By: R. Davis

Enacted by Congress, “RLUIPA” is the Religious Land Use and Institutionalized Persons Act. What the Rluipa protects is the free exercise of an incarcerated individual’s religious beliefs.

The Act is meant to protect incarcerated individuals because they are unable to freely attend to their own religious needs. Prisoners are dependent upon a jail or prison’s permission and accommodation for the exercise of their religion.

The RLUIPA provides protection by prohibiting a jail or prison from adopting a regulation which would impose “a Substantial Burden on the religious exercise of a person residing in or confined to an institution” unless the government can show that the burden “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering” that interest. See: 42 U.S.C. §2000cc-1(a).

RLUIPA does not define a “substantial burden,” but a Supreme Court case frames the relevant inquiry as to whether the inmate was required to “engage in conduct that seriously violates his religious beliefs.” See: Holt v. Hobbs, 135 S.Ct. 853 (2015).

Such a burden might occur after the implementation of a rule or policy restricting an incarcerated person’s ability to practice his or her religious beliefs. My post, What is the Turner test, details the four-factor test used to evaluate the legitimacy of a prison regulation which burdens a fundamental constitutional right.

The RLUIPA does not elevate a prisoner’s religious accommodation over an institution’s need to maintain security, order, safety and discipline. Nor does the Act differentiate between bona fide faiths or confer a privileged status to any particular religious belief. However, the RLUIPA does afford prisoners greater protection for religious exercise than is available under the First Amendment.

How is a RLUIPA violation analyzed?

Under the RLUIPA, a claimed violation is analyzed after a prisoner produces sufficient evidence to support a free exercise violation and establishes a regulation imposes a substantial burden on the exercise of his or her religion. Then, the prison or institution must defend the regulation by establishing a justification for the regulation and showing the imposed rule is the least restrictive that it can be to meet the institution’s needs.

Protection afforded by the Act is enforced through balancing an inmate’s religious interests with the requirement of a prison’s need to maintain good order, security and discipline, while considering the costs and limited resources associated to running a prison.

How can a prisoner prove a violation of the RLUIPA?

For a prisoner to prove a violation of the RLUIPA, the process has been referred to as a “three act play.” See: Cavin v. Mich. Dep’t of Corr., 927 F.3d 455 (6th Cir. 2019).

For the first act, a prisoner has the initial responsibility to show a policy is implicating one’s “religious exercise.” Under the RLUIPA, religious exercise is not subject to an exacting review. Congress broadly defined a “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” See: 42 U.S.C. §2000cc-5(7)(A)This means it doesn’t matter whether a prisoner practices a religion as a whole or whether or not every believer of the same faith practices the religion in the same manner.

For the second act, the prisoner must show the challenged regulation places a “substantial burden” on the practice of his or her religious belief. This means the challenged regulation must place a fairly significant restriction upon the religious exercise. When a regulation outright bans a religious exercise, it easily amounts to a significant burden. However, a regulation which threatens punishment or coerces a prisoner to forego his or her religious belief could also equate to a substantial burden.

Once a prisoner meets these first two requirements, the burden shifts to the institution to show that the regulation is: 1) in the furtherance of a compelling governmental interest  and, 2) the least restrictive means of serving that interest.

The least-restrictive-means standard is demanding. It requires the government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party.

When are prison restrictions not a RLUIPA violation?

When a prison can justify one or more restrictions are in the best interest of institutional security, a RLUIPA violation will not be found. For example, in Borzych v. Frank, 439 F.3d 388 (7th Cir. 2006), the court found a complete ban on religious texts that promote racial violence to be constitutionally permissible.

In Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599 (5th Cir. 2008), the court found that runestones and tarot cards could be used for “gambling, trafficking and trading” and thus “pose a unique security risk.”

When are prison restrictions a RLUIPA violation?

When a prisoner can show a restriction is burdensome and not the least restrictive means of furthering institutional security, a RLUIPA violation will be found. For example, in Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022), the court found that prohibiting a Muslim from possessing scented prayer oils in his cell was a substantial burden.

In Calvin v. Mich. Dep’t of Corr., 927 F.3d 455 (6th Cir. 2019), the court found that prohibiting a Wiccan inmate from observing the holiday of Esbats with other Wiccan inmates was a substantial burden with an insufficient security reasoning.

What book will help win RLUIPA type claims?

The Colossal Book of Civil Citations, by Richard Davis, is the most thorough reference book of civil subjects available. The book is designed to assist a prisoner litigant prepare a 42 U.S.C. §1983 complaint and present the claim through trial while enhancing every legal argument throughout the process.

Topics include: Clearly Established, Conditions of Confinement, Deliberate Indifference, First Amendment, Prison Medical Care, Religion, Summary Judgment and more. The Colossal Book of Civil Citations contains sample discovery motions, motions in limine to exclude criminal history and disciplinary violations, motions to appear unshackled and in civilian clothing at trial, sample jury instructions and more. Order your copy today: https://barkanresearch.com/buy-now/

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