Last week, we reported on a case where the Southern District of Florida decided against the Florida Department of Corrections, finding its refusal to provide kosher meals to inmates violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court’s decision was noteworthy for its application of two recent Supreme Court decisions – Burwell v. Hobby Lobby (2014) and Holt v. Hobbs (2014) – to find a violation of RLUIPA.
Today’s post regarding the Seventh Circuit’s decision in Schlemm v. Wall (7th Cir. 2015) is cut from the same cloth. Specifically, the Seventh Circuit’s heavy reliance on Holt and Hobby Lobby confirms that denial of a prisoner’s request for a religious accommodation must be supported by more than concerns regarding costs and that any limitation on prisoner religious exercise must be achieved through the “least restrictive means” available. The Seventh Circuit overturned and remanded the lower court’s grant of summary judgment in favor of prison officials.
Prisoner Schlemm is a member of the Navajo Tribe and has been imprisoned in Wisconsin since 1999. In accordance with Navajo religious beliefs, Schlemm wished to celebrate the Ghost Feast, which is a “harvest celebration that honors the dead through dancing, praying, and eating traditional foods.” As part of his Ghost Feast observance, Schlemm sought to obtain game meat (venison), but would have been satisfied with ground beef to include in traditional Indian tacos. The prison rejected the requests for the venison and the alternative of ground beef, contending it would be too expensive to import venison to the prison, the request would “exceed the capacity of institutional kitchens,” and that importing game meat would violate the state-wide rule that prison foods must be inspected and certified by the United States Department of Agriculture (USDA). Schelmm also requested that he be allowed to wear a multi-color headband when praying in his cell and during group religious ceremonies. The prison only allows solid black or white headbands to reduce any indication of gang membership.
Relying on Holt and Hobby Lobby, the Seventh Circuit found the prison failed to point to a compelling government interest in denying Schlemm’s food requests or that the prison furthered any interest through the “least restrictive means.” The court noted, “Saving a few dollars is not a compelling interest, nor is a bureaucratic desire to follow the prison system’s rules.” It also found that the prison provided no evidence that it could not obtain USDA-inspected venison. With regard to limiting the color of religious head gear, the court doubted that limiting gang-related identification could prove “compelling,” since so many avenues were still available to convey gang membership (tattoos, hand signals, and gang related speech). Additionally, Schlemm proposed to wear his headband only in his cell or in group religious ceremonies, and the headband would not include red—“the only gang-signifying color at the prison.”
Perhaps the most interesting part of this case, however, was the Seventh Circuit’s reliance on Holt and Hobby Lobby to limit how the Circuit defines a “substantial burden” in the land use and prison contexts. Both Holt and Hobby Lobby are largely recognized as impacting how courts evaluate whether a governmental interest is “compelling” and furthered by “the least restrictive means” available. In Schlemm, however, the court relied on these cases to reject how the Seventh Circuit had previously addressed the RLUIPA substantial burden analysis. The court concludes that Holt and Hobby Lobby articulated a substantial burden standard “much easier to satisfy” than that used in Eagle Cove Camp & Conference Center, Inc. v. Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (“to be substantial, a burden must be ‘one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise … effectively impracticable.’”) (prior post about Eagle Cove available here).
It is remarkable that the court made explicit reference to the Eagle Cove case without reference to any of the Seventh Circuit’s numerous cases that evaluate the substantial burden standard—or the case from which the standard is derived: C.L.U.B. v. City of Chicago, No. 01-4030 (7th Cir. 2003). See also, e.g., Petra Presbyterian Church v. Village of Northbrook, No. 06-1329 (7th Cir 2007); Vision Church, United Methodist v. Village of Long Grove, Nos. 05-4144, 05-4234 (7th Cir. 2006); Sts. Constantine and Helen Orthodox Church, Inc. v. City of New Berlin, Nos. 05-4418, 05-4450 & 05-4451 (7th Cir. 2007).
Given the Schlemm decision, plaintiffs in the Eagle Cove case have recently asked that the Western District of Wisconsin vacate its grant of summary judgment to Oneida County, Wisconsin (February 1, 2013):
Application of the C.L.U.B standard to Count III [substantial burden] of this very civil action has now been expressly overruled by the same Seventh Circuit in Schlemm v. Wall, (2015 U.S.App. LEXIS 6592 April 21, 2015) based upon intervening United States Supreme Court decisions in Holt v. Hobbs, 135 S.Ct. 853 (2015) and Burwell v. Hobby Lobby Stores, 134S.Ct. 2751 (2014).
RLUIPA Defense will follow the Eagle Cove plaintiffs’ petition with interest—is the Seventh Circuit’s decision in Schlemm, a prisoner case largely focused on the compelling interest and least restrictive means analysis, a re-evaluation of the Circuit’s substantial burden precedent? Or does the court’s sparse evaluation of Seventh Circuit substantial burden cases law leave enough room for the Circuit to limit the future impact of Schlemm?