Written by Don Byrd
On Monday, the Judiciary Committee of the U.S. Senate will begin confirmation hearings for Judge Neil Gorsuch, President Trump’s nominee to replace the late Justice Antonin Scalia on the U.S. Supreme Court. The Baptist Joint Committee has been reviewing Judge Gorsuch’s church-state record for insight into his views on religious liberty issues. One aspect of his work that may shed some light is his approach to prisoners’ lawsuits.
Like most other federal appeals court judges, Judge Gorsuch has considered a number of cases brought by prison inmates who claim that their rights, including religious liberty rights, have been violated. While these suits rarely result in substantive appeals court opinions, those that do can provide insight into a judge’s approach to religious liberty guaranties in the law.
Since 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has protected the religious exercise rights of inmates pursuant to a strict legal standard. Modeled on the Religious Freedom Restoration Act (RFRA), RLUIPA permits the state to substantially burden an inmate’s religious exercise only if it is necessary to further a “compelling governmental interest.”
In his written opinions applying RLUIPA (discussed below), Judge Gorsuch demonstrates a thoughtful understanding of the law’s intention. He has sought to protect the religious liberty rights of inmates while allowing the state to impose necessary restrictions in the interest of safety.
I. Substantial Burden
The first element of RLUIPA analysis involves determining whether government has imposed a “substantial burden” on a plaintiff’s exercise of sincerely held religious beliefs.
The sincerity of a plaintiff inmate’s religious beliefs is often assumed, but may be a subject of judicial inquiry. The definition of “religious” in this context is seldom investigated in any detail. Judge Gorsuch’s opinions in the prison context, however, indicate that he is not inclined to merely accept a plaintiff’s bare assertion that a particular exercise is religious in nature. In Ciempa v. Jones, 511 Fed. Appx. 781, 783 (10th Cir. 2013), his opinion upheld the dismissal of an inmate’s claim regarding the denial of access to a particular book because “the book was not itself a religious text.”
The precise definition of “substantial burden” remains elusive, and is the subject of ongoing scholarly debate. A 10th Circuit opinion joined by Judge Gorsuch endorsed the following definition:
…a religious exercise is substantially burdened under 42 U.S.C. § 2000cc-1(a) when a government (1) requires participation in an activity prohibited by a sincerely held religious belief, or (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief… Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010).
The Abdulhaseeb panel further clarified that “not…every infringement on a religious exercise will constitute a substantial burden.” Id. at 1316. “At a minimum the substantial burden test requires…more than an inconvenience to one’s religious practice.” Id. (quoting Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007).
While recognizing that RLUIPA’s protection extends beyond practices that are central to a religion, we do not intend to imply that every infringement on a religious exercise will constitute a substantial burden. “The practice burdened need not be central to the adherent’s belief system, but the adherent must have an honest belief that the practice is important to his free exercise of religion.” Sossamon, 560 F.3d at 332; see also Smith, 502 F.3d at 1278 (“[A]t a minimum the substantial burden test requires…more thanan inconvenience to one’s religious practice.”that a RLUIPA plaintiff demonstrate that the government’s denial of a particular religious item or observance was more than an inconvenience to one’s religious practice.”). Abdulhaseeb, 600 F.3d at 1316.
Applying the requirement that a “substantial burden” must be “demonstrated” and must be more than an “inconvenience,” Judge Gorsuch has emphasized that a plaintiff inmate’s claims under RLUIPA must suggest “how or why his religious beliefs might be burdened…” Ali v. Wingert, 569 Fed.Appx 562, 565 (10th Cir. 2015). In Ali, the plaintiff complained that requiring him to use both his religious name and his previous name on his mail was an offense to his religious beliefs. The 10th Circuit affirmed the dismissal of those complaints for failure to explain the burden on his beliefs. The opinion, written by Judge Gorsuch, cited favorably a 7th Circuit holding that, under RLUIPA, “preference or convenience is not the standard.” Mutawakkil v. Huibregtse, 735 F.3d 524, 527 (7th Cir. 2013).
At the same time, where ambiguity clouds the prisoner’s reasoning regarding the substantial burden, Judge Gorsuch notes that a prisoner representing himself “deserves the benefit of the doubt.” Abdeulhaseeb, 600 F.3s at 1324-1325 (Gorsuch, J., concurring) (reading a litigant’s complaint as properly alleging a motivating sincere religious belief despite clear interpretations that would fail to meet that threshold).
In determining “substantial burden,” Judge Gorsuch has further recognized an important difference between a “burden” on religious exercise and a “substantial burden,” which RLUIPA requires to trigger religious liberty protections. This distinction sounds subtle, but is significant for the plaintiff’s claim and the law’s integrity. It is necessary to achieve a reasonable balance between religious free exercise and the government’s regulatory interests.
In Abdulhaseeb, a unanimous panel of the 10th U.S. Circuit Court of Appeals allowed some of the plaintiff inmate’s RLUIPA claims regarding his need for a halal diet to go forward, but upheld the dismissal of some others. In his concurring opinion, Judge Gorsuch emphasized that the distinction between “burden” and “substantial burden” was central to his reasoning for supporting this bifurcated outcome:
Claim 5 asserts that ODOC failed to approve any Muslim food vendors and thus prevented Mr. Abdulhaseeb from purchasing the halal meat he allegedly required for a mandatory and significant religious holiday. This claim satisfies the standard for a triable RLUIPA claim because the jury could . . . find that the restrictions rendered Mr. Abdulhaseeb’s religious exercise — the celebration of a mandatory holiday — impossible. Claim 2, on the other hand, doesn’t meet that threshold. By alleging that ODOC sporadically placed questionable foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all of the tray’s contents inedible, Mr. Abdulhaseeb has described only a moderate impediment to — and not a constructive prohibition of — his religious exercise. It’s surely a burden to forgo an occasional meal. But it’s not a substantial burden, and RLUIPA proscribes only government actions that substantially burden religious exercise. Id. at 1325 (Gorsuch, J., concurring).
II. Compelling Interest
Once a substantial burden on an inmate’s religious exercise is demonstrated, RLUIPA turns to the state for evidence that the burden is necessary to further a compelling government interest.
One of the most significant hurdles an inmate faces in pursuing a religious liberty claim against a prison is the deference generally afforded to prison officials’ expertise in implementing policies that promote safety. To rule in favor of an inmate’s RLUIPA claim means a judge is willing to deem insufficient those officials’ arguments that such restrictions are necessary. Judge Gorsuch has exhibited that ability.
Specifically, where a plaintiff inmate has shown a substantial burden on religious exercise, Judge Gorsuch has recognized that RLUIPA requires the state to demonstrate, and not simply pronounce, that a restriction on the exercise of faith is necessary.
In Yellowbear v. Lampert , 741 F.3d 48 (10th Cir. 2014), an inmate member of the Northern Arapaho Tribe was denied access to a sweat lodge, which is important to his faith. The Wyoming Medium Correctional Institution housed a sweat lodge, but it was located in a different facility from the plaintiff’s unit. Prison officials argued that moving the prisoner to and from the lodge would require a costly lockdown and present administrative strains, but as Judge Gorsuch noted, they failed to detail those costs. That is not enough, he explains, to satisfy the state’s burden. He writes:
“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. . . . 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.” Id. at 59.
Judge Gorsuch has also emphasized that the state’s policy must avoid “underinclusiveness” – the failure to extend to practices that would seem to implicate the government’s claimed interest. In Yellowbear, Gorsuch’s opinion noted that a prison lock-down was allegedly a daily occurrence, despite officials’ claims that it would be so difficult as to preclude them from transferring an inmate to-and-from the sweat lodge from the plaintiff’s unit.
“Evidence that the prison grants secular exceptions more readily than religious exemptions to a putatively compelling policy can raise the inference . . . 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.” Id. at 60.
While the state may be able to explain such underinclusiveness, the prison in Yellowbear, he concludes, “has made no effort (of any kind) to respond to Mr. Yellowbear’s underinclusiveness evidence.” Id. at 61.
Judge Gorsuch’s RLUIPA opinions demonstrate a balanced approach to adjudicating prisoners’ claims of religious liberty violations. He has shown a willingness to reject both a plaintiff’s claim of substantial burden and a state’s claim of compelling interest where appropriate, even when that means overturning a trial court’s conclusion. This suggests fidelity to an important principle of RLUIPA’s careful balance: giving statutory terms their meaning and avoiding absolute deference to claims of religious burden or governmental interest.