Normally, we would not report on an institutionalized person’s claim under RLUIPA, but we do so in Stover v. Corrections Corporation of America (Dist. Idaho 2015) because the decision reflects a recent trend in RLUIPA cases: close judicial scrutiny as to whether a compelling government interest is furthered by “the least restrictive means” available. As noted in our previous post, the recent Supreme Court cases, Burwell v. Hobby Lobby and Holt v. Hobbs have directed attention to the question: how can local governments prove that their actions constitute the least restrictive means of advancing a compelling government interest?

Plaintiff Jessie E. Stover, a Native American male-to-female transgender prisoner in the custody of the Idaho Department of Correction (“IDOC”), has been diagnosed with Gender Identity Disorder (“GID”). She receives hormone therapy and has female physical characteristics, but remains in a male prison because she has not undergone sex reassignment surgery and remains anatomically male. In early 2011, shortly after Stover arrived at Idaho State Correctional Institution (“ISCI”), she informed prison officials that she wished to participate in “Native American religious practices.” Stover requested use of ISCI’s sweat lodge, but her request was denied. According to the Deputy Warden of Operations, Stover was not allowed use of the lodge because portions of the sweating ceremony are performed by inmates inside the lodge and out of view of prison staff. Since Stover self-identifies as female, ISCI officials determined that it would be unsafe for her to use the sweat lodge in the company of the male inmates.

Prison officials offered Stover the alternative of celebrating her religion in her cell alone in what is known as a “smudging” ceremony. A smudging ceremony involves the burning of a bundle of herbs wrapped together in the form of a “smudge stick.” The parties dispute whether or not Stover agreed that smudging in her cell was a reasonable alternative to sweating. Stover claims that it took too long (approximately 10 weeks after her oral request for a smudge stick) for ISCI to provide her with such a stick and the mechanism needed to light the stick (e.g., working matches) and burn the herbs. After the delay, Stover told prison officials that she was no longer satisfied with smudging only and requested “full ceremonial rights, including sweat, smudging and Pipe ceremonial rites.”

After denying Stover access to the sweat lodge, prison officials wrote to Stover:

Offenders in general population have access to the sweat lodge. There is no least restrictive alternative given the restrictions of a federal court order regarding wood for the fire and heating the rocks and time and staff limitations to have one offender use the sweat lodge. You are allowed to smudge in your unit and have been provided a smudge stick and the means to light it along with a memo for staff outlining the authorization and procedure.

In response, Stover claims she requested the right to use the sweat lodge after the male inmates had finished using the lodge and that a chaplain at ISCI volunteered to escort her. According to Stover, “this plan would have allowed her to use the sweat lodge by herself, without placing additional burdens on prison staff, but that the plan ‘was never implemented.’”

Prison officials also justified this denial of sweat lodge access by asserting that allowing a transgender person access to the sweat lodge, at any time, would violate the religious beliefs of other prisoners. According to defendants, “some Native American tribes believe that allowing a two-spirited person (an individual suffering from gender identify disorder or gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would desecrate the religious sanctity of the lodge.” Accordingly, they argued that prohibiting Stover from ever using the sweat lodge “was justified by the compelling penological interest of not burdening the religious practices of other inmates who wish to use the sweat lodge.”

Stover sued IDOC, Idaho Correctional Center, Corrections Corporation of America, and several individual prison officials under RLUIPA. She claimed the defendants had substantially burdened her religious exercise under RLUIPA by failing to: (1) timely provide her with a smudge stick so she could participate in a religious smudging ceremony at ISCI, and (2) accommodate her use of the sweat lodge at ISCI.

First Amendment Claims: The court dismissed Stover’s First Amendment claims based on the delay in obtaining a smudge stick and failure to provide access to the sweat lodge. Any delay in obtaining the smudge stick was considered a de minimus burden on religious exercise. In terms of the sweat lodge, the court recognized the prison’s legitimate interest in protecting Stover’s safety and that prohibiting the use of the lodge was reasonably related to that interest. The court noted that “[t]he First Amendment does not require prisons to use the least restrictive means in accommodating prisoners’ religious requests.” Also, smudging in her cell was found to be an “‘alternative means of exercising’ her religious beliefs.” The court entered summary judgment in favor of defendants on this claim.

RLUIPA Claims: The court again noted that any delay in providing a smudge stick was de minimus, therefore not a substantial burden, and dismissed Plaintiff’s RLUIPA claim based on the same. With respect to denying access to the sweat lodge, Defendants agreed that the denial imposed a substantial burden on Plaintiff’s religious beliefs. The court found that “[e]nsuring a vulnerable prisoner’s safety is obviously a compelling governmental interest.” However, there was no evidence in the record that prison officials actually considered and rejected the efficacy of Stover’s proposed less restrictive alternative of using the sweat lodge after male inmates and while escorted by a prison chaplain. Indeed, the court observed that Stover’s alternative access plan might well serve as a less restrictive alternative to complete denial. Relying on Holt v. Hobbs, the court also noted that “[i]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.”

The court also concluded that “Defendants have not establish[ed] that burdening one individual’s religious practice in an attempt to avoid burdening another’s religious practice is a compelling governmental interest under RLUIPA…. The Court is persuaded that government officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious concerns, particularly where, as here, the asserted justification is based on mere speculation as to what some other inmates might find religiously objectionable.”  It declined entering summary judgment in favor of defendants on this claim and allowed Stover’s RLUIPA claim regarding access to the sweat lodge to proceed.

The District of Idaho’s decision in Stover v. Corrections Corporation of America, Case No. 1:12-cv-00393-EJL, is available here.