area); Cohen v. Des Plaines, 8 F.3d
484 (7th Cir. 1993) (upholding zoning ordinance that allowed churches to operate day-care
centers in single-family residential districts, while requiring other operators of day-care
centers to obtain special use permits).
303. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).
304. Walz v. Tax Comm’n, 397 U.S. 664, 668.
305. Zorach v. Clauson, 343 U.S. 306, 314 (1952).

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1. RLUIPA Has a Secular Purpose
First, RLUIPA was passed for the secular government purpose of
“protect[ing] the free exercise of religion from unnecessary
government interference.”306 As the Supreme Court made clear in
Corporation of Presiding Bishop v. Amos, it is a “proper purpose [to]
lift[] a regulation that burdens the exercise of religion.”307Indeed, it
has been a consistent refrain of the Court’s Establishment Clause
jurisprudence that it is a permissible government purpose to limit
government interference with the exercise of religion.308
These cases simply emphasize the Supreme Court’s admonition
that the requirement of a secular purpose “does not mean that the
law’s purpose must be unrelated to religion—that would amount to a
requirement that the government show a callous indifference to
religious groups, and the Establishment Clause has never been so
interpreted.”309Thus, “the government may (and sometimes must)
accommodate religious practice and . . . it may do so without
violating the Establishment Clause.”310 As Justice Douglas famously
stated, statutes that accommodate religious exercise “follow[] the best
of our traditions. For [the government] then respects the religious
nature of our people and accommodates the public service to their
spiritual needs.”311
Indeed, legislation like RLUIPA that has the permissible purpose of
lifting burdens on religious exercise is all the more common—and
necessary—since the Supreme Court’s decision in Smith made clear
that people of faith should turn in the first instance to the legislative
and executive branches, rather than the courts, for the protection of
religious liberty:
306. 146 CONG. REC. E1234, E1235 (daily ed. July 14, 2000) (statement of Rep.
Canady); Madison, 355 F.3d at 317; Mayweathers v. Newland, 314 F.3d 1062, 1068 (9th
Cir. 2002).
307. 483 U.S. 327, 338 (1987) (emphasis added); id. at 339 (identifying the
“permissible purpose of limiting governmental interference with the exercise of religion”).
308. See, e.g., Gillette v. United States, 401 U.S. 437 (1971) (holding that exemption
from military draft that lifts burden imposed on religious exercise of conscientious
objectors does not violate the Establishment Clause); Walz, 397 U.S. at 680 (excepting
religious organizations from neutral property tax laws does not violate Establishment
Clause); Zorach, 343 U.S. at 314 (1952) (excepting religious students from mandatory
public school attendance during certain hours of the day to obtain religious instruction
does not violate Establishment Clause); Larkin v. Grendel’s Den, 459 U.S. 116, 123–24
(1982) (finding secular purpose in regulating liquor sales in manner to protect disruption
of church activities).
309. Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987).
310. Id. at 334.
311. Zorach v. Clauson, 343 U.S. 306, 314 (1952).

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Values that are protected against government interference through
enshrinement in the Bill of Rights are not thereby banished from
the political process. Just as a society that believes in the negative
protection accorded to the press by the First Amendment is likely
to enact laws that affirmatively foster the dissemination of the
printed word, so also a society that believes in the negative
protection accorded to religious belief can be expected to be
solicitous of that value in its legislation as well.312

Thus, for example, while Smith rejected the claim that the Free
Exercise Clause mandated an exemption to drug laws, the Court noted
with approval that accommodations of peyote use for religious use
(and only religious use) have been made by legislation.313Such
accommodations are constitutional, even though others wishing to use
peyote for secular reasons are not offered the exemption.314
Accordingly, RLUIPA Section 3’s purpose of alleviating
government burdens on prisoners’ religious exercise is a permissible
secular purpose.315 Moreover, as the Supreme Court emphasized in
Board of Education v. Mergens, courts should “not lightly secondguess such legislative judgments” when reviewing the policy reasons
for an accommodation.316 Moreover, government action has failed the
“secular purpose” test only when “there was no question that the
statute or activity was motivated wholly by religious
considerations.”317
In addition, there is at least one other secular purpose for
RLUIPA’s alleviating burdens on religion in the prison context: the
promotion of rehabilitation.318 The permissible purpose of promoting
312. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (emphasis added).
313. Id. (noting that “[] a number of States have made an exception to their drug laws
for sacramental peyote use.”).
314. See Lee v. Weisman, 505 U.S. 577, 628–29, 112 S.Ct 2649, 2677 (1992) (Souter,
J., concurring) (“[I]n freeing the Native American Church from federal laws forbidding
peyote use, see . . . 21 C.F.R. § 1307.31 (1991), the government conveys no endorsement
of peyote rituals, the Church, or religion as such; it simply respects the centrality of peyote
to the lives of certain Americans.”); Peyote Way Church v. Thornburgh, 922 F.2d 1210
(5th Cir. 1991) (exemptions from peyote laws for religious use do not violate
Establishment Clause).
315. See, e.g., Madison, 355 F.3d at 310 (Section 3 has secular purpose of alleviating
burdens on religious exercise); Charlesv. Verhagen, 348 F.3d 601, 610 (7th Cir. 2003)
(same); Mayweathers, 314 F.3d at 1068 (same). See also Midrash, 2004 WL 842527, at
*23 (finding purpose of RLUIPA § 2(b)(1) was “to alleviate significant government
interference with the exercise of religion,” and that this “purpose does not violate the
Establishment Clause.”).
316. 496 U.S. 226, 251 (1990).
317. Lynch v. Donnelly, 465 U.S. 668, 680 (emphasis added).
318. See Charles, 348 F.3d at 607 (identifying rehabilitation of prisoners as one of
RLUIPA’s purposes).

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rehabilitation was also a primary reason for extending the protection
of RFRA to prisoners.319
In sum, there is little question that RLUIPA’s two secular
purposes—lifting burdens on religious exercise and promoting
rehabilitation—satisfy the secular purpose prong.
2. RLUIPA Does Not Have the Primary Effect of Advancing Religion.
a. RLUIPA does not cause the government to advance religious
exercise itself, but rather to avoid interference with private religious
actors as they advance religious exercise.
RLUIPA satisfies the second Lemon factor, because alleviating
burdens on religious exercise does not have the principal or primary
effect of advancing religion. RLUIPA merely reduces intrusion and
oversight by the government into how religious individuals carry out
their missions. While this may better enable those individuals to
advance their religious purposes, the Supreme Court has held this to
be a permissible effect:
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. As the Court observed in Walz, “for the men who
wrote the Religion Clauses of the First Amendment the
‘establishment’ of a religion connoted sponsorship, financial
support, and active involvement of the sovereign in religious
activity.”320

Here, like the Title VII exemption approved in Amos, RLUIPA
does not involve the government itself advancing religion. Instead,
RLUIPA simply permits prisoners some latitude to practice and
319. See Kikumura v. Hurley, 242 F.3d 950, 961 (10th Cir. 2001) (discussing how
RFRA’s lifting of substantial burdens on the religious exercise of federal prisoners relates
to permissible Congressional purpose of rehabilitating prisoners). See also 139 Cong. Rec.
S14,465 (daily ed. Oct. 27, 1993) (statement of Sen. Hatch) (“[E]xposure to religion is the
best hope we have for rehabilitation of a prisoner. . . . We should accommodate efforts to
bring religion to prisoners.”); id. at S14,466 (statement of Sen. Dole) (“[I]f religion can
help just a handful of prison inmates get back on track, then the inconvenience of
accommodating their religious beliefs is a very small price to pay.”); id. (statement of Sen.
Hatfield) (“Mr. Colson’s prison ministries group, which has successfully rehabilitated
many prisoners, has been denied access to prisoners in Maryland . . . who did not identify
themselves as [P]rotestants . . . . [This is an] example[ ] of the need for us to pass this bill
without this amendment [which would exclude prisons from RFRA].”).
320. Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 337 (1987) (emphasis in
original) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 668, (1970)).

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define their own religious exercise by limiting government
interference. Put another way, RLUIPA’s lifting of any noncompelling, state-imposed regulations that substantially burden
religious exercise is an example of “benevolent neutrality” that
“permit[s] religious exercise to exist without sponsorship and without
[government] interference.”321 By passing RLUIPA, “Congress has
simply lifted government burdens on religious exercise and thereby
facilitated free exercise of religion for those who wish to practice
their faiths.”322
It also bears mentioning that, contrary to the suggestion of the Sixth
Circuit in Cutter,323 Amos cannot be distinguished on the grounds that
the Title VII accommodation at issue was somehow required by the
Religion Clauses whereas RLUIPA was not. With regard to the Free
Exercise Clause, the Court in Amos expressly declined to rest its
decision on the ground that Title VII’s applicability to religious
groups, prior to the enactment in 1972 of the legislative
accommodation for religious organizations challenged in Amos,
violated the Free Exercise Clause so that the 1972 amendment was
constitutionally mandated. As the Court stated, “[w]e may assume for
the sake of argument that the pre-1972 exemption was adequate in the
sense that the Free Exercise Clause required no more.”324 Moreover,
the Court took pains to point out that “[i]t is well established . . . that
the limits of permissible state accommodation to religion are by no
means co-extensive with noninterference mandated by the Free
Exercise Clause.”325
The argument that the accommodation in Amos was required in
order to avoid an Establishment Clause violation is equally infirm.
None of the opinions of the Justices in Amos make (or even suggest)
such a holding, and courts have held that the government is not
generally prohibited from regulating the hiring decisions of religious
organizations.326 If the Establishment Clause permits the government
to interfere with a religious organization’s hiring of at least some

321. Amos, 483 U.S. at 334.
322. Madison v. Riter, 355 F.3d 310, 318 (4th Cir. 2003).
323. See Cutter v. Wilkinson, 349 F.3d 257, 263 (6th Cir. 2003) (suggesting that the
accommodation in Amos was necessary to avoid violating First Amendment).
324. Amos, 483 U.S. at 336.
325. Id. at 334.
326. See, e.g., E.E.O.C. v. Roman Catholic Diocese, 213 F.3d 795 (4th Cir. 2000)
(holding that the “ministerial exception” doctrine does not completely exempt hiring
decisions of all employees (e.g., building custodians) of a religious organization from antidiscrimination laws).

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employees, then the exemption approved in Amos—which involved
the Title VII exemption’s application to all employees of a religious
organization—could not have been required by the Establishment
Clause.
b. None of the rationales suggested by the Sixth Circuit and
RLUIPA’s critics distinguish RLUIPA from the myriad
accommodations of religious exercise by the political branches that
follow the best of our traditions.
RLUIPA’s critics—relying primarily on the Sixth Circuit’s
anomalous opinion in Cutter—have invoked essentially three
rationales to escape the controlling analysis of Amos. As set forth
below, none is persuasive as binding precedent forecloses all three.
i. The Establishment Clause Does Not Prohibit Law Passed Solely to
Accommodate Religious Exercise.
Rather than even attempting a showing that RLUIPA involves the
“government itself” advancing religion. Amos, 483 U.S. at 337, the
Sixth Circuit held that RLUIPA is unconstitutional because it
accommodates religious exercise without also accommodating other
fundamental rights.327 But the Supreme Court has expressly rejected
this rule, holding instead that where “government acts with the proper
purpose of lifting a regulation that burdens the exercise of religion,
we see no reason to require that the exemption comes packaged with
benefits to secular entities.”328 Legion other courts have rejected
arguments this argument over and over again in upholding Sections 2
and 3 of RLUIPA.329 This near unanimity is not surprising as the

327. Cutter, 349 F.3d at 265–66.
328. Amos, 483 U.S. at 338.
329. See, e.g. Midrash, 2004 WL 842527, *23 (“[A] (a law does not violate the
Establishment Clause simply because it lifts burdens on religious institutions without
affording similar benefits to secular entities”); Madison, 355 F.3d at 318–19 (holding that
under Amos “[t]he Establishment Clause’s requirement of neutrality does not mandate that
when Congress relieves the burdens of regulation on one fundamental right, that it must
similarly reduce government burdens on all other rights.”); Mayweathers, 314 F.3d at 1069
(holding that under Amos, RLUIPA “does not violate the Establishment Clause just
because it seeks to lift burdens on religious worship in institutions without affording
corresponding protection to secular activities or to non-religious prisoners.”); Charles, 348
F.3d at 610 (same); Sanabria, slip op. at 35 (same); Johnson, 223 F.Supp.2d at 826 (“[I]t
does not follow, as Defendants argue, that merely because Congress has acted to provide
religious activity with special protection and has not done the same for secular activity,
that Congress has advanced religion.”); Gerhardt, 221 F.Supp.2d at 847 (“Finally, the
[Amos] Court rejected the notion that a law which singles out religions for the benefit it
confers is per se unconstitutional.”); Cf. In re Young, 141 F.3d at 863 (rejecting reasoning

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Sixth Circuit’s theory in Cutter is fraught with problems on many
levels.
First, there is a conceptual problem. The Establishment Clause
certainly does require some form of “neutrality,” but that neutrality is
“between religion and religion, and between religion and
nonreligion,”330—not between religious exercise rights and all other
fundamental rights, as the Sixth Circuit would have it. Certainly
government cannot prefer the religious over the nonreligious: the
state cannot imprison those who refuse to believe in a Creator, or
withhold welfare checks from the atheist. But the government can—
and often does—protect a single fundamental right in a particular
piece of legislation or regulation, and the right to free religious
exercise is no exception.331 Such government actions do not “prefer”
religion over irreligion; instead, they simply protect or reinforce the
right to religious exercise, just as they would any other right.332 As
the Fourth Circuit recently held, “[i]t was reasonable for Congress to
seek to reduce the burdens on religious exercise for prisoners without
simultaneously enhancing, say, an inmate’s First Amendment rights
to access pornography.” 333 This is because the Supreme Court has
never held or even suggested “that legislative protections for
fundamental rights march in lockstep.”334 Moreover, not only would
“a requirement of symmetry of protection for fundamental liberties”
ignore Supreme Court precedent, “but it would also place prison
administrators and other public officials in the untenable position of
calibrating burdens and remedies with the specter of judicial secondof Justice Stevens’ solitary concurrence in Boerne that RFRA is impermissible because it
accommodates the religious without also providing a benefit for atheists as a viewpoint “in
direct contradiction to the declaration of a majority of the Supreme Court in” Amos).
330. Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
331. See, e.g., Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa et seq. (reacting to
Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970 (1978), and providing journalists
with greater protection against searches and seizures); Department of the Interior and
Related Agencies Appropriations Bill, 1989, H.R. Rep. No. 713, 100th Cong., 2d Sess. 72
(1988) (reacting to statement in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485
U.S. 439, 454, (1988), that “[t]he Government’s rights to the use of its own land . . . need
not and should not discourage it from accommodating religious practices like those
engaged in by the Indian respondents” (emphasis added), and defunding the project at
issue in Lyng that would have destroyed government land used by Indians for religious
exercise); Exemption Act of 1988, 26 U.S.C. § 3127 (reacting to United States v. Lee, 455
U.S. 252 (1982), that declined to recognize Amish free exercise of religion claim, and
providing a special Social Security tax exemption for employers and their employees who
are members of “a recognized religious sect” whose “established tenets” oppose
participation in Social Security); National Defense Authorization Act, 10 U.S.C. § 774.
332. In re Young, 141 F3d 854, 863 (8th Cir. 1998).
333. Madison, 355 F.3d at 319.
334. Id. at 318.

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guessing at every turn.”335 And following the Sixth Circuit’s logic in
Cutter to its conclusion leads to other absurdities. For example, if
protecting religious exercise rights alone reflects impermissible favor
for religion, then protecting any fundamental right alone other than
religious exercise would reflect impermissible disfavor for religion.
Second, this reasoning defies logic. If the purpose of the
Establishment Clause really were to preclude laws that single out
religious exercise for protection from government interference, then
the Establishment Clause would squarely contradict the Free Exercise
Clause, which does precisely that.
As the Supreme Court has
observed, “[n]or does the Constitution require complete separation of
church and state; it affirmatively mandates accommodation, not
merely tolerance, of all religions, and forbids hostility toward any.”336
Third, there are practical problems. Under the Sixth Circuit’s view,
the Establishment Clause would run amok, invalidating wholesale the
legion acts of the political branches—legislative and executive,
federal, state, and local—whose sole purpose and effect is to
accommodate religious exercise.337 This includes, among many
others, the federal statutory accommodations of religious peyote use
and headwear in the military discussed above; state constitutional
provisions that provide stronger protections for religious exercise (and
only religious exercise) than the federal Free Exercise Clause;338 state
335. Id. at 319.
336. See Lynch v. Donnelly, 465 U.S. 668, 673 (1984)).
337. See Madison, 355 F.3d at 320 (holding that RLUIPA had an invalid purpose that
“would throw into question a wide variety of religious accommodation laws”).
338. See Arizona v. Evans, 514 U.S. 1, 8 (1995) (“state courts are absolutely free to
interpret state constitutional provisions to accord greater protection to individual rights
than do similar provisions of the United States Constitution”). Since the Supreme Court’s
Smith decision, the courts of at least eleven states have held that their state constitutions
provide broader protection for religious exercise (and only religious exercise). See, e.g.,
Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994) (Sherbert strict
scrutiny test applies to free exercise claims under Alaska Constitution); Rupert v. City of
Portland, 605 A.2d 63 (Me. 1992) (Maine constitution requires compelling interest/least
restrictive means test); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990) (test of “least
restrictive alternative for protecting public safety” applies to Free Exercise claims under
Minnesota constitution); St. John’s Lutheran v. State Comp. Ins. Fund, 830 P.2d 1271
(Mont. 1992) (under Montana constitution “[T]he state may regulate affairs impacting
religious activity when there is an overriding governmental interest in so doing.”);
Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000) (Ohio constitution requires compelling
state interest/least restrictive means test); First Covenant Church v. City of Seattle, 840
P.2d 174 (Wash. 1992) (Under Washington constitution, “[a] facially neutral, evenhandedly enforced statute that does not directly burden free exercise may, nonetheless,
violate [the state constitution], if it indirectly burdens the exercise of religion.”); State v.
Miller, 549 N.W.2d 235 (Wis. 1996) (Wisconsin constitution requires compelling state
interest/least restrictive alternative test when free exercise of religion burdened); State v.
Evans, 796 P.2d 178, 14 Kan. App. 2d 591 (Kan.1990) (under Kansas constitution, “[o]nly

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statutes that provide broader protection to religious exercise (and only
religious exercise) than required by the federal or state constitution;339
government chaplaincy programs in Congress, the armed forces, and
in prisons that facilitate religious exercise (and only religious
exercise);340 and even particular prison regulations adopted by the
Federal Bureau of Prisons that accommodate religious exercise (and
only religious exercise).341
Another strange consequence of the Sixth Circuit’s reasoning is
that, if legislative and executive officials would merely tack on to
each protection of religious exercise the protection of another
fundamental right, then the entire (allegedly grievous) constitutional
problem would disappear. The Establishment Clause does not exist to
require government actors to undertake such formalistic (and
completely unprecedented) exercises. 342
Indeed, the Supreme Court has squarely rejected that argument
when it explained that it:
those interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion.”); Attorney Gen. v. Desilets, 636 N.E.2d
233 (Mass. 1994) (although Smith “substantially altered” federal constitutional standard,
Massachusetts constitution requires strict scrutiny when religious exercise burdened); In re
Browning, 476 S.E.2d 465, (N.C. 1996) (requiring “compelling state interest in the
regulation of a subject within the [North Carolina’s] Constitutional power to regulate”);
Rourke v. N.Y. Dep’t of Corr., 603 N.Y.S.2d 647 (N.Y. Sup. Ct. 1993) (New York
constitution requires least restrictive means for serving compelling state interest when laws
burden religious exercise), aff’d, 615 N.Y.S.2d 470 (N.Y. App. Div. 1994). See also Gary
S. Gildin, Coda to William Penn’s Overture: Safeguarding Non-Mainstream Religious
Liberty Under the Pennsylvania Constitution, 4 U. PA. J. CONST. L. 81, 125–26 & nn.200–
10 (2001).
339. Since the Supreme Court’s Smith decision, the political branches of at least twelve
states have, either by statute or constitutional amendment, provided stronger protection for
religious exercise (and only religious exercise). Those twelve states are Alabama, see
ALA. CONST. amend. 622; Arizona, see ARIZ. REV. STAT. ANN. §§ 41-1493 et seq.(West
2003); Connecticut, see CONN. GEN. STAT. ANN. § 52-571b (West 2003); Florida, see
FLA. STAT. ANN. §§ 761.01-761.04 (West 2003); Idaho, see IDAHO CODE §§ 73-401 et
seq. (Supp. 2002); Illinois see 775 ILL. COMP. STAT. ANN. §§ 35/1 -35/99 (West 2002);
New Mexico, see N.M. STAT. ANN. §§ 28-22-1 to 28-22-5 (Michie 2002); Oklahoma, see
OKLA. STAT. ANN. tit. 51, §251 (West 2003); Pennsylvania, 71 PA. CONS. STAT. ANN. §§
2401 et seq.; Rhode Island, see R.I. GEN. LAWS §§ 42-80.1-1 to 42-80.1-4 (2001); South
Carolina, see S.C.CODE.ANN. § 1-32-10 (Law. Co-op. 1999); and Texas, see TEX. CIV.
PRAC. & REM. CODE ANN. §§ 110.001 et seq. (West 2003).
340. See, e.g., Mockaitis, 104 F.3d at 1530 (holding that RFRA does not impermissibly
promote religion anymore than “[t]he creation of chaplaincies in Congress and in the
armed forces [which are] particularly striking promotions of religion.”).
341. See, e.g., Federal Bureau of Prisons Policy Statement at 15 (providing religious
prisoners accommodation for religious use of wine, an otherwise contraband substance in
prison); id. at 10–11 (providing religious prisoners relief from generally applicable work
duties in order to observe religious holidays); id. at 11–12 (providing religious prisoners
accommodation to allow visits by outside religious advisors that do not count against the
limit otherwise posed on social visits from outsiders) (on file with the author).
342. See Madison, 355 F.3d at 320 (noting “[t]he byzantine complexities that such
compliance would entail”).

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has never indicated that statutes that give special consideration to
religious groups are per se invalid. That would run contrary to the
teaching of our cases that there is ample room for accommodation
of religion under the Establishment Clause. Where, as here,
government acts with the purpose of lifting a regulation that
burdens the exercise of religion, we see no reason to require that
the exemption come packaged with benefits to secular entities. 343

Fourth, lacking any Supreme Court authority for its position, the
Sixth Circuit rests its anomalous holding on a hypothetical. If two
white supremacist prisoners—one secular and the other a religious
adherent to the Church of Jesus Christ Christian, Aryan Nation
(“CJCC”)—want to challenge a prison’s decision not to let them
possess white supremacist literature. According to the hypothetical,
assuming the showing of a substantial burden on religious exercise,
the religious prisoner would be able to challenge the prison’s failure
to accommodate his religious beliefs under RLUIPA’s strict scrutiny
standard, but the secular prisoner could bring free speech and
association claims against the policy, but only under the more
deferential standard of Turner v. Safley.344 Thus, the Cutter court
concludes, the “primary effect of RLUIPA is not simply to
accommodate the exercise of religion by individual prisoners, but to
advance religion generally by giving religious prisoners rights
superior to those of nonreligious prisoners.”345
But applying the reasoning of this hypothetical to factual
circumstances actually addressed by the Supreme Court reveals
starkly that the Court has already rejected that reasoning repeatedly.
For example, in Zorach, the Supreme Court rejected an Establishment
Clause challenge to a “release-time” program that permitted students
to leave public school grounds for religious—but not secular—
instruction.346 Thus, under the very program already approved by the
Court in Zorach, if there were two white supremacist students, the one
seeking instruction from CJCC would be excused, but the one seeking
instruction from a secular supremacist group would not. Similarly, in
Amos, the Supreme Court approved a provision of Title VII that
exempted religious organizations—and only religious organizations—
from the statute’s general prohibition of religious discrimination in
employment. Thus, under the very exemption approved by the Court

343.
344.
345.
346.

Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987) (emphasis added).
482 U.S. 78 (1987).
Cutter, 349 F.3d at 266 (citations and quotation marks omitted).
Zorach v. Clauson, 343 U.S. 306, 308 (1952).

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in Amos, if there were two white supremacist employers, a religious
one such as CJCC could hire based on religion, but the secular one
could not. 347
And why has the Supreme Court (and faithful lower courts) so
consistently rejected Establishment Clause challenges to these laws?
In short, government must be free to specially deregulate religious
exercise, because it is a category of private activity in which
government interference is uniquely misplaced. To quibble with that
is to quibble with the Religion Clauses themselves. The same
principle applies to RLUIPA—it lifts burdens only on religious
exercise in order to minimize government interference with a human
phenomenon that the Constitution itself recognizes to be uniquely
sensitive to government interference.348 Thus, notwithstanding the
superficial appeal of a single hypothetical, the overwhelming weight
of authority required a conclusion that RLUIPA does not offend the
Establishment Clause by lifting burdens on religious exercise.
Fifth, there is an historical problem. Laws that exist solely to
accommodate religious exercise are numerous because they represent
349
a time-honored American tradition.
And, as discussed supra,
accommodations by the political branches are all the more imperative
since Employment Division v. Smith narrowed the role of the judiciary
in this area. In other words, if the Sixth Circuit’s theory were
accepted, then the Smith Court’s invitation to enact religious
350
accommodations would appear to be an inducement to violate the
Establishment Clause. Notably, the Smith Court, in encouraging the
political branches to take responsibility for providing for
accommodation of religious exercise, did not even suggest that those
accommodations would be permissible only if packaged with other

347. See also Madison, 355 F.3d at 319 (Amos “does not at all indicate that Congress
must examine how or if any other fundamental rights are similarly burdened.”).
348. Of course, the First Amendment and laws like RLUIPA seek only to minimize
government involvement in private religious conduct, not to eliminate it altogether. Even
under these laws, whenever the specific religious practice of white supremacists (or any
other prisoner) would create a demonstrable threat to the safety of other inmates or to
prison security, prison administrators could still forbid the practice.
349. See, e.g., Kiryas Joel v. Grumet, 512 U.S. 687, 705, (1994) (“Our cases leave no
doubt that in commanding neutrality the Religion Clauses do not require the government
to be oblivious to impositions that legitimate exercises of state power may place on
religious belief and practice.”); Walz, 397 U.S. at 676–77 (“Few concepts are more deeply
embedded in the fabric of our national life . . . than for the government to exercise at the
very least this kind of benevolent neutrality toward churches and religious exercise
generally so long as none was favored over others and none suffered interference.”)
(emphasis added).
350. See Smith, 494 U.S. at 890.

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“secular” rights.
Accordingly, application of the Supreme Court’s instruction in
Amos, 351 requires rejection of the Sixth Circuit’s holding that
accommodations of religious exercise alone impermissibly advance
religion.
ii. RLUIPA Does Not Have Any Impermissible Effects on the
Religious Freedoms of Others.
As an alternative argument under Lemon’s effect prong, RLUIPA’s
critics assert that RLUIPA has impermissible third-party effects on
state prison officials. This argument is unsound as a matter of both
law and fact.
The argument relies primarily on Estate of Thornton v. Caldor,
Inc.352 administrators. There, the Court struck down a statute
imposing an absolute condition that employers retain employees who
refused to work on the Sabbath. In contrast to the “unfettered right
[given] to persons with certain religious practices [in Caldor]
regardless of the countervailing interests of other entities,” RLUIPA
(like RFRA) “addresses the countervailing interests of prison
administrators by allowing the government to burden inmates’
religious freedom, provided this burden serves as the least restrictive
means to achieve a compelling government interest.”353 The statute
in Caldor is also distinguishable from RLUIPA because, unlike the
absolute mandate imposed on private employers in Caldor, states
have “voluntarily committed [themselves] to lifting governmentimposed burdens on the religious exercise of publicly institutionalized
persons in exchange for federal” funds.354
Nor does Texas Monthly v. Bullock,355 support the proposition that
a statute may not benefit the religious if that benefit also burdens nonbelievers. In Texas Monthly, a fractured Court struck down a statute
that exempted certain religious publications from a state sales tax.
Even if that plurality opinion were the law, it distinguished the case
before it from one involving “remov[al of] a significant state-imposed

351. 483 U.S. at 338.
352. 472 U.S. 703 (1985).
353. Bitner, 285 F.Supp.2d at 600 n.7; see also Sanabria, slip op. at 32 (RLUIPA is
distinguishable from Caldor because it “invests prisoners with no absolute rights”) and
Gerhardt, 221 F.Supp.2d at 848–49 (same).
354. Madison, 355 F.3d at 321.
355. 489 U.S. 1(1989).

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deterrent to the free exercise of religion.”356 In contrast, RLUIPA
alleviates just such a deterrent to religious exercise, by generally
relieving substantial burdens on prisoners’ religious exercise.
Moreover, unlike the absolute exemption for the religious
publications in Texas Monthly, RLUIPA does not give an unfettered
right to religious exercise, but accounts for countervailing interests.
The policy argument advanced by RLUIPA’s critics—that the Act
will impose intolerable costs by making it impossible for prisons to
combat problems of religiously motivated gang violence—also fails
to rise to the level of a cognizable Establishment Clause violation.
First, far from removing a prison’s ability to address issues of prison
security implicated by gang violence, RLUIPA’s provisions expressly
grant prisons leeway to burden religious exercise where a compelling
interest—like security—is actually implicated.
Moreover, the empirical evidence contradicts this “sky will fall”
claim. In passing RLUIPA, Congress had before it a letter supporting
RLUIPA’s passage from the authorities overseeing federal prisons.
The letter reported that, in the six years that the Bureau of Prisons had
been required to apply RFRA, the BOP had not been overwhelmed by
frivolous prisoner lawsuits.357 Far from supporting second-guessing of
Congress’s policy judgment, the evidence only confirms “that
RLUIPA should not hamstring [a state’s] ability” to maintain safety
and order in its prisons.358
The Sixth Circuit’s Cutter opinion is equally unfounded in
asserting that RLUIPA will improperly affect third parties by
“induc[ing] prisoners to adopt or feign religious belief in order to
receive the statute’s benefits,” as a reason for invalidating the Act.359
Even if RLUIPA would produce that effect, RLUIPA (like RFRA)
does not prevent prison administrators from inquiring, as courts also
may, into the sincerity of the religious beliefs of prisoners seeking
relief from burdens on religious exercise. As discussed at supra Part

356. Id. at 15, (plurality opinion).
357. See 146 CONG. REC. S7776 (daily ed. July 27, 2000) (July 19, 2000 letter of
Robert Raben) (“Since enactment of RFRA in 1994, Federal inmates have filed
approximately 65 RFRA lawsuits in Federal court naming the Bureau of Prisons (or its
employees) as defendants. Most of these suits have been dismissed on motions by the
defendants . . . . RFRA has not . . . significantly burdened the operation of Federal
prisons.”). See also Developments in the Law—Religious Practice in Prison, 115
HARV.L.REV. 1891, 1894 (2000) (finding that federal officials overwhelmingly prevail in
RFRA cases).
358. Madison, 355 F.3d at 321.
359. Cutter, 349 F.3d at 266.

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II.B.1.a.ii, just as sincerity of belief is a “threshold requirement” for a
Free Exercise claimant,360 so too is it a threshold showing for a
RLUIPA or RFRA claimant.361 Thus, even assuming that RLUIPA
produces a flood of religion-faking, claim-filing prisoners—and there
is absolutely no evidence that it has—prison administrators retain the
means to address the issue of feigned belief.
In addition, the Sixth Circuit’s opinion in Cutter assumes that the
religious exercise to be accommodated is typically desirable to the
average prisoner. But this assumption has no basis in the record
before Congress or elsewhere. Acts of religious faith, though deeply
meaningful to an adherent, often appear irrational or baffling to a nonadherent, thus inviting derision rather than envy. Similarly, religious
rituals and observances frequently demand rigorous attention to detail
and form (e.g., keeping a kosher diet) that only a true religious
adherent would ever want to perform. The facts of the Seventh
Circuit’s decision in O’Bryan provide a good illustration. There, a
Wiccan prisoner sued under RFRA for the right to cast spells.362 It is
unlikely that many non-Wiccans would find spell-casting so desirable
that they would pretend to be Wiccan in order to obtain the “benefit”
of the right to do so.
Finally, even where the activity permitted by a religious
accommodation may be desirable outside a particular faith (e.g., wine
may be consumed in the religious context of communion, but is also
desirable on its own), that fact alone would hardly render an
accommodation unconstitutional. If it did, then all sorts of
accommodations for religious exercise in numerous contexts (even
those required under the more deferential Turner v. Safley test) would
be at risk of violating the Establishment Clause by creating some
incentive, no matter how minimal, to feign religious belief. For
example, an inducement to feign religious belief would presumably
arise from a statute that provided a religious exemption from the
general criminal prohibition against peyote use. Indeed, if peyote is
indeed a desirable (yet dangerous) hallucinogenic substance, as those
who have outlawed it believe,363 then the inducement to feign
360. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 215–19 (1972); Levitan v. Ashcroft,
281 F.3d 1313, 1320 (D.C. Cir. 2002).
361. See, e.g., Coronel v. Paul, 316 F. Supp. 2d 868, 876 (D. Ariz. 2004) (RLUIPA
requires a showing that the desired conduct is “motivated by sincere religious belief”);
Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001) (sincerity a required showing
under RFRA).
362. O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003).
363. See 21 U.S.C. § 812 (2004) (listing peyote as a schedule 1 controlled substance).

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religious devotion in order to obtain the benefit of the religious
accommodation would seem to be particularly strong. Nonetheless, in
explaining that the legislature, rather than the courts, would be the
appropriate place to provide an exemption for religious use of peyote,
the Supreme Court in Smith did not suggest that any inducement to
false piety created by the exemption would violate the Establishment
Clause.364
iii. The Mandates of the Free Exercise Clause Are Not a Ceiling On
Permissible Accommodation of Religious Exercise.
Another argument advanced by RLUIPA’s critics is that RLUIPA
impermissibly advances religion because its accommodation of
religious exercise exceeds what the Supreme Court has required under
the Free Exercise Clause in the prison setting under the deferential
test of Turner v. Safley and O’Lone v. Estate of Shabazz. But this
argument proves too much. On this theory, any accommodation of
prisoner religious exercise that is not mandated by the Free Exercise
Clause would violate the Establishment Clause.
Once again, this argument ignores the nation’s long history of
specially accommodating religious exercise, would invalidate
wholesale numerous federal and state laws that accommodate religion
beyond what the Free Exercise Clause requires, and ignores Smith’s
specific invitation to the political branches to provide that additional
measure of accommodation. Most importantly, however, this
argument is foreclosed by Amos, in which the Court held that “[i]t is
well established . . . that the limits of permissible accommodation to
religion are by no means co-extensive with the noninterference
mandated by the Free Exercise Clause.”365
3. RLUIPA Does Not Foster Excessive Entanglement With Religion
With regard to whether RLUIPA creates excessive entanglement,
RLUIPA’s critics have asserted that the Act causes entanglement by
forcing states to become knowledgeable about the religious practices
of their inmates.366 Once again, the argument proves too much; if it
were correct, government could never take account of religious belief

364. See Employment Div. v. Smith, 494 U.S. 872, 890 (1990).
365. See Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987) (internal
quotation marks omitted).
366. See, e.g., Brief of Appellants at 35–36, Benning v. Georgia, 391 F.3d 1299 (11th
Cir. 2004) (Nos. 04-10979-cc and 04-11044) (hereinafter “Georgia Br.”).

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for the purpose of accommodation, even under the more deferential
Turner v. Safley test.367 Indeed, an identical argument was rejected
concerning the application of RFRA in the prison setting.368 Finding
excessive entanglement here would contradict not only common
sense, but the Supreme Court’s statement that “[t]here is ample room
under the Establishment Clause for ‘benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.’”369
Indeed, RLUIPA is designed precisely to minimize government
entanglement in religious exercise; RLUIPA’s deregulation of
religion is the exact opposite of entanglement. As in Amos, “[i]t
cannot be seriously contended that [the statutory accommodation of
religious exercise] impermissibly entangles church and state; the
statute effectuates a more complete separation of the two and avoids
the kind of intrusive inquiry into religious belief” that the Constitution
prohibits.370
Similarly, far from increasing entanglement, RLUIPA’s definition
of “religious exercise” tends to decrease it. As discussed at length
supra, the Act defines “religious exercise” to include “any exercise of
religion, whether or not compelled by, or central to, a system of
religious belief,”371 precisely tracking Supreme Court precedent.
RLUIPA thus entails no greater entanglement problem than the
ordinary application of Free Exercise doctrine. That doctrine,
moreover, is designed to minimize entanglement by precluding
inquiry into the rationality of a belief or its centrality within a
religious system.372 Like Free Exercise doctrine itself, RLUIPA’s
definition of religious exercise tends to avoid—not create—
entanglements.
367. Notably, even the Cutter court was unwilling to swallow this argument. See Cutter
v. Wilkinson, 349 F.3d 257, 267 (6th Cir. 2003) (“we question whether RLUIPA requires
any greater interaction between government officials and religion than exists under present
law.”).
368. See, e.g., Mockaitis, 104 F.3d at 1530 (“Of course, application of RFRA, like the
application of the First Amendment itself and any objection made under this amendment,
requires a court to determine what is a religion and to define an exercise of it. There is no
excessive entanglement.”).
369. Amos, 483 U.S. at 334.
370. Id. at 339.
371. 42 U.S.C. § 2000cc-5(7)(A) (2004).
372. See, e.g., Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (“It is not within
the judicial ken to question the centrality of particular beliefs or practices to a faith, or the
validity of particular litigants’ interpretations of those creeds.”); Thomas v. Review Bd. of
Ind., 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merit First Amendment protection.”).

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In sum, because RLUIPA—like so many other religious
accommodations—satisfies all three elements of the Lemon test, it
does not violate the Establishment Clause.373
B. RLUIPA Section 3 Is a Constitutional Exercise of Congress’s
Spending Power Under Article I
RLUIPA specifically limits application of its substantial burden test
to circumstances in which the burden is “imposed in a program or
activity that receives Federal financial assistance.”374 Thus, RLUIPA
invokes congressional authority under the Spending Clause, which
empowers Congress to “lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defense and
general Welfare of the United States.”375 “Incident to this power,
Congress may attach conditions on the receipt of federal funds, and
has repeatedly employed the power to further broad policy objectives
by conditioning receipt of federal moneys upon compliance by the
recipient with federal statutory and administrative directives.”376
“When Congress acts pursuant to its spending power, it generates
legislation much in the nature of a contract: in return for federal
funds, the state agrees to comply with federally imposed
conditions.”377 In this way, Congress may achieve indirectly through
the spending power what it could not achieve directly otherwise.378
Since Steward Machine Co. v. Davis,379 the Supreme Court has
consistently respected the power of Congress to attach conditions to
federal spending. Although Congress’s power to attach such
conditions is not unlimited, a party attacking them bears a heavy
burden to show that they are invalid.380 Specifically, conditions on
federal funds are permitted so long as they satisfy the four
requirements set out in South Dakota v. Dole.381
373. Because RLUIPA satisfies the Lemon test, it cannot reasonably be viewed as
endorsing religion. See Mitchell v. Helms, 530 U.S. 793, 835 (2000).
374. RLUIPA § 3(b)(1). So long as a prisoner can point to the receipt of federal funds
by the state department of corrections that has incarcerated him, that prisoner may invoke
RLUIPA’s Spending Clause jurisdictional hook.
375. U.S. CONST. art. I, § 8, cl. 1.
376. South Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation marks
omitted).
377. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640 (1999) (internal
quotation marks omitted).
378. See Fullilove v. Klutznick, 448 U.S. 448, 474 (1980).
379. 301 U.S. 548 (1937).
380. See, e.g., Kansas v. United States, 214 F.3d 1196, 1200 (10th Cir. 2000).
381. 483 U.S. at 207–08.

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First, the conditions must serve “the general welfare,” rather than a
purely private or local interest.382 Second, they must be imposed
“unambiguously. . . , enabl[ing] the States to exercise their choice
knowingly, cognizant of the consequences of their participation.”383
Third, grants “might be illegitimate” if they do not bear some
reasonable or minimal relationship “to the federal interest in
particular national projects or programs.’” 384 Fourth, the conditions
must not violate any independent constitutional provisions.385
Every court to address the issue,386 including the Seventh and Ninth
Circuits, has held that RLUIPA Section 3 readily meets all of these
requirements and so is a legitimate exercise of the spending power.
1. RLUIPA Is in Pursuit of the General Welfare
For the purposes of better “protect[ing] prisoners’ religious rights
and to promote the rehabilitation of prisoners,”387 RLUIPA imposes
conditions on the use of federal funds received by state prisons, such
as the federal grants that all states receive for their departments of
corrections.388 These purposes “fall[] squarely within Congress’s
pursuit of the general welfare.”389 “[P]rotecting religious worship in
institutions from substantial and illegitimate burdens does promote
the general welfare. . . . [B]y fostering non-discrimination, RLUIPA

382. Id. at 207 (internal citation omitted).
383. Id. (internal quotation marks omitted); Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 640 (1999) (“In interpreting language in spending legislation, we thus insis[t]
that Congress speak with a clear voice, recognizing that [t]here can, of course, be no
knowing acceptance [of the terms of the putative contract] if a State is unaware of the
conditions [imposed by the legislation] or is unable to ascertain what is expected of it.”)
(internal quotation marks omitted).
384. Dole, 483 U.S. at 207–08, 107 S.Ct. at 2796 (internal quotation marks and
citations omitted); see New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408,
2423 (1992) (conditions must “bear some relationship to the purpose of the federal
spending”).
385. Dole, 483 U.S. at 208 (internal citations omitted).
386. See supra nn. 294–98.
387. Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003).
388. RLUIPA’s legislative history confirms that all states receive federal money for
prisons. See The Need for Federal Protection of Religion Freedom After Boerne v. Flores:
Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary,
105th Cong. (1998) (testimony of Isaac M. Jaroslawicz, Dir. of Legal Affairs, the Aleph
Institute), available at http://www.house.gov/ judiciary/222356.htm (“all state criminal
justice systems obtain federal funding of one kind or another.”). Additionally, state and
local correctional facilities were budgeted $258 million by the Office of Justice Programs
for fiscal year 2000, as well as $426 million for State prison drug treatment programs for
that same year. See Federal Aid to States for Fiscal Year 2000 Table IV, Appendix A, U.S.
Census Bureau (2001), available at http://www.census.gov/prod/2001pubs/fas-00.pdf.
389. Charles, 348 F.3d at 607.

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follows a long tradition of federal legislation designed to guard
against unfair bias and infringement on fundamental freedoms.”390
This congressional judgment is especially secure because “courts
should defer substantially to the judgment of Congress” in this
regard.391
2. RLUIPA Places Unambiguous Conditions on the Receipt of
Federal Funds
RLUIPA imposes its conditions “clearly and unambiguously,”
giving states notice of the regulatory burdens they undertake when
accepting federal funds for their prison programs.392 Specifically,
RLUIPA’s plain language conditions a state’s receipt of federal
money upon that state’s refraining from imposing substantial burdens
on prisoners’ religious exercise, unless the burdens represent the least
restrictive means to advance a compelling government interest. Thus,
by expressly conditioning “the receipt of federal money in such a way
that each State is made aware of the condition and is simultaneously
given the freedom to tailor compliance according to its particular
penological interests and circumstances,”393 RLUIPA amply satisfies
Dole’s “clear and unambiguous” requirement. Though a state may
complain about a court reviewing its decisions under the compelling
interest and least restrictive means test, “it certainly could have
refused federal funding.”394
Notwithstanding RLUIPA’s plain language, some state prison
systems have asserted that they were somehow not “unambiguously
apprised” of RLUIPA’s conditions.395 This argument is a nonstarter,
since “[b]y its plain language, RLUIPA clearly communicates that
any institution receiving federal funds must not substantially burden
the exercise of religion absent a showing that the burden is the least
restrictive means of serving a compelling government interest.”396 Not
390. Mayweathers v. Newland, 314 F.3d 1062, 1066–67 (9th Cir. 2002) (emphasis in
original).
391. South Dakota v. Dole, 483 U.S. 203, 207 (1987).
392. Charles, 348 F.3d at 608; Mayweathers, 314 F.3d at 1067 (“RLUIPA
unequivocally states that it applies to any ‘program or activity that receives Federal
financial assistance.’ 42 U.S.C. § 2000cc-1(b)(1).”).
393. Charles, 348 F.3d at 608.
394. Id. Nor does the argument that the least restrictive means test is “amorphous” and
“unworkable” in the prison environment pass muster. This argument boils down to
impermissible second-guessing of Congress’s policy judgment.
395. Georgia Br. at 14.
396. Mayweathers, 314 F.3d at 1067; accord Charles, 348 F.3d at 608. Moreover, any
assertion that RLUIPA lacks any relationship because it does not target any specific State

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only is the existence of RLUIPA’s conditions unambiguous, but so
are the contours of those conditions: the substantial burden standard is
well-developed and familiar as the result of years of free exercise
litigation, both before and after Employment Division v. Smith.397
Similarly infirm is the claim that the compelling interest and least
restrictive means standard is too ambiguous for a state to make an
“informed choice” about what conditions are being attached to federal
funds. This standard is hardly novel; rather, it is familiar to any firstyear law student as the “strict scrutiny” test that applies to states
under the Fourteenth Amendment in a wide variety of
circumstances.398
The fact that application of RLUIPA’s strict scrutiny standard may
yield different outcomes under different factual circumstances does
not somehow create a fatal ambiguity in RLUIPA’s conditions. To the
contrary, the Supreme Court in Pennhurst State School and Hospital
v. Halderman399 “held that conditions may be ‘largely indeterminate’
so long as that statute ‘provid[es] clear notice to States that they, by
accepting funds under the Act, would indeed be obligated to comply
with [the conditions].’” 400 In this regard, RLUIPA’s condition on
federal funds is indistinguishable from those upheld under the
Spending Clause as a part of other civil rights legislation, such as
Title IX’s general language proscribing school toleration of severe
student-on-student sexual harassment.401
A final argument that has been raised by RLUIPA’s critics402 is the
action, see, e.g., Georgia Br. at 10, simply ignores the Act’s plain language, which
specifies that it applies when a State engages in the specific action of imposing a
substantial burden on a prisoner’s religious exercise.
397. 494 U.S. 872 (1990).
398. See, e.g., Smith, 494 U.S. at 886 n.3 (“Just as we subject to the most exacting
scrutiny laws that make classifications based on race, . . . or on the content of speech, . . .
so too we strictly scrutinize governmental classifications based on religion.”); Midrash
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004) (noting “least
restrictive means” as part of strict scrutiny test, both before and after Smith).
399. 451 U.S. 1 (1981).
400. Mayweathers, 314 F.3d at 1067 (quoting Pennhurst, 451 U.S. at 24–25 (emphasis
added).
401. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650–51 (1999) (Title IX’s
general language proscribing school toleration of severe student-on-student sexual
harassment satisfied Pennhurst’s notice requirement, even though question of “whether
gender-oriented conduct rises to level of actionable harassment . . . depends on a
constellation of surrounding circumstances, expectations, and relationships.”) (internal
citations and quotation marks omitted). See also Lau v. Nichols, 414 U.S. 563, 568–69
(1974) (upholding condition that public schools receiving federal funds comply with Title
VI of Civil Rights Act of 1964), overruled on other grounds, Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265 (1978).
402. See, e.g., Charles v. Verhagen, 348 F.3d 601, 607–08 (7th Cir. 2003) (discussing
argument raised by the state); Georgia Br. at 15.

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assertion that Pennhurst held that the words “least restrictive” are too
ambiguous to give a state notice of the conditions attached to funds.
But as the Seventh Circuit recognized in Charles,403 this argument
completely mischaracterizes Pennhurst’s holding. The issue in
Pennhurst was whether a particular federal act included the
requirement that States provide “appropriate treatment” to disabled
residents in the “least restrictive environment” as a condition of
federal funding.404 As a matter of statutory interpretation, the Court
held that the act did not impose that condition. Specifically, the Court
found that the words “least restrictive environment” appearing in a
stand alone section of the act—separate from other sections of the act
that expressly set forth conditions on receipt of federal money—
simply “reflected Congress’s justification, or policy goals, for
appropriating federal money to the States through the Act, not
conditions associated with the receipt of federal funds.”405 Nowhere in
Pennhurst did the Court hold that if Congress had explicitly made
giving treatment in the “least restrictive environment” a condition of
receiving federal funds, the “least restrictive” language would have
been too ambiguous. Thus, Pennhurst does not provide a basis for
striking down the Act, because RLUIPA, unlike the statute in
Pennhurst, expressly makes application of the least restrictive means
test a condition of receipt of federal funds.
3. RLUIPA’s Conditions Relate to a Legitimate Federal Interest
The Supreme Court has repeatedly made clear that there is no
requirement of a highly particularized relationship between the
conditions imposed on a State pursuant to the Spending Power and
the purposes of the spending programs. Instead, the Supreme Court
has said that “conditions on federal grants might be illegitimate if they
are unrelated to the federal interest,”406 and need only possess “some
relationship to the purpose of the federal spending.”407 The threshold
of relatedness required by this test is a “low” one.408 In other words,
“[t]he required degree of . . . relationship is one of reasonableness or

403. 348 F.3d at 608.
404. Pennhurst, 451 U.S. at 18.
405. Charles, 348 F.3d at 608 (citing Pennhurst, 451 U.S. at 19, 23) (emphasis added).
406. South Dakota v. Dole, 483 U.S. 203, 207 (1987) (quotation marks omitted)
(emphasis added).
407. New York v. United States, 505 U.S 144, 167 (1992) (emphasis added).
408. Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002).

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minimum rationality.”409
RLUIPA more than satisfies this standard. Regardless of the
particular federally funded program at issue, the conditions of
RLUIPA always relate to the same federal purpose: that public funds
“not be spent in any fashion which encourages, entrenches,
subsidizes, or results”410 in substantial burdens on, or discrimination
against, religious exercise. As the Seventh Circuit held, “Congress has
an interest in allocating federal funds to institutions that do not
engage in discriminatory behavior or in conduct that infringes
impermissibly upon individual liberties.”411
Just as Congress has prohibited federal money from being used for
race discrimination (Title VI), gender discrimination (Title IX), or
disability discrimination (Section 504 of the Rehabilitation Act) even
where such discrimination is not otherwise barred by the Constitution,
RLUIPA’s restrictions ensures that federal funds are not used for
purposes Congress believes are contrary to the public welfare. In this
regard, RLUIPA simply “follows in the footsteps of a long-standing
tradition of federal legislation that seeks to eradicate discrimination
and is ‘designed to guard against unfair bias and infringement on
fundamental freedoms.’”412
Moreover, in light of the reasonable perception that religious
exercise has rehabilitative qualities, Congress “can rationally seek to
insure that states receiving federal funds targeted at rehabilitating
prisoners are not simultaneously using those funds or other federal
409. Kansas v. United States, 214 F.3d 1196, 1199 (10th Cir. 2000) (emphasis added).
Other Spending Clause cases also demonstrate that there need only be a rational
connection (rather than any particularized nexus) between the imposed conditions and the
purpose of the funds. See, e.g., Oklahoma v. United States Civil Service Comm’n, 330
U.S. 127, 129 (1947) (upholding a provision of the Hatch Act prohibiting state employees
“whose principal employment is in connection with any activity which is financed in
whole or in part” by the United States from taking “any active part in political
management or in political campaigns,” even though this exercise of the Spending Power
was not attached to any particular spending program); Salinas v. United States, 522 U.S.
52, 60–61 (1997) (upholding application of a federal bribery statute covering entities
receiving more than $10,000 in federal funds); United States v. Dierckman, 201 F.3d 915,
922–23 (7th Cir. 2000) (upholding Spending Clause legislation conditioning receipt of
federal farm benefits on a farmer’s willingness not to cultivate wetlands, even though the
benefits farmers lost for violating conditions were not limited to those relating to wetlands
preservation); Garrett v. Univ. of Ala. at Birmingham Bd. of Trustees, 344 F.3d 1288,
1293 (11th Cir. 2003) (per curiam) (holding that a state university’s acceptance of federal
funds effectuated a valid waiver of its Eleventh Amendment immunity from suit under the
Rehabilitation Act); Jim C. v. United States, 235 F.3d 1079, 1081–82 (8th Cir. 2000) (en
banc) (upholding application of section 504 of the Rehabilitation Act to a state agency).
410. Lau v. Nichols, 414 U.S. 563, 569 (1974).
411. Charles v. Verhagen, 348 F.3d 601, 608 (7th Cir. 2003).
412. Id. at 607 (quoting Mayweathers v. Newland, 314 F.3d at 1067).

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money to impede prisoners’ exercise of religion and its perceived
rehabilitative effects.”413 Here, there is an unmistakable relationship
between federal funding of correctional institutes to assist in the
rehabilitation of prisoners, and RLUIPA’s conditions designed to
protect prisoners’ religious exercise, which may have rehabilitative
benefits.414 As one court has noted, “if Congress can restrict highway
funds, used to build and repair roads, with a condition mandating a
minimum drinking age, Congress can certainly restrict prison funds,
used to support rehabilitation and education programs, with a
condition mandating accommodation of religious activity.”415
Finally, there is no basis for any argument that the Act reaches too
far by regulating all programs or activities of the state department of
corrections that received the federal money, even if the particular
program about which a prisoner complains did not receive any federal
money directly.416 Again, RLUIPA’s conditions follow in the
footsteps of other federal civil rights acts like Title VI,417 Title IX,418
and Section 504 of the Rehabilitation Act,419 each of which limit all of
the activities of the state agency that receives federal funds, even if
those agency activities do not directly receive federal money.
Congress’s imposition of a condition on all the operations of a state
agency in RLUIPA and other civil rights legislation ensures that
federal funds, which are fungible,420 are not used to support conduct
that Congress believes is injurious to the public welfare.421 Indeed, in
413. Charles v. Verhagen, 220 F.Supp.2d 955, 963 (W.D. Wis. 2002).
414. See, e.g., Charles, 348 F.3d at 609 (“[T]he goal of federal corrections funding and
the conditions imposed by RLUIPA, with respect to the protection of prisoners’ religious
rights, share the goal of rehabilitation.”).
415. Johnson v. Martin, 223 F.Supp.2d 820, 831 (W.D. Mich. 2002).
416. See 42 U.S.C. § 2000cc-5(6) (2000) (“The term ‘program or activity’ means all of
the operations of any entity as described in paragraph(1) or (2) of section 2000d-4a of this
title [section 606 of the Civil Rights Act of 1964].”).
417. 42 U.S.C. § 2000d (2000) (prohibiting discrimination on the basis of “race, color,
or national origin” in “any program or activity receiving Federal financial assistance”).
418. 20 U.S.C. § 1681(a) (2000) (prohibiting discrimination on the basis of sex in any
“education program or activity receiving Federal financial assistance”).
419. 29 U.S.C. § 794(a) (2000) (prohibiting discrimination on the basis of disability in
“any program or activity receiving Federal financial assistance”).
420. See Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 175–76 (3d Cir.
2002) (rejecting Spending Clause challenge toRehabilitation Act), cert. denied, 537 U.S.
1232 (2003); United States v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998) (“[M]oney is
fungible and its effect transcends program boundaries.”), cert. denied, 525 U.S. 879
(1998).
421. See Brief for Appellee United States of America, at 18, Benning v. Georgia, 391
F.3d 1299 (11th Cir. 2004) (Nos. 04-10979-CC and 04-11044-CC). In addition,
Congress’s decision to impose RLUIPA’s conditions on all operations of the State
department of corrections that receives federal funds reflects a decision “to be guided by

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upholding a constitutional challenge to Title VI, the Supreme Court
held that it is Congress’s prerogative “to fix the terms on which its
money allotments to the States shall be disbursed.”422
Furthermore, a State has a simple solution at its disposal to
conditions that it believes reach too far in proportion to the benefit of
the offered money—it may decline the federal money.423 To be sure,
the Supreme Court has mentioned in passing that “that in some
circumstances the financial inducement offered by Congress might be
so coercive as to pass the point at which ‘pressure turns into
compulsion.’”424 But the Court has also been quick to hold that
coercion does not arise merely because the prospect of a large influx
of federal funds into the state coffers is too tempting to refuse.
Recognizing that any federal spending statute is ‘is in some measure a
temptation,’” the Court stated that “‘to hold that motive or temptation
is equivalent to coercion is to plunge the law in endless
difficulties.’”425 Thus, even where the scope of the federal grant at
issue may make the State’s voluntary decision not to accept the funds
“an unrealistic option,” compliance with the conditions placed on the
federal funds “is the price a federally funded [entity] must pay.”426 In
short, if a State wishes to receive any federal funding for its prisons,
“it must accept [RLUIPA’s] related, unambiguous conditions in their
entirety.”427
each State’s own governmental structure in determining” the breadth of the Act’s
coverage. Id. at 23. Each State “establishes the allocation of operations and functions
among departments of the state government. Congress reasonably may presume, however,
that States normally place related operations with overlapping goals, constituencies, and
resources in the same department. That level of coverage, broader than simply the discrete
program that nominally receives the funds, but narrower than the entire state government,
is an appropriate means of achieving the legitimate and entirely constitutional goal of
ensuring that no federal money supports or facilitates the imposition of unnecessary
burdens on religious exercise.” Id.
422. Lau v. Nichols, 414 U.S. 563, 569 (1974).
423. See Board of Education of Westside Community School v. Mergens, 496 U.S. 226,
241 (1990) (noting that a State “seeking to escape the statute’s obligations could simply
forgo federal funding”); Charles v. Verhagen, 220 F.Supp.2d 955, 964 (W.D. Wis. 2002)
(“If the conditions imposed by the federal government are so out of proportion to the size
of the funding stream on offer, a rational state will decline the funds and remain free of the
onerous conditions.”).
424. South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Machine Co. v.
Davis, 301 U.S. 548, 590 (1937)).
425. Dole, 483 U.S. at 211 (quoting Steward Machine, 301 U.S. at 589–90).
426. Mergens, 496 U.S. at 241. See also Oklahoma v. Schweiker, 655 F.2d 401, 414
(D.C. Cir. 1981) (rejecting the argument that the size of Medicaid grants that states could
be required to forego made federal conditions coercive, because it “is not the size of the
stake that controls, but the rules of the game”); Nevada v. Skinner, 884 F.2d 445, 446–50
(9th Cir. 1989) (holding that the risk of losing approximately ninety-five percent of State’s
highway funds does not make federal conditions coercive).
427. Charles v. Verhagen, 348 F.3d 601, 609 (7th Cir. 2003).

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4. RLUIPA Does Not Violate Any Independent Constitutional
Requirement
Finally, RLUIPA does not violate any other constitutional
provision, such as the Establishment Clause428 or Tenth
Amendment.429
In sum, if a particular state would rather not comply with
RLUIPA’s unambiguous conditions imposed on the use of federal
prison funds, it has been free since the passage of that Act—and
remains free to this day—simply to decline that funding.430 A State is
not free, however, to have its cake and eat it too, to accept federal
funds while disregarding the federal conditions associated with them.
To allow a State that additional latitude would be to allow a State to
dictate to Congress how federal funds shall be used, which flies in the
face of the constitutional structure of federalism developed from the
Supremacy Clause.431 Thus, in passing RLUIPA Section 3, Congress
acted within its authority under the Spending Clause.
C. RLUIPA Section 3 Is a Constitutional Exercise of Congress’s
Commerce Clause Power Under Article I
Commerce Clause legislation is entitled to the same judicial
deference and strong presumption of constitutionality as are other
Acts of Congress: “In reviewing an act of Congress passed under its
Commerce Clause authority, we apply the rational basis test as
interpreted by the [Supreme C]ourt.”432 By including a jurisdictional
element in the Act—i.e., Section 3(b)(2), which makes the Act
applicable where “the substantial burden affects, or removal of that
substantial burden would affect, commerce with foreign nations,
among the several States, or with Indian tribes”433—Congress ensured
that RLUIPA falls well within the confines of Congress’s Commerce
Clause power.
RLUIPA’s inclusion of a jurisdictional element sets the Act apart
428. See U.S. CONST. amend. I.
429. See U.S. CONST. amend. X.
430. See New York v. United States, 505 U.S. 144, 168 (1992) (“[T]he residents of the
State retain the ultimate decision as to whether or not the State will comply. If a State’s
citizens view federal policy as sufficiently contrary to local interests, they may elect to
decline a federal grant.”).
431. See U.S. CONST. art. VI, par. 2 (“[T]he Laws of the United States . . . shall be the
supreme Law of the Land.”).
432. See Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192, 203 (5th Cir.
2000).
433. 42 U.S.C. § 2000cc-1(b)(2) (2000).

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from the statute struck down by the Supreme Court in United States v.
Lopez. 434 In Lopez, the Court explained that a jurisdictional element
allows a court to determine through “case-by-case inquiry, that the
[regulated activity] in question affects interstate commerce,”435
Where a statute contains such a jurisdictional element, courts are
quick to hold that the statute withstands constitutional scrutiny under
the Commerce Clause.436 Accordingly, the presence of jurisdictional
element in RLUIPA Section 3(b)(2) suffices alone to reject a facial
challenge to the Act as falling outside the bounds of the Commerce
power: by its own terms, RLUIPA applies only to conduct affecting
“commerce with foreign nations, among the several States, or with
Indian tribes.”437
The jurisdictional element also precludes as-applied challenges
under the Commerce Clause. If the conduct at issue in a particular
case satisfies the jurisdictional requirement of RLUIPA Section
3(b)(2), then the conduct also falls within the sweep of the commerce
power and may be regulated constitutionally. But if the facts do not
satisfy the jurisdictional element, then the statute does not even reach
the conduct under the commerce power. Thus, RLUIPA respects
constitutional limits by not regulating conduct outside the scope of the
Commerce power.438 In other words, the Act applies either

434. 514 U.S. 549 (1995).
435. Id. at 561. See also United States v. Morrison, 529 U.S. 598, 611–12 (2000)
(holding a statute unconstitutional statute because it lacked an “express jurisdictional
element which might limit its reach” to activities that “have an explicit connection with or
effect on interstate commerce.”).
436. See, e.g., Lopez, 514 U.S. at 561–62 (noting that a jurisdictional element
“ensure[s], through case-by case inquiry, that the [activity] in question affects interstate
commerce”); United States v. Green, 350 U.S. 415, 420–21 (1956) (upholding the
constitutionality of the Hobbs Act, 18 U.S.C. § 2332a(a)2, which prohibits the use, without
lawful authority, of a weapon of mass destruction where the results of such use “affect
interstate or foreign commerce”); United States v. Cunningham, 161 F.3d 1343, 1346
(11th Cir. 1998) (“[A] statute regulating noneconomic activity necessarily satisfies Lopez
if it includes a jurisdictional element . . .”) (quotation marks omitted) (emphasis in
original); United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995) (“The statute before
us avoids the constitutional deficiency identified in Lopez because it requires a legitimate
nexus with interstate commerce” by means of a jurisdictional element.); United States v.
Chesney, 86 F.3d 564, 568–69 (6th Cir. 1996) (concluding the “presence of the
jurisdictional element defeats [defendant’s] facial challenge”); United States v. Bishop, 66
F.3d 569, 588 (3d Cir. 1995) (“[T]he jurisdictional element in [the federal carjacking
statute] independently refutes appellants’ arguments that the statute is constitutionally
infirm.”).
437. RLUIPA § 3(b)(2), 42 U.S.C. § 2000cc-1(b)(2) (2000). Cf. U.S. CONST. art. I., § 8,
cl. 3.
438. See United States v. Odom, 252 F.3d 1289, 1296 (11th Cir. 2001) (“The presence
of a jurisdictional element may preserve the constitutionality of the statute so long as a
case-by-case analysis requires sufficient proof of a connection to interstate commerce.”);

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constitutionally, or not at all.439
Because the presence of a valid jurisdictional element dooms any
challenge to the Act’s constitutionality under the Commerce Clause,
opponents of RLUIPA have advanced two main arguments to try and
show that the jurisdictional element is insufficient. Both lack merit.
First, they make the hypertechnical assertion that the jurisdictional
element is invalid because it uses the language “affects . . .
commerce” instead of “substantially affects commerce.”440 This
argument ignores, however, that the Supreme Court in Lopez
specifically cited the language “affects interstate commerce” as an
appropriate jurisdictional element.441 Specifically, the Court cited a
statute making it a federal crime “for a felon to ‘receiv[e], posses[s],
or transpor[t] in commerce or affecting commerce . . . any
firearm.’”442 Lower courts have also held that that a jurisdictional
element using the language “affects commerce” is sufficient.443
Second, opponents have argued that RLUIPA Section 4(g) is a
separate jurisdictional provision that establishes “presumptive federal
jurisdiction,” thereby rendering Section 3(b)(2) ineffective as a
constitutional jurisdictional element.
Section 4(g) of RLUIPA provides that
see also United States v. Grassie, 237 F.3d 1199, 1211 (10th Cir. 2001) (“[B]y making
interstate commerce an element of the crime under [the Church Arson Prevention Act] . . .
to be decided on a case-by-case basis, constitutional problems are avoided.”); United
States v. Harrington, 108 F.3d 1460, 1465 (D.C. Cir. 1997) (“Indeed, the Court
specifically suggested that a jurisdictional element could justify the application of the
commerce power to a single firearm possession, despite the inevitable insubstantiality of
such a one-time, small-scale event from the perspective of interstate commerce.”).
439. See Hale O Kaula Church v. Maui Planning Comm’n, 229 F.Supp.2d 1056, 1072
(D. Hi. 2002) (concluding that the “jurisdictional element” of § 2(a)(2)(B) precludes a
Commerce Clause challenge); Johnson v. Martin, 223 F.Supp.2d 820, 828 (W.D. Mich.
2002) (“RLUIPA is saved by its jurisdictional requirement which establishes the requisite
nexus to interstate commerce to satisfy the Commerce Clause.”); Freedom Baptist Church
of Del. Township v. Middletown, 204 F.Supp.2d 857, 867 (E.D. Pa. 2002) (upholding
RLUIPA’s land use provisions and noting that “subsection (a)(2)(B) on its face has an
interstate commerce jurisdictional element”); Mayweathers v. Terhune, No. Civ. S-961582 LKK/GGH P, 2001 WL 804140, at *7–8 (E.D. Cal. July 2, 2001) (“The
jurisdictional element in § 3(b)(2) thereby ensures that Congress’s Commerce Clause
power is only exercised in those cases where interstate commerce is directly affected by
the prison regulation at issue”).
440. Brief for the State of Georgia, at 19, Benning v. Georgia, 391 F.3d 1299 (11th Cir.
2004) (Nos. 04-10979-CC and 04-11044-CC).
441. Lopez, 514 U.S. at 561 n.3.
442. Id. at 561–62 (quoting United States v. Bass, 404 U.S. 336, 337 (1971)) (emphasis
added).
443. See, e.g., United States v. Cunningham, 161 F.3d 1343, 1345 (11th Cir. 1998)
(rejecting a challenge to a jurisdictional element restricting statutory application to conduct
“in or affecting commerce”); Johnson, 223 F.Supp.2d at 830 (rejecting the argument that
omission of the word “substantially” in a jurisdictional element invalidates RLUIPA).

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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.444

On its face, § 4(g) does not create presumptive federal jurisdiction,
but is instead an additional affirmative defense that applies after a
plaintiff has met his burden of establishing commerce clause
jurisdiction under § 3(b)(2).445 That is, in a case where jurisdiction is
predicated on the commerce power, § 4(g) allows a State, to defeat
jurisdiction if the State can show that the burdens at issue “would not
lead in the aggregate to a substantial effect on commerce.”446 In
practical effect, therefore, RLUIPA does require a substantial effect
on commercehave occurred before § 3(b)(2) can be invoked
successfully. Thus, far from exceeding the commerce power, § 4(g)
provides a double assurance that RLUIPA’s reach will not exceed
Congress’s Commerce Clause authority.447

444. 42 U.S.C. § 2000cc-2(g) (2000).
445. See Johnson, 223 F.Supp.2d at 829 (RLUIPA § 4(g) is “an additional defense after
the complaining party has met its burden.”) (emphasis in original).
446. 42 U.S.C. § 2000cc-2(g) (2000).
447. To be sure, a plaintiff may not be able to establish in every case that the substantial
burden on religious exercise does affect interstate commerce. For example, a prisoner who
is not allowed to grow a beard may have difficulty in establishing how such a restriction
affects interstate commerce. But see Johnson, 223 F.Supp.2d at 829 (holding that
RLUIPA covers regulation of the free exercise of religion, an objectively interstate
activity . . . . [T]he free exercise of religion affects interstate commerce in a multitude
of ways including: use of the airwaves to advertise various religions and to seek
charitable donations for domestic and international concerns; use of the interstate
highway system for traveling choirs and missionary groups; and, use of the mail
system to buy and sell ceremonial items and religious literature.)

It is equally clear, however, that the operation of a prison involves a wide array of
commercial and economic activities and that in many cases these operations will provide
the basis for a prisoner to establish that the burden these operations place on religious
exercise do affect interstate commerce. For example, a prisoner seeking a religious diet
will easily be able to establish that denying him such a diet affects interstate commerce.
Everyday in the course of administering a prisons, a State engages in numerous
commercial transactions in order to feed thousands of prisoners. And everyday, a prisoner
seeking a religious diet requests that the State engage in a slightly different set of
commercial transactions to accommodate his request for a religious diet, and so to avoid
substantially burdening his religious exercise. Any argument that commerce is never
implicated by the avoidance of substantial burdens simply lacks merit.

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D. RLUIPA Section 3 Does Not Violate the Tenth Amendment.
The Tenth Amendment is implicated only when Congress acts
outside the scope of its enumerated powers.448 “If a power is
delegated to Congress in the Constitution, the Tenth Amendment
expressly disclaims any reservation of that power to the States.”449
Accordingly, because RLUIPA, as discussed supra, is a valid exercise
of Congress’s power under both the Spending Clause and the
Commerce Clause, the Act does not violate the Tenth Amendment.450
Nonetheless, critics of the Act have asserted that RLUIPA
impermissibly “commandeers” States by mandating that they
implement a federal regulatory regime.451 This argument fails both
factually and legally. First, it is simply incorrect as a matter of fact to
assert that RLUIPA requires the States to implement any particular
federal regulatory regime. To the contrary, RLUIPA merely requires
that States not substantially burden religious exercise but then
respects federalism by leaving to each individual State and prison
system the means of implementing that standard. Indeed, this decision
to extend to States the discretion to choose the means to alleviate a
substantial burden is expressly codified in § 5(e) of the Act.452 In this
regard, RLUIPA is similar to the Acts upheld in South Carolina v.
Baker 453 and Reno v. Condon,454 both of which created a federal
standard but did not involve the federal government conscripting state
officials to implement the standard or require the States to adopt any
particular means to implement the standard. In both of those cases,
the Court held that that “any federal regulation demands

448. See New York v. United States, 505 U.S. 144, 156 (1992).
449. Id.
450. Charles v. Verhagen, 348 F.3d 601, 609 (7th Cir. 2003) (holding that RLUIPA
does not violate the Tenth Amendment because it is a valid exercise of Congress’s
Spending power); Mayweathers v. Newland, 314 F.3d 1062, 1069 (9th Cir. 2002) (same).
451. Georgia Br. at 31–32.
452. Section 5(e), entitled “Governmental discretion in alleviating burdens on religious
exercise” and codified at 42 U.S.C. § 2000cc-3(e) (2000), provides:
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.

453. 485 U.S. 505, 513–15 (1988) (upholding a statute that prohibited States from
issuing unregistered bonds).
454. 528 U.S. 141, 143–44 (2000) (upholding the Driver’s Privacy Protection Act,
which restricted the ability of States to disclose a driver’s personal information without the
driver’s consent).

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compliance,”455 and that the mere fact that a State “must take
administrative and sometimes legislative action to comply with
federal standards regulating that activity is a commonplace that
presents no constitutional defect.”456 Under RLUIPA, “prison officials
remain free to run their prisons as they see fit. RLUIPA just prohibits
prison officials from unduly burdening inmates’ free exercise of
religion in the process.” 457
The argument that RLUIPA impermissibly commandeers the States
resources is also foreclosed as a matter of law. In New York, the Court
made clear that no commandeering occurs when the State is required
to comply with federal requirements as a condition of the State
receiving federal funds.458 The Tenth Amendment does not “‘limit
the range of conditions legitimately placed on federal grants.’”459 In
other words, “[w]hile Congress may not have authority to
commandeer the management of state prisons, it ‘does have power to
fix the terms upon which its money allotments to states shall be
disbursed.’”460 Accordingly, because RLUIPA does not require states
to administer a federal requlatory regime but merely limits certain
local government actions once they tread into federal territory,
RLUIPA does not violate the Tenth Amendment.
E. RLUIPA Section 3 Does Not Violate the Eleventh Amendment
The general rule of the Eleventh Amendment is that it divests
federal courts of subject matter jurisdiction over suits brought by
private parties against a state. However, three exceptions to this
constitutional rule exist. First, pursuant to Ex Parte Young, suits
against state officials seeking prospective equitable relief for ongoing
violations of federal law are not barred by the Eleventh
Amendment.461 Second, individuals may sue a state directly,
including for damages, if Congress has abrogated the state’s
immunity from suit through an unequivocal expression of its intent to
do so and pursuant to a valid exercise of its power.462 Third,
455. Baker, 485 U.S. at 514.
456. Condon, 528 U.S. at 151 (quoting Baker, 485 U.S. at 515).
457. Mayweathers v. Newland, 314 F.3d 1062, 1069 (9th Cir. 2003).
458. New York v. United States, 505 U.S. 144, 171–73 (rejecting a Tenth Amendment
challenge statutory conditions on federal grants).
459. Mayweathers v. Newland, 314 F.3d at 1069 (quoting South Dakota v. Dole, 483
U.S. 203, 210 (1987)).
460. Id.
461. See Ex parte Young, 209 U.S. 123, 159–60 (1908).
462. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54–56 (1996).

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individuals may sue a state directly, including for damages, where a
state has properly waived its sovereign immunity and consented to
suit in federal court. 463
Suits brought under RLUIPA for prospective injunctive relief
against state officials in their official capacity fall squarely within the
Ex parte Young exception to sovereign immunity and do not violate
the Eleventh Amendment.464 Although the argument has been made
by at least two states that Ex Parte Young should not apply because it
is a statute that “uniquely implicates special state sovereignty
interests” in the administration of prisons,465 this argument simply
proves too much. To accept that argument would be to immunize
prison officials from Ex parte Young actions not only under RLUIPA,
but under 42 U.S.C. § 1983, because § 1983 affords prisoners a vastly
broader (and, therefore, more “intrusive”) remedy against
unconstitutional action than does RLUIPA. Nor is RLUIPA
comparable to the situation presented in Idaho v. Coeur d’Alene Tribe
of Idaho466 where suit against state officials “would diminish, even
extinguish, the State’s control over a vast reach of lands and waters
long deemed by the State to be an integral part of its territory.”467
“While the management of state prisons is indeed an important state
interest, it is not tied in a unique way to sovereignty as the waters and
submerged lands were in Coeur d’Alene.”468
Whether the Eleventh Amendment bars suits brought against a state
directly (or state officials in their official capacity) for damages is a
different issue. RLUIPA does not contain any unequivocal statement
abrogating sovereign immunity as required by Seminole Tribe, so the
second of the three exceptions to the Eleventh Amendment does not
apply here. With regard to third exception, an argument can be made
that where jurisdiction is founded upon the Spending Clause, that the
State has voluntarily consented to suit for damages by accepting
federal funds.469 The fact that RLUIPA extends a cause of action to
463. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985) (“A state
may effectuate a waiver of its constitutional immunity by . . . waiving its immunity to suit
in the context of a particular federal program.”).
464. See Mayweathers v. Newland, 314 F.3d at 1070.
465. See Goodman v. Snyder, No. 00-C-0948, 2003 WL 22765047, at *2 (N.D. Ill.
Nov. 20, 2003) (describing and rejecting an Eleventh Amendment argument raised by
Illinois); Sanabria v. Brown, No. 99-4699, slip. op. at 39 (D. N.J. June 9, 2003) (same).
466. 521 U.S. 261 (1997).
467. Id. at 282.
468. Sanabria, slip op. at 39.
469. See Koslow v. Pennsylvania, 302 F.3d 161, 172 (3d Cir. 2002) (“Congress may
require a waiver of state sovereign immunity as a condition for receiving federal funds,

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“obtain appropriate relief,”470 which could include damages, lends
support to an argument that Congress intended to signal to states that
they would be on the hook for damages under RLUIPA if they accept
federal funds.471 Indeed, some courts have held that “a State waives
Eleventh Amendment immunity by accepting federal funds.”472
However, other courts have been reluctant to find that a state has
consented to damages in the absence of “a clear intent” to condition
receipt of federal funds on a state’s consent to waive its sovereign
immunity,473 and it is possible that courts may find the language
“obtain appropriate relief” too ambiguous to support a finding of a
clear intent to subject a State to suit for damages. In light of the
Supreme Court’s discussion in College Savings Bank v. Florida
Prepaid Postsecondary Education Expense Board,474 which expressly
distinguished Congress’s exercise of its power under the Commerce
Clause from its power under the Spending Clause to impose
conditions on states,475 the view that a State does waive sovereign
immunity by accepting federal funds seems to be the better view. In
any event, the Eleventh Amendment would not pose any barrier to a
suit brought against individual prison officials in their individual
capacities, since the Eleventh Amendment may only be invoked by
the State or officials sued in their official capacities.
F. RLUIPA Does Not Violate Separation of Powers Principles
Finally, opponents of RLUIPA have argued that RLUIPA violates
separation of power principles by erroneously revising a ruling of the
Supreme Court to apply strict scrutiny to burdens on prisoners’
religious exercise instead of the rational basis scrutiny that would
otherwise apply under Turner v. Safley, O’Lone v. Shabazz, and
even though Congress could not order the waiver directly.”) (quoting Jim C. v. United
States, 235 F.3d 1079, 1081 (8th Cir. 2000) (en banc)).
470. 42 U.S.C. § 2000cc-2(a) (2000).
471. See Sanabria, slip op. at 37–38 (finding state waived sovereign immunity because
“RLUIPA was validly enacted pursuant to Congress’s powers under Spending Clause and
finds that in accepting federal grants, the state of New Jersey necessarily accepted all of
the conditions Congress attached to those grants,” including the condition that a prison
may bring a claim for “appropriate relief.”).
472. Phiffer v. Columbia River Correctional Institute, 384 F.3d 791, 793 (9th Cir. 2004)
(citing Vinson v. Thomas, 288 F.3d 1145, 1151 (9th Cir. 2002)).
473. See, e.g., Barbour v. Wash. Metropolitan Area Transit Authority, 374 F.3d 1161,
1163 (D.C. Cir. 2004); Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003).
474. 527 U.S. 666 (1999).
475. Id. at 686 (“Congress may, in the exercise of its spending power, condition its
grant of funds to the States upon their taking certain actions that Congress could not
require them to take, and that acceptance of the funds entails an agreement to the
actions.”).

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Employment Div. v. Smith.476 As an initial matter, it is noteworthy
that the identical argument against application of RFRA to the federal
government and its officials has been rejected by every single court to
address the issue, both before and after RFRA was ruled
unconstitutional as applied to state government.477 The reasoning of
those courts applies equally to any separation of powers to RLUIPA:
it is well-established that Congress, so long as it acting pursuant to an
enumerated power such as the Spending or Commerce power, can use
its authority to provide stronger civil rights protections than the
constitution would provide alone.478 Thus, Congress’s decision to
provide greater protection for the religious exercise rights of prisoners
than the Constitution requires merely accepts the Supreme Court’s
repeated invitations to adopt heightened legislative protection for
religious exercise479 and does not violate separation of powers
principles.
VI. CONCLUSION
In conclusion, RLUIPA is a constitutional use of congressional
authority to remove government-imposed substantial burdens on
religious exercise.480 Moreover, RLUIPA has, at least in its first four
years, achieved more success than RFRA did in expanding the ability
of prisoners to prevail in religious exercise claims.481 This appears to
be due to the care Congress took in setting the scope of the Act to
protect any religious exercise, not just that which a court deems to be

476. See, e.g., Mayweathers v. Newland, 314 F.3d 1062, 1070 (9th Cir. 2002)
(describing the separation of powers argument raised by California).
477. See O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003) (rejecting
separation of powers challenge to RFRA and finding it applicable to prisoner’s claim
against the federal bureau of prisons); Guam v. Guerrero, 290 F.3d 1210, 1220 (9th Cir.
2002) (rejecting separation of powers challenge to RFRA); Kikumura v. Hurley, 242 F.3d
950, 959–60 (10th Cir. 2001) (same); In re Young, 141 F.3d 854, 861 (8th Cir. 1998)
(same); Jama v. United States Immigration and Naturalization Service, 2004 WL 2538275,
at *24 (D. N.J. Nov. 10, 2004) (same).
478. See Mayweathers v. Newland, 314 F.3d at 1070 (“RLUIPA does not erroneously
review or revise a specific ruling of the Supreme Court . . . . Rather, RLUIPA provides
additional protection for religious worship, respecting that Smith set only a constitutional
floor—not a ceiling—for the protection of personal liberty.”); United States v. Marengo
Cy. Comm’n, 731 F.2d 1546, 1562 (11th Cir. 1984), cert. denied, 469 U.S. 976 (1984)
(“[C]ongressional disapproval of a Supreme Court decision does not impair the power of
Congress to legislate a different result, as long as Congress had that power in the first
place.”).
479. See, e.g., Employment Div. v. Smith, 494 U.S. 872, 890 (1990).
480. See supra § IV.
481. See supra §§ II(B)(1)(b) & III(E).

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mandated by or central to the prisoner’s faith.482 The success of
prisoner claims under RLUIPA over the long-term will ultimately
depend on whether courts are willing to faithfully apply the strict
scrutiny standard that the Act’s language requires.483
Courts tempted to rule against prisoners by applying a watereddown version of strict scrutiny to prisoner claims would do well to
remember the commitment to religious liberty that motivated
RLUIPA’s passage and how RLUIPA fits into this nation’s historical
dedication to that ideal. What is most important about RLUIPA is
that it signals a humble commitment by one of the world’s most
powerful nations to use its strength not to coerce, but to protect the
conscience of the members of our society who are seemingly the least
worthy of such protection: prisoners. RLUIPA recognizes that
although it is proper for the State to punish individuals who have
violated the laws of our society by imprisoning them, the State does
not have the right to seek to bind and control the religious beliefs and
acts of conscience of those individuals. Instead, it is the role of the
State to preserve their fundamental rights to religious exercise.
RLUIPA’s protection of the religious exercise rights of prisoners is
thus an important reaffirmation of the traditional American view of
government, reflected from the very birth of the Nation in the
Declaration of Independence, that each individual is important
because God created him and endowed him with certain inalienable
rights—including the fundamental right to free exercise of religion
and conscience. The role of the State in this view is an important but
humble one. Because the source of individual rights precedes the
State and is an authority higher than the State, the State’s role is to
protect and preserve those rights. (This view, of course, is in sharp
contrast with the notion that the State is the source of all rights.
History and reason have demonstrated that rights are less secure in
this exalted view of the nature and role of the State—for if rights are a
gift of the State, the State is free to repeal these rights at will).
By protecting the right to religious freedom and conscience of
those who might be viewed as the least deserving members of our
society, Congress’s passage of RLUIPA “follows the best of our
traditions” by “respect[ing] the religious nature of our people and
accommodate[ing] the public service to their spiritual needs.”484

482. See III(E).
483. See supra § II(C)(5).
484. Zorach v. Clauson, 343 U.S. 306, 314 (1952).

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