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Outline by Tim Phillips, Attorney
3249 Hennepin Avenue S, Suite 216
Minneapolis, Minnesota 55408
Last updated November 27, 2012
Under the Eighth Amendment, a prison must provide an inmate with a diet that
contains adequate nutrition. ( F rench v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985), cert.
denied, 479 U.S. 817 (1986) (quoting Ra mos v. Lamm, 639 F.2d 559, 570-71 (10th
Cir.1980), cert. denied, 450 U.S. 1041 (1981).) But DVVXPLQJDGLHW¶VQXWULWLRQDO
adequacy, it is less clear under what circumstances a prison must accommodate an
LQPDWH¶VGLHtary restrictions. This outline posits an answer to that question.
I.

F irst A mendment

The First Amendment to the U.S. Constitution prohibits Congress from enacting
ODZV³UHVSHFWLQJDQHVWDEOLVKPHQWRIUHOLJLRQ>@RUSURKLELWLQJWKHIUHHH[HUFLVHWKHUHRI´
(U.S. Const., Amdt. 1.) It is now well-settled that the Amendment applies to any
government action, not merely laws of Congress. ( Glassroth v. Moore, 335 F.3d 1282,
1294 (11th Cir. 2003) (citing cases).)
A.

T wo relevant clauses of the First A mendment

F ree exercise clause: inmates retain protections afforded by the First Amendment,
including its directive that no law shall prohibit the free exercise of religion. (2¶/RQH v.
Estate of Shabazz, 482 U.S. 342, 348 (1987); Hernandez v. Commissioner, 490 U.S. 680,
699 (1989).)
Establishment clause: a government policy or practice violates the Establishment
Clause if (1) it has no secular purpose, (2) its primary effect advances or inhibits religion,
or (3) it fosters an excessive entanglement with religion. (Lemon v. Kurtzman, 403 U.S.
602, 612-13 (1971).)
B.

Essential elements of a F irst A mendment case

1.
Sincere religious belief ( Koger v. Bryan, 523 F.3d 789, 797-98 (7th Cir.
2008); Vision Church v. Village of Long Grove, 468 F.3d 975, 996-97 (7th Cir. 2006))
To receive protection from the First Amendment, a prisoner must show that his or
her request for a special diet LVURRWHGLQDVLQFHUHO\KHOGUHOLJLRXVEHOLHIQRW³SXUHOy
VHFXODU´FRQFHUQVThomas v. Review Bd. of Indiana E mployment Sec. Div., 450 U.S.
707, 713-14 (1981); Wisconsin v. Yoder , 406 U.S. 205, 215-16 (1972).)
This outline is for information purposes only. It is not legal advice. Nor is it guaranteed to be correct,
complete, or up to date. Also, your review of this outline does not make me your attorney. Nor does
sending me a letter or email. To obtain legal advice or help with a legal problem, you should contact an
attorney licensed to practice in the state where you live or where ± if applicable ± the relevant incident
occurred. Finally, despite being included in this outline, information may subsequently be edited without
any notice to indicate such revision.

For example: animal suffering. (Vinning-El v. Evans, 657 F.3d 591, 594
(7th Cir. 2011).)
Yet atheism may, in the specialized sense of applying First Amendment
protections, be considered a religion. ( Kaufman v. McCaughtry, 419 F.3d 678, 681-82
(7th Cir. 2005).)
Moreover, the First Amendment protects genuine religious dietary practices even
if thH\DUHQRWDFHQWUDOWHQHWRIWKHSULVRQHU¶VUHOLJLRQRUGRFWULQDOO\UHTXLUHG Cutter v.
Wilkinson, 544 U.S. 709, 725 (2005); E mployment Division v. Smith, 494 U.S. 872, 88687 (1990); Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699 (1989).)
&OHUJ\RSLQLRQKDVJHQHUDOO\EHHQGHHPHGLQVXIILFLHQWWRRYHUULGHDSULVRQHU¶V
sincerely held religious belief. ( Ford v. McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003);
Vinning-El v. Evans, 657 F.3d 591, 593 (7th Cir. 2011).) It is also inappropriate for a
prison official to argue with a prisoner regarding the objective truth of his or her religious
belief. (Nelson v. Miller , 570 F.3d 868, 881 (7th Cir. 2009).) %XWWKHPRUHDSULVRQHU¶V
professed belief differs from the orthodox beliefs of his or her faith, the less likely his or
her belief is to be sincerely held, at least according to one circuit. (Vinning-El v. Evans,
657 F.3d 591, 594 (7th Cir. 2011).)
2.
Religious exercise substantially burdened ( Koger v. Bryan, 523 F.3d
789, 797-98 (7th Cir. 2008); Vision Church v. Village of Long Grove, 468 F.3d 975, 99697 (7th Cir. 2006))
'HILQLWLRQRIDVXEVWDQWLDOEXUGHQDSULVRQHU¶VUHOLJLRXVGLHWDU\SUDFWLFHLV
substantially burdened when the prison forces him or her to choose between religious
practice and adequate nutrition. (Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317 (10th
Cir. 2010); Nelson v. Miller , 570 F.3d 868, 879 (7th Cir. 2009); Love v. Reed, 216 F.3d
682, 689-90 (8th Cir. 2000); McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987).)
3.
Burden is not reasonably related to a legitimate penological interest
(2¶/RQH v. Estate of Shabazz, 482 U.S. 342, 349-51 (1987); Turner v. Safley, 482 U.S.
78, 89 (1987))
Four factors relevant to this determination: (1) whether a rational connection
exists between the regulation and a neutral, legitimate government interest; (2) whether
alternative means exist for inmates to exercise the constitutional right at issue; (3) what
impact the accommodation of the right would have on inmates, prison personnel, and
allocation of prison resources; and (4) whether obvious, easy alternatives exist. (Turner
v. Safley, 482 U.S. 78, 79 (1987).)
The second factor refers to alternative means of exercising RQH¶Vreligious
This outline is for information purposes only. It is not legal advice. Nor is it guaranteed to be correct,
complete, or up to date. Also, your review of this outline does not make me your attorney. Nor does
sending me a letter or email. To obtain legal advice or help with a legal problem, you should contact an
attorney licensed to practice in the state where you live or where ± if applicable ± the relevant incident
occurred. Finally, despite being included in this outline, information may subsequently be edited without
any notice to indicate such revision.

beliefs generally, not specific to diet. ( DeHart v. Horn, 227 F.3d 47, 53-54 (3d Cir.
2000).)
With regard to the fourth factor, if an inmate can identify a specific
alternative that fully accommodates his or her rights at de minimis cost to valid
penological interests, a court may consider that as evidence that the regulation does not
satisfy the reasonable relationship standard. ( Turner v. Safley, 482 U.S. 78, 90-91
(1987).)
/HJLWLPDWHSHQRORJLFDOFRQFHUQVLQFOXGHDSULVRQ¶VLQWHUHVWLQDQHIILFLHQWIRRG
system and avoiding inmate jealousy. ( DeHart v. Horn, 227 F.3d 47, 53 (3d Cir. 2000).)
But the rule should be no greater than necessary to protect those interests; that is, it
cannot be an exaggerated response. (Turner v. Safley, 482 U.S. 78, 87 (1987); Procunier
v. Martinez, 416 U.S. 396, 413-14 (1974); Pell v. Procunier, 417 U.S. 817, 822-23
(1974).)
Evidence of the rules in other prisons is not, by itself, sufficient to cast doubt on a
SULVRQ¶VH[SODQDWLRQ. (Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009); Fowler v.
Crawford, 534 F.3d 931, 942 (8th Cir. 2008); Spratt v. Rhode Island Dept. of Corr., 482
F.3d 33, 42 (1st Cir. 2007).) This is in contrast to the cases under the Religious Land Use
and Institutionalized Persons Act.
I I.
Religious L and Use and Institutionalized Persons A ct (42 U.S. C . section
2000cc-1)
Enacted on September 22, 2000, the Religious Land Use and Institutionalized
Persons Act (RLUIPA) imposes duties on prison officials that exceed those imposed by
the First Amendment. ( Cutter v. Wilkinson, 544 U.S. 709, 714-16 (2005).)
RLUIPA applies to any inmate relLJLRXVH[HUFLVHFDVHLQZKLFK³WKHVXEVWDQWLDO
burden is imposed in a program or activity that UHFHLYHV)HGHUDOILQDQFLDODVVLVWDQFH´RU
³WKHVXEVWDQWLDOEXUGHQDIIHFWVRUUHPRYDORIWKDWVXEVWDQWLDOEXUGHQZRXOGDIIHFW
commerce with foreign nations, amoQJWKHVHYHUDOVWDWHVRUZLWK,QGLDQWULEHV´ (42
U.S.C. section 2000cc-1.)
A.

Essential elements of a R L U IPA case
1.

Sincere religious belief ( Cutter v. Wilkinson, 544 U.S. 709, 725 (2005))

$SULVRQHU¶VUHOLJLRXVEHOLHIVQHHGQRWEHEDVHGRQDPDLQVWUHDPIDLWKEXWshould
deal with issues of ultimate concern, occupying a place parallel to that filled by God in
traditionally religious people. ( F razee v. Illinois Dept. of E mployment Security, 489 U.S.
829, 834 (1989); Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005).)
This outline is for information purposes only. It is not legal advice. Nor is it guaranteed to be correct,
complete, or up to date. Also, your review of this outline does not make me your attorney. Nor does
sending me a letter or email. To obtain legal advice or help with a legal problem, you should contact an
attorney licensed to practice in the state where you live or where ± if applicable ± the relevant incident
occurred. Finally, despite being included in this outline, information may subsequently be edited without
any notice to indicate such revision.

RLUIPA bars inquiry into whether a particular belief or practice is central to a
SULVRQHU¶VUHOLJLRQ. (42 U.S.C. section 2000cc-5(7).) Instead, the belief or practice need
only be based on DSULVRQHU¶VUHOLJLRQ. (See, e.g., Dawson v. Burnett, 631 F.Supp.2d 878
(W.D. Mich. 2009).)
But RLUIPA may not be invoked to protect a way of life based on purely secular
considerations. (Wisconsin v. Yoder , 406 U.S. 205, 215 (1972).)
For example: bodily health. ( Koger v. Bryan, 523 F.3d 789, 797 (7th Cir.
2008).)
2.
Religious exercise substantially burdened (42 U.S.C. section 2000cc2(b); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008))
Definition of religious exercise: any exercise of religion, whether or not
compelled by or central to a system of religious belief. (42 U.S.C. section 2000cc5(7)(A).)
Definition of substantial burden: RLUIPA does not define this phrase, but it is
interpreted with reference to Supreme Court free exercise jurisprudence. ( Nelson v.
Miller, 570 F.3d 868, 877 (7th Cir. 2009).)
According to the Seventh Circuit, a failure to receive a diet that complies
ZLWKDSULVRQHU¶VUHOLJLRXVEHOLHIVPD\FRQVWLWXWHDVXEVWDQWLDOEXUGHQRQUHOLJLRXV
exercise under RLUIPA. ( Koger v. Bryan, 523 F.3d 789, 798 (7th Cir. 2008).)
Unlike in cases arising under the Free Exercise Clause of the First Amendment, a
burden resulting from a rule of general applicability is sufficient. ( Cutter v. Wilkinson,
544 U.S. 709, 732 (2005); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008).)
3.
Restriction does not further a compelling governmental interest by
the least restrictive means (42 U.S.C. section 2000cc-2(b); Cutter v. Wilkinson, 544
U.S. 709, 712 (2005))
Inadequately formulated prison regulations and policies grounded on mere
speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the
5/8,3$¶VUHTXLUHPHQWV&RQJ5HF6GDLO\HG-XO\MRLQW
statement of Sens. Hatch and Kennedy on RLUIPA).)
a.

Compelling governmental interest

RLUI3$VSHFLILFDOO\FRQWHPSODWHVWKDWWKHODZ³PD\UHTXLUHDJRYHUQPHQWWR
LQFXUH[SHQVHVLQLWVRZQRSHUDWLRQVWRDYRLGLPSRVLQJDVXEVWDQWLDOEXUGHQ´86&
section 2000cc-3(c)), so the fact that a special diet may be more costly is not alone a
This outline is for information purposes only. It is not legal advice. Nor is it guaranteed to be correct,
complete, or up to date. Also, your review of this outline does not make me your attorney. Nor does
sending me a letter or email. To obtain legal advice or help with a legal problem, you should contact an
attorney licensed to practice in the state where you live or where ± if applicable ± the relevant incident
occurred. Finally, despite being included in this outline, information may subsequently be edited without
any notice to indicate such revision.

compelling governmental interest. (Willis v. Commissioner, Indiana Dept. of Correction,
753 F.Supp.2d 768, 778 (S.D. Indiana 2010).)
7KHJRYHUQPHQWDOLQWHUHVWVKRXOGEHFRQVLGHUHGLQOLJKWRIWKHSULVRQHU¶VUHTXHVW
and circumstances at the detention facility. ( Koger v. Bryan, 523 F.3d 789, 800 (7th Cir.
2008).)
b.

L east restrictive means

For a state to demonstrate that its practice is the least restrictive means, it must
show that it actually considered and rejected the efficacy of less restrictive measures
before adopting the challenged practice. (Jova v. Smith, 582 F.3d 410, 416 (2d Cir.
2009); Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008).)
³>7@KHIDLOXUHRIDGHIHQGDQWWRH[SODLQZK\DQRWKHULQVWLWXWLRQZLWKWKHVDPH
compelling interests was able to accommodate the same religious practices may
FRQVWLWXWHDIDLOXUHWRHVWDEOLVKWKDWWKHGHIHQGDQWZDVXVLQJWKHOHDVWUHVWULFWLYHPHDQV´
(Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005); see also Washington v.
Klem, 497 F.3d 272, 285 (3d Cir. 2007).)

This outline is for information purposes only. It is not legal advice. Nor is it guaranteed to be correct,
complete, or up to date. Also, your review of this outline does not make me your attorney. Nor does
sending me a letter or email. To obtain legal advice or help with a legal problem, you should contact an
attorney licensed to practice in the state where you live or where ± if applicable ± the relevant incident
occurred. Finally, despite being included in this outline, information may subsequently be edited without
any notice to indicate such revision.