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?

The Eagle Cove plaintiffs’ Motion For Relief From Grant To Defendants Of Summary Judgment and the supporting memorandum of law are available here and 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.