By Kristina Doan Gruenberg of Burke, Williams, Sorensen LLP

Stephen Cavanaugh, an inmate incarcerated by the Nebraska Department of Corrections, filed a civil rights lawsuit alleging that prison staff repeatedly discriminated against him by not allowing him to meet for worship services and classes, or to wear religious clothing and pendants. Cavanaugh says that he is a “Pastafarian.” According to the church’s website, Pastafarians believe that the Flying Spaghetti Monster created the world and pirates were its initial followers. They are also known to wear cooking colanders on their heads.

Prison officials denied Cavanaugh’s requests, finding that Pastafarians were a parody. However, Cavanaugh asserts that the religion is real and that he was a Pastafarian even before he came to prison, with tattoos as proof. Cavanaugh alleges that the only reasons his religious requests were denied was because they do not conform to the ‘traditional’ Abrahamic belief structure.

Cavanaugh isn’t the first Pastafarian to challenge the government. In Kansas, a Pastafarian protested the Kansas Board of Education’s decision to allow intelligent design to be taught in public schools and demanded that Flying Spaghetti Monsterism be taught in schools. In Oklahoma, a woman was allowed to wear a colander on her head in her driver’s license pictures because she said it was part of her religious headgear.

Although the public may laugh off Cavanaugh’s complaint as another frivolous inmate lawsuit, his complaint demonstrates the challenges that the Religious Land Use and Institutionalized Persons Act (RLUIPA) have caused for prisons.

RLUIPA states that no government shall substantially burden an inmate’s religious exercise unless the government shows that the burden is the least restrictive means toward a compelling government interest.

There has been a trend of the courts to bypass an analysis of whether an inmate’s claimed religion is actually a legitimate religion and whether their claimed belief is actually a tenet of that faith. Typically all an inmate has to do, for many courts, is say is that he “sincerely” has a religious belief, and then the burden shifts to the prison to show that 1) they have a compelling government interest in regulating the inmate’s religious beliefs; and 2) that it is the least restrictive way to do so. The courts have often rejected budget concerns as a compelling government interest, and only allow prisons to regulate religious requests if there are security concerns (ignoring the fact that budget concerns and safety are often intertwined).

For example, in one case, an inmate claimed that he was a Theravada Buddhist and needed a vegan diet with vegan food prepared in a vegan kitchen. Even though the inmate had no authority showing that Theravada Buddhism requires a vegan diet, the court bypassed this issue and went directly to whether the prison lawfully rejected the inmate’s requests for these meals. Further, although the prison presented undisputed evidence that it would have to go to Whole Foods to specially fulfill the inmate’s request and it would cost over 30 times as much as a regular inmate meal (including travel of a prison employee), the court denied the prison’s motion for summary judgment.

In sum, the problem with the current state of RLUIPA is that the courts’ understandable reluctance to examine whether a religion or religious belief is legitimate (which would create other First Amendment issues) has opened the floodgates to costly inmate requests. This has put prisons in the impossible situation of trying to accommodate various religious requests or fear being sued. For example, in Nebraska, where Cavanaugh sued based on Pastafarianism, the Department of Corrections already recognizes 20 different religions, including the House of Yahweh, Rastafarianism, and Satanism. California similarly recognizes dozens of religions.

Currently, the Supreme Court is evaluating the application of RLUIPA in the Holt v. Hobbs case. In that case, the issue is whether the Arkansas Department of Correction’s grooming policy violates RLUIPA. With inmate RLUIPA cases getting more attention, it might be a good time for the courts and Congress (who initially wrote and passed RLUIPA with overwhelming bipartisan support) to reassess the state of the law. They need to realize that requests like Cavanaugh’s are not uncommon and are becoming the norm in many prisons. As we have mentioned in previous newsletters, in various lawsuits there have been Native American inmates claiming that they cannot have food touched by menstruating women, House of Yahweh inmates claiming that their Kosher meals must include produce that has been picked from a tree of at least three years of age, and Odinist inmates requesting to drink mead. These examples demonstrate the need for reform.

If courts are not going to scrutinize a religion to determine if it is genuine and what its tenets are, and only consider whether the inmate sincerely believes the request, then prison officials should be given more deference as to whether accommodating each request poses an undue administrative or fiscal burden on the institution.

*This article is reprinted with the permission of Kristina Doan Gruenberg

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.