Second Circuit Defines RLUIPA Standards

In Kessh v. Smith, No. 08-2816, (2d Cir. Sep 28, 2009) (here) a unanimous three judge panel considers, for the first time in its Circuit, "what constitutes a compelling state interest under the RLUIPA."  In Keesh, an inmate practices Tulukeesh, which imposes "various dietary restrictions," and "requires Tulukeesh members to engage in sparring, and prohibits them from appearing nude in front of non-members."  Slip op. at *2-3.  Prison officials did what they could, but were unable to wholly accommodate the prisoner's demands.  The prisoner sued under RLUIPA.

The Religious Land Use and Institutionalized Persons Act requires prison officials to accommodate a prisoner's free exercise of religion.  RLUIPA a creation of statute that grants rights far greater than those guaranteed under the First Amendment.  Under RLUIPA:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
 (1) is in furtherance of a compelling governmental interest; and
 (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc–1. After noting that, "We have not previously considered what constitutes a compelling state interest under the RLUIPA," the panel quotes case language from different Circuits.  The panel did not provide its own substantive analysis, though one reading Keesh would infer the standard to be that "security concerns are undisputedly compelling state interests."  Id. at *8.  However, states "must  provide sufficient evidence explaining how the practices at issue furthered the stated interest."  Id. (citations omitted).  Added to that standard: Accordingly, “inadequately formulated prison regulations and policies grounded on mere4 speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the [RLUIPA’s] requirements.” Id. (citing 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)).

Somewhere, Justice Sandra Day O'Connor is smiling.

Applying that standard, the panel found that the prison had met the compelling governmental interest test.    Then panel continued: "We have also not previously considered under what circumstances a challenged practice constitutes the least restrictive means of furthering a state’s compelling interests."  Id. at *8.  As with the compelling state interest above, the panel notes that the narrowly-tailed question will answered by the evidence.  Id. ("for a state to demonstrate that its practice is the least restrictive means, it must show that it actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.) (citation and quotation marks omitted).

The panel dismissed all of the prisoner's claims except the dietary restriction ones.  The dietary restriction claim was remanded to the trial court:
Because the record fails to show that the religious alternative menu provided to the Appellants is the least restrictive means of furthering the Defendants’ compelling interests, the district court’s grant of summary judgment to the Defendants as to this issue was incorrect. Accordingly, the case is remanded for consideration of whether there is a less restrictive substitute (including, but not limited to, an entirely vegetarian diet) for the current religious alternative menu.
Id. at *11.