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.

 

 

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Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

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.