FILED United States Court of Appeals Tenth Circuit
January 23, 2014 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ANDREW J. YELLOWBEAR, JR.,
Plaintiff - Appellant, v. No. 12-8048
ROBERT O. LAMPERT, Director, Wyoming Department of Corrections; STEVE HARGETT, Warden, Wyoming Medium Correctional Institution, individually and in their official capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:11-CV-00346-ABJ)
Sean Connelly of Reilly Pozner LLP, Denver, Colorado, for Plaintiff-Appellant.
Melissa E. Westby, Senior Assistant Attorney General (Peter K. Michael, Attorney General, and John D. Rossetti, Deputy Attorney General, with her on the brief), Wyoming Attorney General’s Office, Cheyenne, Wyoming, for Defendants-Appellees.
Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District Judge. *
* The Honorable R. Brooke Jackson, United States District Judge for the District of Colorado, sitting by designation. GORSUCH, Circuit Judge.
Andrew Yellowbear will probably spend the rest of his life in prison. Time
he must serve for murdering his daughter. With that much lying behind and still
before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the
sincerity of his religious beliefs or that they are the reason he seeks access to his
prison’s sweat lodge — a house of prayer and meditation the prison has supplied
for those who share his Native American religious tradition. Yet the prison
refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we
have this litigation. While those convicted of crime in our society lawfully forfeit
a great many civil liberties, Congress has (repeatedly) instructed that the sincere
exercise of religion should not be among them — at least in the absence of a
compelling reason. In this record we can find no reason like that.
I
Our story starts with Smith. In Employment Division v. Smith, 494 U.S.
872 (1990), the Supreme Court held that the Constitution’s Free Exercise Clause
does not exempt religious persons from the dictates of neutral laws of general
applicability. The devout must obey the law even if doing so violates every
article of their faith. When Smith was handed down, some worried that it upset
existing free exercise doctrine dating back to Sherbert v. Verner, 374 U.S. 398
(1963). In Sherbert and its progeny the Supreme Court had suggested that no
-2- law, not even a neutral law of general applicability, may “substantially burden”
the exercise of religion unless that burden amounts to the “least restrictive means”
of achieving a “compelling governmental interest.” Smith, 494 U.S. at 883; id. at
899 (O’Connor, J., concurring in the judgment). What protections Sherbert
appeared to afford religious observances, Smith appeared ready to abandon.
Concerned with just this possibility, worried that Smith left insufficient
room in civil society for the free exercise of religion, Congress set about the
business of “restoring” Sherbert, at least as a matter of statute. It opened its
efforts with the Religious Freedom Restoration Act of 1993. See 42 U.S.C.
§ 2000bb(b)(1). Passed nearly unanimously, RFRA was (and remains) something
of a “super-statute.” Michael Stokes Paulsen, A RFRA Runs Through It:
Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995). It
instructed that all forms of governmental action — state or federal — had to
satisfy Sherbert’s test or risk nullification.
But as it turned out, this marked only the opening lines in what proved to
be a long dialogue between Congress and the Court. In City of Boerne v. Flores,
521 U.S. 507 (1997), the Court held that RFRA stretched the federal hand too far
into places reserved for the states and exceeded Congress’s Section 5 enforcement
authority under the Fourteenth Amendment. As a result, the Court held RFRA
unconstitutional as applied to the states, though still fully operational as applied
to the federal government. See id. at 529-36.
-3- Undaunted, Congress reentered the field soon enough, this time with the
Religious Land Use and Institutionalized Persons Act of 2000. In RLUIPA
Congress invoked not just its Fourteenth Amendment but also its Spending Clause
powers to (re)impose Sherbert’s balancing test on state action — though now
state action in only two specific arenas, arenas in which Congress found the
record of religious discrimination particularly clear and compelling. First, in the
land use context, where churches are sometimes disfavored by local zoning
boards because (among other things) church members are said to generate “too
much” traffic or congestion or noise when they gather for communal expressions
of faith. Second, in the prison context, where it is so easy for governmental
officials with so much power over inmates’ lives to deny capriciously one more
liberty to those who have already forfeited so many others. See Douglas Laycock
& Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39
Fordham Urb. L.J. 1021, 1021, 1025-41 (2012); Derek L. Gaubatz, RLUIPA at
Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner
Provisions, 28 Harv. J.L. & Pub. Pol’y 501, 510 & n.34 (2005). This time
Congress acted unanimously and this time the Court upheld its effort, at least
against a facial challenge under the Establishment Clause. See Cutter v.
Wilkinson, 544 U.S. 709, 725 (2005).
That takes us to the nub of our case. Mr. Yellowbear, an enrolled member
of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge
-4- to facilitate his religious exercises. The prison has refused. The prison’s sweat
lodge is located in the general prison yard and Mr. Yellowbear is housed in a
special protective unit (not because of any disciplinary infraction he has
committed, but because of threats against him). Prison officials insist that the
cost of providing the necessary security to take Mr. Yellowbear from the special
protective unit to the sweat lodge and back is “unduly burdensome.” Mr.
Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district
court discerned no statutory violation and entered summary judgment against Mr.
Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might
proceed to trial.
At the end of the day, we find that’s exactly the relief we must provide. 1
1 We speak of Mr. Yellowbear’s RLUIPA claim as against the prison for convenience’s sake. In fact, his claim is against individual prison officials, seeking prospective injunctive relief against them for violations of RLUIPA. In this way, his case is a textbook application of Ex parte Young, 209 U.S. 123 (1908). Of course, RLUIPA itself contemplates not just traditional Ex parte Young actions against individual officials but also claims directly against governmental entities. See 42 U.S.C. § 2000cc-2(a). This statutory provision and whatever sovereign immunity questions it may or may not raise are not before us. See generally Sossamon v. Texas, 131 S. Ct. 1651 (2011). We also acknowledge that, before the district court, Mr. Yellowbear pursued various other statutory claims besides his RLUIPA/Ex parte Young claim. In this court, however, Mr. Yellowbear has represented that he is prepared to abandon any other claims and forms of relief if he prevails in undoing the district court’s grant of summary judgment on his RLUIPA claim and is permitted to proceed with his effort to secure prospective injunctive relief under Ex parte Young. Because that’s the relief we find we must supply, all else is waived.
-5- II
RLUIPA may be a “super statute,” capable of mowing down inconsistent
laws, but to win its application takes no small effort. A plaintiff must carry at
least two burdens, and even then can still lose if the government bears two
burdens of its own.
Take the plaintiff’s burdens first. RLUIPA requires us to ask whether an
inmate’s (1) religious exercise is (2) substantially burdened by prison policy. 42
U.S.C. § 2000cc-1(a). At the outset, then, RLUIPA requires the plaintiff to show
a religious exercise. The law does not protect from governmental intrusion every
act born of personal conscience or philosophical conviction. It protects only
those motivated by religious faith — in recognition, no doubt, of the unique role
religion, its free exercise, and its tolerance have played in the nation’s history.
See Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972); Frazee v. Ill. Dep’t of
Emp’t Sec., 489 U.S. 829, 833-35 (1989); United States v. Meyers, 95 F.3d 1475,
1482-84 (10th Cir. 1996); Michael W. McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488-1500
(1990).
Of course, trying to separate the sacred from the secular can be a tricky
business — perhaps especially for a civil court whose warrant does not extend to
matters divine. But at least one feature of the statute’s “religiosity” requirement
often proves relatively unintrusive in its application and not infrequently
-6- dispositive: the question of sincere belief. RLUIPA does not offer refuge to
canny operators who seek through subterfuge to avoid laws they’d prefer to
ignore. Like those who set up “churches” as cover for illegal drug distribution
operations. Or those who, facing the difficult realities of prison life, are tempted
to seek special dispensations through fraudulent assertions of faith. But in
suggesting we may ask whether a claimant truly holds a religious belief isn’t to
suggest we may decide whether the claimant’s religious belief is true. After all,
“Faith means belief in something concerning which doubt is still theoretically
possible.” William James, The Will To Believe 90 (1897). And even if it were
otherwise, federal judges are hardly fit arbiters of the world’s religions. When
inquiring into a claimant’s sincerity, then, our task is instead a more modest one,
limited to asking whether the claimant is (in essence) seeking to perpetrate a
fraud on the court — whether he actually holds the beliefs he claims to hold — a
comparatively familiar task for secular courts that are regularly called on to make
credibility assessments — and an important task, too, for ensuring the integrity of
any judicial proceeding. See, e.g., United States v. Quaintance, 608 F.3d 717,
720-23 (10th Cir. 2010); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312-14 (10th
Cir. 2010); United States v. Seeger, 380 U.S. 163, 184-85 (1965); Cutter, 544
U.S. at 725 n.13; Donald A. Giannella, Religious Liberty, Nonestablishment, and
Doctrinal Development. Part I. The Religious Liberty Guarantee, 80 Harv. L.
Rev. 1381, 1417-18 (1967).
-7- While a RLUIPA plaintiff must show a sincerely held religious belief, the
statute protects considerably more than the right to hold that belief in private.
RLUIPA protects religious exercises. And as the Supreme Court explained in
Smith, “the ‘exercise of religion’ often involves not only belief and profession but
the performance of (or abstention from) physical acts: assembling with others for
a worship service, participating in sacramental use of bread and wine,
proselytizing, abstaining from certain foods or certain modes of transportation.”
494 U.S. at 877. Neither must the religious claimant prove that the exercise at
issue is somehow “central” or “fundamental” to or “compelled” by his faith. Just
as civil courts lack any warrant to decide the truth of a religion, in RLUIPA
Congress made plain that we also lack any license to decide the relative value of a
particular exercise to a religion. That job would risk in the attempt not only many
mistakes — given our lack of any comparative expertise when it comes to
religious teachings, perhaps especially the teachings of less familiar religions —
but also favoritism for religions found to possess a greater number of “central”
and “compelled” tenets. To avoid traps like these, Congress has directed courts to
protect “any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis added).
Under this standard, it isn’t for judges to decide whether a claimant who seeks to
pursue a particular religious exercise has “correctly perceived the commands of
[his] faith” or to become “arbiters of scriptural interpretation.” Thomas v. Review
-8- Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981). Even if others of the same
faith may consider the exercise at issue unnecessary or less valuable than the
claimant, even if some may find it illogical, that doesn’t take it outside the law’s
protection. Instead, RLUIPA protects any exercise of a sincerely held religious
belief. When a sincere religious claimant draws a line ruling in or out a particular
religious exercise, “it is not for us to say that the line he drew was an
unreasonable one.” Id.; see also Abdulhaseeb, 600 F.3d at 1314; Steven C.
Seeger, Note, Restoring Rights to Rites: The Religious Motivation Test and the
Religious Freedom Restoration Act, 95 Mich. L. Rev. 1472, 1503-04 (1997).
Separate and apart from showing a sincerely motivated “religious exercise,”
a RLUIPA plaintiff must also demonstrate the government has imposed a
“substantial burden” on that exercise. 42 U.S.C. § 2000cc-1(a). Once again, the
inquiry here isn’t into the merit of the plaintiff’s religious beliefs or the relative
importance of the religious exercise: we can’t interpret his religion for him.
Instead, the inquiry focuses only on the coercive impact of the government’s
actions. In tort law, we take plaintiffs as we find them, assessing the extent of
damage done based on each plaintiff’s particular attributes and circumstances.
Here, we take religious claimants as we find them, assessing the coercive impact
the government’s actions on the individual claimant’s ability to engage in a
religious exercise, as he understands that exercise and the terms of his faith. This
court has explained that a burden on a religious exercise rises to the level of being
-9- “substantial” when (at the very least) the government (1) requires the plaintiff to
participate in an activity prohibited by a sincerely held religious belief, (2)
prevents the plaintiff from participating in an activity motivated by a sincerely
held religious belief, or (3) places considerable pressure on the plaintiff to violate
a sincerely held religious belief — for example, by presenting an illusory or
Hobson’s choice where the only realistically possible course of action available to
the plaintiff trenches on sincere religious exercise. Abdulhaseeb, 600 F.3d at
1315; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450
(1988); Thomas, 450 U.S. at 716-18.
As the first two of these categories demonstrate, state laws or practices that
require action or inaction in violation of a sincerely held religious belief amount
to “substantial” burdens on the exercise of religion. As the third category shows,
a burden can be “substantial” even if it does not compel or order the claimant to
betray a sincerely held religious belief. It is enough that the claimant is presented
with a choice in which he faces considerable pressure to abandon the religious
exercise at issue. The term “substantial,” after all, doesn’t mean complete or
total, so a “substantial burden” need not be a complete or total one. See, e.g., 17
The Oxford English Dictionary 67 (2d ed. 1989) (substantial suggests an “ample
or considerable amount”); see also Thomas, 450 U.S. at 718. Take, for example,
the case of the prison that fails to provide Jewish or Muslim inmates with food
that satisfies their religious dietary restrictions. The prison may not formally
- 10 - require prisoners to violate their religious convictions — after all, the prison
might say, there is no rule compelling prisoners to eat the food it provides,
prisoners can purchase and supply their own — but surely the choice as presented
remains a heavily freighted one. Abdulhaseeb, 600 F.3d at 1316-17; see also id.
at 1325 (Gorsuch, J., concurring). Neither must the choice the government
presents be so coercive as that to qualify as a substantial burden. Creating a
situation that forces the religious claimant to choose between following the
dictates of his faith and winning an important benefit or forgoing a considerable
penalty is coercion enough. Thomas, 450 U.S. at 717-18 (“important benefit”);
Lyng, 485 U.S. at 450 (“indirect” penalties and fines); see also Sherbert, 374 U.S.
at 404; Abdulhaseeb, 600 F.3d at 1315-16.
In this case, it doesn’t take much work to see that Mr. Yellowbear has
satisfied his obligations under both the sincere religious exercise and the
substantial burden tests. After all, at the summary judgment stage — where we
find ourselves, procedurally speaking in this case — Mr. Yellowbear is obliged to
show merely that a reasonable fact finder could rule his way when viewing the
evidence in the record in the light most favorable to him. And no one in this case
even tries to question that Mr. Yellowbear’s Northern Arapaho faith constitutes a
religion. No one disputes Mr. Yellowbear’s faith is sincerely held. No one
questions either that access to a sweat lodge is a form of religious exercise for
Mr. Yellowbear, or indeed for many who share his faith tradition. As Mr.
- 11 - Yellowbear has explained, it is his religious belief that a sweat lodge “is used to
cleanse and purify our mind, our spirit, and our bodies . . . upon leaving it is said
that you are born again physically and spiritually.” This court and others have
long recognized that sweat lodges play just this role in many Native American
religions — before RLUIPA did away with the inquiry we even held that the use
of sweat lodges is “central and fundamental” to those faith traditions. Werner v.
McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (collecting cases). 2
Neither do we doubt a reasonable finder of fact could conclude the prison
has substantially burdened Mr. Yellowbear’s religious exercise. As Mr.
Yellowbear understands his faith, it requires at least some access to a sweat lodge.
The prison refuses any access. This isn’t a situation where the claimant is left
with some degree of choice in the matter and we have to inquire into the degree
of the government’s coercive influence on that choice. The prison’s policy here
falls easily within Abdulhaseeb’s second category — flatly prohibiting Mr.
2 The federal Bureau of Prisons has likewise stated that “the purification ceremony of the Sweat Lodge” is “a cornerstone” of Native American religious traditions. Fed. Bureau of Prisons, Dep’t of Justice, Inmate Religious Beliefs and Practices: Native American 14 (Mar. 27, 2002). For more about the spiritual (and secular) purposes sweat lodges serve, see Joseph Bruchac, The Native American Sweat Lodge: History and Legends (1993); Arlene Hirschfelder & Paulette Molin, The Encyclopedia of Native American Religions 287-88 (1992); and Louis M. Holscher, Sweat Lodges and Headbands: An Introduction to the Rights of Native American Prisoners, 18 New Eng. J. on Crim & Civ. Confinement 33 (1992).
- 12 - Yellowbear from participating in an activity motivated by a sincerely held
religious belief.
III
Though Mr. Yellowbear has met his summary judgment burden, that isn’t
enough to guarantee him victory. Instead, the burden of persuasion now shifts to
the government. If it can show that the burden it has imposed on Mr. Yellowbear
serves a “compelling governmental interest” and “is the least restrictive means”
of furthering that interest, it can prevail yet. 42 U.S.C. § 2000cc-1(a). At
summary judgment, of course, the government must satisfy this test when the
facts in the record are viewed in the light most favorable to Mr. Yellowbear, as
the non-movant. Abdulhaseeb, 600 F.3d at 1311. The district court held that the
prison had succeeded in doing just this, but it is our duty to decide the question
again de novo, and we find ourselves compelled to disagree. Id. While RLUIPA
anticipates that its solicitude for religious exercise must sometimes yield to other
competing state interests, the prison hasn’t yet shown our case qualifies.
Perhaps the most important question we confront in the compelling interest
inquiry concerns the level of generality at which our analysis should proceed.
When a prison declines to accommodate a religious exercise, citing security and
cost concerns (as the prison does here), should we assess the “compellingness” of
those interests in the abstract? Or should we assess the “compellingness” of those
- 13 - interests (say) only as they appear in light of the particular circumstances of the
case before us?
The more abstract the level of inquiry, often the better the governmental
interest will look. At some great height, after all, almost any state action might
be said to touch on “one or another of the fundamental concerns of government:
public health and safety, public peace and order, defense, revenue,” and
measuring a highly particularized and individual interest “directly against one of
these rarified values inevitably makes the individual interest appear the less
significant.” J. Morris Clark, Guidelines for the Free Exercise Clause, 83 Harv.
L. Rev. 327, 330-31 (1969); see also Michael W. McConnell & Richard A.
Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L.
Rev. 1, 53 (1989) (“[A] common pitfall [in religious liberty cases] is to consider
the two sides of the balance at different levels of generality.”); Richard H. Fallon,
Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1323-25 (2007).
The text of RLUIPA and Supreme Court guidance, however, do not support
such a lopsided inquiry. The statute says the government must prove the
“compellingness” of its interest in the context of “the burden on that person” —
suggesting an inquiry that proceeds in light of the particular burden the
government has placed on the particular claimant before us. 42 U.S.C. § 2000cc-
1(a) (emphasis added). The Supreme Court has confirmed this understanding,
explaining that virtually identical statutory language in RFRA requires courts to
- 14 - “look[] beyond broadly formulated interests” and “scrutinize[] the asserted harm
of granting specific exemptions to particular religious claimants.” Gonzales v. O
Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 431 (2006). Put
simply, we must examine both sides of the ledger on the same case-specific level
of generality: asking whether the government’s particular interest in burdening
this plaintiff’s particular religious exercise is justified in light of the record in this
case. Id.; see also O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
389 F.3d 973, 1019 (10th Cir. 2004) (McConnell, J., concurring), aff’d sub nom.
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418
(2006).
So with that guidance in mind, what’s the prison’s compelling interest at
play in this case? We see three possibilities.
A
The prison begins by suggesting that it cannot provide any access to a
sweat lodge because sweat lodges involve the use of hot coals and fire and are in
this way inherently unsafe for use in a prison environment (or at least they cannot
be made safe at a feasible cost). By way of support, the prison points to cases in
which other penitentiaries have refused to build or provide access to sweat lodges
and other courts have upheld those decisions over religious liberty objections.
See, e.g., Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008); Allen v. Toombs, 827
F.2d 563 (9th Cir. 1987).
- 15 - But we’ve just witnessed one difficulty with this line of argument. It is our
statutory duty to decide whether the prison’s claimed safety and cost interests
qualify as compelling in the context of particular cases, not in the abstract. Just
because other prisons may have had a compelling interest in denying access to a
sweat lodge in other circumstances doesn’t necessarily prove, without more, that
all prisons have a compelling interest in denying access to sweat lodges in all
circumstances. Certainly, the prison hasn’t given us any reason to think that
conclusion follows here. Neither do the cases it cites: they hold only and more
prosaically that the particular access sought by the particular claimants in each
dispute was not feasible on the particular set of facts at issue.
A second and separate difficulty also comes quickly clear. Our prison has a
sweat lodge. Before this appeal, the prison expressed no dissatisfaction with its
operation. In all the summary judgment record amassed in the district court, we
can find not a clue suggesting a hint of trouble. As we will see later, the prison
even considered building a second sweat lodge in the protective custody unit,
ultimately rejecting it for reasons having nothing to do with the expected safety of
its operation. Put plainly, the argument advanced by the prison’s lawyers on
appeal about the “inherent dangers” of sweat lodges finds precisely no support in
the evidence given by the prison’s officials in district court. And such factually
unsupported “post-hoc rationalizations” aren’t the stuff of summary judgment
- 16 - victories in RLUIPA cases (or in most any other). Abdulhaseeb, 600 F.3d at
1318.
While saying this much, it’s perhaps just as important to observe what we
are not saying. We don’t take any issue with the cases the prison cites rejecting
RLUIPA challenges to sweat lodge access. Other prisons very well may have
compelling reasons to refuse to build sweat lodges given their particular resource
limitations and safety challenges. Neither do we mean to suggest that just
because a prison chooses to open a sweat lodge for some prisoners it must forever
maintain the lodge or provide unfettered access to it. Surely the granting of a
religious accommodation to some in the past doesn’t bind the government to
provide that accommodation to all in the future, especially if experience teaches
the accommodation brings with it genuine safety problems that can’t be addressed
at a reasonable price. If the rule were otherwise, it would only invite the
unwelcome side effect of discouraging prison officials from granting the
accommodation in the first place — a result directly at odds with RLUIPA’s
stated purpose. Instead, we mean to suggest here only that the appropriate level
of generality requires us to assess the government’s compelling interest assertions
in light of each case as it comes — and that the summary judgment record in this
case lacks any evidence suggesting that the current operation of this prison’s
sweat lodge is in any way problematic.
B
- 17 - Retreating to the argument it did pursue in the district court, the prison
argues that its ban on Mr. Yellowbear’s access to the sweat lodge is warranted
because moving him back and forth between the protective custody unit and the
sweat lodge would require officials to “lock[] down a significant portion of the
facility” to ensure Mr. Yellowbear isn’t placed in “contact with other non-
protective custody inmates” who might seek to do him harm. And this ferrying
business, the prison says, has cost and administrative implications. Of course,
cost and administrative considerations are often intertwined and they certainly are
here. This isn’t (again) a case in which the prison has evidence suggesting an
inability to provide adequate security at any price. In the prison’s view, a lock
down can supply an acceptable level of security — but only at some marginal cost
it considers too high.
Two problems, it seems to us, arise here, preventing us from saying that the
government has carried its summary judgment burden of establishing a
compelling interest as a matter of law.
In the first place, the prison does not even attempt to quantify the costs it
faces, let alone try to explain how these costs impinge on prison budgets or
administration. Instead, the prison simply asserts, flatly and without more, that
the marginal costs are “unduly burdensome.” But conclusory legalese (borrowed
from far-flung substantive due process doctrine, no less) does no more to prove a
compelling interest than post-hoc rationalizations unsupported by record
- 18 - evidence. RLUIPA’s compelling interest test is a strict one: Congress borrowed
its language from First Amendment cases applying perhaps the strictest form of
judicial scrutiny known to American law. That test isn’t traditionally the sort of
thing that can be satisfied by the government’s bare say-so. See, e.g., City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 500-01 (1989).
To be sure, the Supreme Court has suggested that RLUIPA’s “compelling
governmental interest” test holds an unusual twist in the prison context. Though
RLUIPA uses the same linguistic formulation for prison and land use cases,
though it uses the same language found in RFRA, the Court has told us that
“context matters.” Cutter, 544 U.S. at 723 (internal quotation marks and brackets
omitted). So while courts do not usually afford much deference to the
government when assessing whether its claimed interest is a “compelling” one in
RFRA or even land use cases arising under RLUIPA, see, e.g., O Centro, 546
U.S. at 432-33, in the prison context the Supreme Court has instructed us to apply
“due deference to the experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain . . . security . . .
consistent with consideration of costs and limited resources,” Cutter, 544 U.S. at
723. How all this fits together raises some interesting questions. See, e.g., Marci
A. Hamilton, The Establishment Clause During the 2004 Term: Big Cases, Little
Movement, 2004-2005 Cato Sup. Ct. Rev. 159, 169 (wondering whether Cutter
- 19 - seeks to reestablish “the low-level scrutiny” the Court applied to prison cases
before RLUIPA).
But this much is clear and clearly enough for our purposes: the deference
this court must extend to the experience and expertise of prison administrators
does not extend so far that prison officials may declare a compelling
governmental interest by fiat. At summary judgment, the government must do
more than assert an “undue burden” or a “compelling interest.” When weighing
the existence of a compelling interest, the deference due prison administrators
may be enough to nudge a questionable case across the line, but it doesn’t mean
prison officials get to recognize compelling interests on their own. If that were
the case, RLUIPA’s supposedly strict judicial scrutiny would become no judicial
scrutiny at all. See Werner, 49 F.3d at 1480 (“[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.” (internal quotation marks omitted)); Koger v. Bryan, 523 F.3d
789, 800 (7th Cir. 2008) (“We can only give deference to the positions of prison
officials as required by Cutter . . . when the officials have set forth those
positions and entered them into the record.”); Spratt v. R.I. Dep’t of Corr., 482
F.3d 33, 40 (1st Cir. 2007) (“[T]o prevail on summary judgment, [a prison] ‘must
do more than merely assert a security concern.’” (quoting Murphy v. Mo. Dep’t of
Corr., 372 F.3d 979, 988 (8th Cir. 2004))); Shakur v. Schriro, 514 F.3d 878, 890
- 20 - (9th Cir. 2008) (denying summary judgment because the record “contains no
competent evidence as to the additional cost of providing Halal or kosher meat to
. . . Muslim prisoners”).
Neither is this the end to the problems confronting the government’s lock
down rationale. It faces at least one more. Mr. Yellowbear has attested that
prison-wide lock downs already occur on a daily and sometimes hourly basis to
transport “specially housed” inmates — inmates in the geriatric unit, the women’s
unit, and (like himself) the protective custody unit — to other parts of the prison,
including the medical wing. Mr. Yellowbear has presented affidavits, as well,
from other inmates stating much the same thing. All of these uncontested
statements we must take as true at summary judgment. And they can’t help but
suggest this question: If lock downs can be accomplished on a daily basis
consistent with the prison’s administrative concerns to facilitate inmates’ medical
needs, what compelling interest is served by refusing any lock downs ever to
facilitate an inmate’s religious needs? Put differently, why is this religious
exemption offensive to the prison’s putatively compelling no-lock-down interest
when other secular exemptions are not?
A law’s underinclusiveness — its failure to cover significant tracts of
conduct implicating the law’s animating and putatively compelling interest — can
raise with it the inference that the government’s claimed interest isn’t actually so
compelling after all. As the Supreme Court has said, it’s sometimes hard to see
- 21 - how a law or regulation can “be regarded as protecting an interest of the highest
order,” as serving a compelling interest, “when it leaves appreciable damage to
[the] supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal quotation marks
omitted); see also O Centro, 546 U.S. at 433; United States v. Friday, 525 F.3d
938, 958 (10th Cir. 2008); Fallon, supra, at 1327; Eugene Volokh, Freedom of
Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L.
Rev. 2417, 2420 (1996) (explaining how in the free speech context a “law’s
underinclusiveness . . . may be evidence that an interest is not compelling,
because it suggests that the government itself doesn’t see the interest as
compelling enough to justify a broader statute”). Evidence that the prison grants
secular exceptions more readily than religious exemptions to a putatively
compelling policy can raise the inference, too, that its most compelling interest
may actually be discrimination against, or at least indifference to, the religious
liberties of incarcerated persons — precisely the scenario RLUIPA identified as
too prevalent in our society and sought to redress. See, e.g., Lukumi, 508 U.S. at
537-38; Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359, 365 (3d Cir. 1999); Fallon, supra, at 1327; Volokh, supra, at 2423
(“Underinclusiveness might suggest . . . that the government’s real interest wasn’t
the stated one but was rather just a desire to favor one form of speech over
another, or to suppress offensive or otherwise disfavored speech.”).
- 22 - At the same time, it is important to acknowledge that inferences like these
are not inevitable or irrebuttable. We know that few statutes pursue a single
purpose at any cost, without reference to competing interests. See Genova v.
Banner Health, 734 F.3d 1095, 1099 (10th Cir. 2013); John F. Manning, What
Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 74-75 (2006).
Given this, it would be odd if the mere fact that a law contains some secular
exceptions always sufficed to prove the government lacked a compelling interest
in avoiding another exception to accommodate a claimant’s religious exercise. If
that were the case, the compelling interest test would seem nearly impossible to
satisfy and RLUIPA’s suggestion that religious accommodations must sometimes
give way to other competing governmental interests would appear close to a dead
letter.
When exactly is (and isn’t) underinclusiveness enough to undermine the
credibility of a claimed compelling interest? That question takes us into territory
not yet fully charted, but at least this much we can say with confidence. A
government can rebut an argument from underinclusion by showing that it hasn’t
acted in a logically inconsistent way — by (say) identifying a qualitative or
quantitative difference between the particular religious exemption requested and
other secular exceptions already tolerated, and then explaining how such
differential treatment furthers some distinct compelling governmental concern.
- 23 - Take an example. This court has said that the government’s “supposedly
vital interest” in preventing eagle deaths isn’t undermined simply because the
government has restricted intentional eagle killings more than accidental ones.
Friday, 525 F.3d at 958-59. After all, trying to avoid accidental eagle deaths
from electrocution by the power lines that crisscross the West is enormously more
difficult than deciding to cancel a hunting expedition. Id. at 959. And surely the
government has a compelling interest in not subjecting citizens to laws they can’t
realistically avoid breaking. So it is that in these circumstances, we have
explained, a law’s underinclusiveness might bespeak neither a shaky commitment
to the asserted compelling interest nor any discriminatory intent. See id.; see also
Fegans v. Norris, 537 F.3d 897, 906-07 & n.4 (8th Cir. 2008); Republican Party
of Minn. v. White, 416 F.3d 738, 778 (8th Cir. 2005).
Problem is, in this case the prison has made no effort (of any kind) to
respond to Mr. Yellowbear’s underinclusiveness evidence. Mr. Yellowbear’s
evidence about the regularity of secular lock downs dangles out there unanswered,
inviting a reasonable fact finder to infer that the prison’s desire to avoid lock
downs isn’t really as compelling as it insists, and that the prison may even harbor
some animus or at least indifference to his religious exercise. To be sure, we can
imagine responses the prison could have attempted that would have done much to
address Mr. Yellowbear’s underinclusiveness argument. What if, for example, the
prison’s resources are already stretched thin by lock downs for prisoners’ medical
- 24 - needs, and the marginal cost of any further lock down would be the proverbial
straw, overwhelming the prison’s resources? What if not all lock downs are
created equal, and those needed to facilitate sweat lodge access (say) require
considerably more personnel for longer periods than lock downs needed to
facilitate medical treatment? Maybe evidence along these or other directions
could have mitigated or undermined the sort of inferences that arise from Mr.
Yellowbear’s underinclusiveness argument. But in this case we have none of that.
C
In a final effort to establish a compelling governmental interest, the prison
aims in a different direction still. Even if it can easily accommodate Mr.
Yellowbear, the prison insists that granting his request will lead other specially
housed inmates to flood it with similar requests. As the prison puts it, Mr.
Yellowbear’s request “would be just the tip of the iceberg.” And avoiding a
slippery slope down to submerged troubles just out of present view, the prison
suggests, amounts to a compelling interest all its own.
Again, however, the prison gives us too little to work with. It identifies
nothing in the summary judgment record suggesting that there are untold numbers
of specially housed prisoners lined up waiting to join Mr. Yellowbear. Or that
accommodating them would stretch prison resources too far. Describing (and
rejecting) a similarly speculative slippery slope argument in the RFRA context,
the Supreme Court said that the claim “echoe[d] the classic rejoinder of
- 25 - bureaucrats throughout history: If I make an exception for you, I’ll have to make
one for everybody, so no exceptions.” O Centro, 546 U.S. at 436. The whole
point of RFRA and RLUIPA is to make exceptions for those sincerely seeking to
exercise religion. Id. (“RFRA operates by mandating consideration, under the
compelling interest test, of exceptions to rules of general applicability.” (internal
quotation marks and brackets omitted)). It can’t be the case that the speculative
possibility that one exception conceivably might lead to others is always reason
enough to reject a request for the first exception. Instead, the Court tells us, the
feasibility of requested exceptions usually should be assessed on a “case-by-case”
basis, taking each request as it comes: accommodations to avoid substantial
burdens must be made until and unless they impinge on a demonstrated
compelling interest. Id. The Court has recognized the possibility that there may
be cases where that approach is inappropriate and the “need for uniformity
precludes the recognition” of any exceptions to anyone, or where a well-
documented slippery slope argument could support such a uniform rule. Id. But
one thing is certain. To warrant any of that, the law requires considerably more
than milquetoast musing that granting one request might lead to others.
IV
It turns out the prison has failed to carry not just one of its statutory
burdens in this case, but both. Even assuming (without granting) that the prison
could prove a compelling interest in denying Mr. Yellowbear any access to the
- 26 - sweat lodge (say, some amalgam of cost and security concerns), RLUIPA would
still require it to show that its policy of no access, ever, represents the least
restrictive means of accomplishing that interest. And here the prison falls short.
As part of its burden to show that its policy represents the least restrictive
means available to further its putatively compelling interest, the government must
of course “refute . . . alternative schemes” suggested by the plaintiff to achieve
that same interest and show why they are inadequate. United States v. Wilgus,
638 F.3d 1274, 1289 (10th Cir. 2011). For his part, Mr. Yellowbear has offered
(at least) two less restrictive alternatives that, he says, should satisfy the prison’s
related cost and security concerns. First, Mr. Yellowbear has presented an
affidavit suggesting officials could avoid the need for any lock down at all by
holding sweat lodge ceremonies early in the day, before the main yard (where the
sweat lodge stands) opens to general population inmates. Second, he has
suggested that the prison might build a second sweat lodge in the protective
custody unit. Both alternatives, he argues, would allow the government to
achieve its interest in avoiding any additional lock downs while facilitating his
religious exercise.
For its part, the prison offers no meaningful reply to the first alternative.
In some places, the prison’s brief seems to suggest that it considered the idea and
rejected it — and that this, by itself, is enough to discharge any burden under the
least restrictive means test. But the government’s burden here isn’t to mull the
- 27 - claimant’s proposed alternatives, it is to demonstrate the claimant’s alternatives
are ineffective to achieve the government’s stated goals. In other places, the
prison’s brief takes a different tack, asking us to make much of the fact that the
prison offered other alternatives to Mr. Yellowbear that he rejected (like a
transfer to an out-of-state prison, away from friends and family). But this isn’t
sufficient either to discharge the government’s burden. In fact, it is logically
irrelevant: the claimant’s rejection of alternatives the government offers doesn’t
address the question whether his suggested alternatives suffice to achieve the
government’s asserted compelling interest. Cf. Arthur Ernest Davies, A
Text-Book of Logic 573 (1915) (“In order to refute an assertion, Aristotle says we
must prove its contradictory; the proof, consequently, of a proposition which
stood in any other relation than that to the original, would be an ignoratio
elenchi.”). 3
As to Mr. Yellowbear’s second proposed alternative (building a new sweat
lodge in the protective custody unit), the prison has presented no evidence that
the building or maintenance costs would be prohibitive or that the operations
3 While this offer might bear some rational relationship to the substantial burden test (on the theory that the prison isn’t actually preventing Mr. Yellowbear from using a sweat lodge), the prison never made this argument and so we decline to pass on it. Besides, the prison’s offer would just move the substantial burden inquiry from Abdulhaseeb’s second category into its third — raising the question whether it is a “substantial burden” to force a claimant to choose between a religious exercise and accepting a transfer to a prison out of state, away from friends and family. See 600 F.3d at 1315.
- 28 - would be unsafe (quite at odds, again, with its lawyers’ assertions about the
inherent safety problems of sweat lodges). Instead, the prison argues that the
only viable site in the protective custody unit would be so close to the general
prison yard that Mr. Yellowbear and others would be seen by general population
inmates as they enter and exit the lodge. And this, the prison contends, implicates
another and new putatively compelling interest — this one in preventing Mr.
Yellowbear from being seen by general population inmates because they may
attempt to attack him if they can identify him.
With the introduction of a new and different claimed compelling interest, it
seems we must return to the compelling interest inquiry we’ve already discussed,
see supra pp. 13-26, to see how it holds up. In doing so, we quickly confront
reason to question it: Mr. Yellowbear and other prisoners have attested, again
without reply from the prison, that he and the other protective custody inmates are
routinely seen by general population inmates at meal times. So the prison policy
is underinclusive in yet another significant and potentially relevant way — the
prison allows an exception for meals but not for religious exercises. And this
raises by now familiar questions: Do prison officials really have a compelling
interest in preventing Mr. Yellowbear from being seen by other inmates slightly
more frequently than he already is? Is there any relevant difference between the
exception for meal times and the exception Mr. Yellowbear has requested? Once
again, the prison fails to provide any evidence or argument in response to these
- 29 - questions, leaving us at a loss to see how it could meet its compelling interest
burden as a matter of law. Besides, Mr. Yellowbear has presented evidence that
any anonymity interests the prison might have could be resolved less restrictively
by holding the ceremonies in a protective custody unit sweat lodge on weekends,
when general population prisoners (he says, again without dispute) won’t be
around to observe those who enter or leave the lodge — a potential less restrictive
means the prison has (again) failed to refute.
V
So far the parties have contended at the level of absolutes. Mr. Yellowbear
has sought some access to a sweat lodge. The prison has refused any access. But
what happens if (or when) the discussion turns to questions of degree? What
happens if the marginal burden on Mr. Yellowbear’s religious exercise becomes
much less significant — the prison allows him periodic access, say, but not as
often as his faith suggests — and the marginal cost to the prison much greater —
because ever more visits mean ever more expense? Surely the relative strength of
the two parties’ interests would appear quite different in that new light. Surely as
well RLUIPA must account for that. Even accepting that the imposition on Mr.
Yellowbear in this scenario might still qualify as a “substantial burden” (the
government’s policy would still prohibit that which his faith compels), the change
in the relative strength of the parties’ positions would reveal itself at later stages
in the doctrinal analysis, with the government’s interests now arguably appearing
- 30 - more “compelling” and its policies more “narrowly tailored.” For now, however,
these subtler (and admittedly more difficult) questions remain for the parties and
district court to consider on remand. As litigated to us, the burden on Mr.
Yellowbear’s religious exercise is high (no access of any kind, ever, to a religious
exercise) and the cost to the prison left undefined by the record and thus
presumably low. In these circumstances, we don’t doubt a reasonable trier of fact
could find a RLUIPA violation.
The district court’s grant of summary judgment on Mr. Yellowbear’s
RLUIPA claim seeking prospective injunctive relief under Ex parte Young is
vacated and this case is remanded for further proceedings consistent with this
opinion.
- 31 -