CSSA Magazine- Religious Land Use and Institutionalized Persons Act (RLUIPA)

Religious Land Use and Institutionalized Persons Act (RLUIPA)

By: Martin J. Mayer, General Counsel
California State Sheriffs’ Association

The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., prohibits, among other things, the imposition of burdens on the ability of prisoners to worship as they please. It also defines the term “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

Under the RLUIPA, the plaintiff bears the burden to prove that the challenged law, regulation, or practice substantially burdens his exercise of religion. Once a plaintiff has made this prima facie showing, the defendant bears the burden to prove that the challenged regulation is the least restrictive means of furthering a compelling governmental interest.

History of RLUIPA

RLUIPA was enacted by the United States Congress in 2000 to correct the problems of the Religious Freedom Restoration Act (RFRA) of 1993. The act was passed in both the House of Representatives and the Senate by unanimous consent. Congress enacted the RLUIPA as a response to the Supreme Court’s decisions in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) and City of Boerne v. Flores, 521 U.S. 507 (1997).

In Smith, the Supreme Court held that the Free Exercise Clause typically does not shield religiously motivated conduct from the burdens of generally applicable laws. Congress responded three years later by enacting the Religious Freedom Restoration Act (RFRA) in an effort to restore the level of protection that religious observations enjoyed before Smith.

The RFRA mandated that government – including state and local governments – shall not substantially burden a person’s exercise of religion unless such a burden met a “compelling governmental interest” and the “least restrictive means” test.
In Flores, the Court declared the RFRA’s application to the States unconstitutional. In response to the Flores decision, Congress enacted RLUIPA, predicating its enactment on its power to enforce the Fourteenth Amendment, and also on its Spending and Commerce powers. RLUIPA targets two areas: land-use regulation and institutions that receive federal funds.
With respect to its protection of institutionalized persons, the UIPA provides: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . , unless the government demonstrates that imposition of the burden on that person (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”
RLUIPA and Jails or Prisons
“Despite RLUIPA’s express purpose to protect the religious observances of institutionalized persons, the statute does not give courts carte blanche to second-guess the reasoned judgments of prison officials. Indeed, while Congress enacted the RLUIPA to address the many ‘frivolous or arbitrary’ barriers impeding institutionalized persons’ religious exercise, it nevertheless anticipated that courts entertaining RLUIPA challenges would accord ‘due deference to the experience and expertise of prison and jail administrators.’” Cutter v. Wilkinson, (2005) 544 U.S. 709.
The Supreme Court has cautioned that “[w]e do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety,” and “an accommodation must be measured so that it does not override other significant interests.”
The Court further stated: “We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a ‘compelling governmental interest’ standard, context matters in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. They anticipated that courts would apply the Act’s standard with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.”
In 2011, a unanimous en banc (11 justices) Ninth Circuit U.S. Court of Appeal held in Khatib v. County of Orange that RLUIPA applies to holding cells in local courthouses.
“Souhair Khatib is a practicing Muslim. In accordance with her religious beliefs, Khatib wears a hijab, or headscarf, covering her hair and neck when in public.” She and her husband had pled guilty to a misdemeanor and sentenced to community service. She appeared in court requesting an extension. “The court revoked Khatib’s probation and ordered her taken into custody. Khatib was handcuffed and taken to the Santa Ana Courthouse’s holding facility. At the booking counter, a male officer ordered Khatib to hand over her belongings and remove her headscarf. Having her head uncovered in public, especially in front of men outside of her immediate family, is a “serious breach of [Khatib’s] faith and a deeply humiliating and defiling experience.”

Nonetheless, she was required to remove the head covering and spent the majority of the day in the lockup in the presence of male officers and inmates. “At a hearing that afternoon, the court reinstated Khatib’s probation and provided an extension of time to complete community service.” Khatib filed a complaint against the County of Orange, the sheriff, and courthouse officers alleging, among other things, violations of RLUIPA.

The district court dismissed Khatib’s RLUIPA claims on the ground that the courthouse holding facility was not a covered institution under the Act.” The Court of Appeal affirmed that decision but the en banc court reversed stating that “the term ‘institution’ includes ‘a jail, prison, or other correctional facility’ and ‘a pretrial detention facility.’ We consider whether the Orange County Santa Ana Courthouse holding facility, where every day hundreds of individuals are detained in connection with court proceedings, is an ‘institution’ as defined by RLUIPA. We conclude that this facility is such an ‘institution’ under RLUIPA, and thus the Act covers persons detained at the facility.”

On January 20, 2015 the United States Supreme Court applied RLUIPA, in the case of Holt v. Hobbs, 2015 DAR 734, regarding an inmate’s right to wear a beard for religious purposes.

“Petitioner is an Arkansas inmate and devout Muslim who wishes to grow a ½-inch beard in accordance with his religious beliefs. Respondent Arkansas Department of Correction (Department) prohibits its prisoners from growing beards, with the single exception that inmates with diagnosed skin conditions may grow ¼-inch beards. Petitioner sought an exemption on religious grounds and, although he believes that his faith requires him not to trim his beard at all, he proposed a compromise under which he would be allowed to maintain a ½-inch beard. Prison officials denied his request. . . .”

“(P)etitioner sued in Federal District Court. At an evidentiary hearing, Department witnesses testified that beards compromised prison safety because they could be used to hide contraband and because an inmate could quickly shave his beard to disguise his identity.” The district court dismissed Holt’s complaint, emphasizing that prison officials are entitled to deference on security matters and that the prison permitted petitioner to exercise his religion in other ways.

The Eighth Circuit U.S. Court of Appeals affirmed, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests, and reiterating that courts should defer to prison officials on matters of security. The U.S. Supreme Court unanimously reversed.

“Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which pro­vides that ‘[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.’”

“The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs. . . .”

“At a hearing in the District Court, Department witnesses testified that inmates could hide contraband in even a ½ inch beard, but neither pointed to any instances in which this had been done in Arkansas or elsewhere. Both witnesses also acknowledged that inmates could hide items in many other places, such as in the hair on their heads or their clothing. In addition, one of the witnesses . . . testified that a prisoner who escaped could change his appearance by shaving his beard, and that a prisoner could shave his beard to disguise himself and enter a restricted area of the prison. Neither witness, however, was able to explain why these problems could not be ad­dressed by taking a photograph of an inmate without a beard, a practice followed in other prison systems.”

The Court noted that many other states provide accommodations for the wearing of beards, however, said the Court, “(w)e do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here.”

The Court concluded that, “in this case . . . the Department’s policy substantially burdens petitioner’s religious exercise. Although we do not question the importance of the De­partment’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we con­clude that the Department has failed to show that its policy is the least restrictive means of furthering its com­pelling interests.”

RLUIPA applies to all institutions where people are held involuntarily. As stated in the law, it applies to “a jail, prison, or other correctional facility,” as well as to “a pretrial detention facility,” such as a lockup in a courtroom. The underlying protections of religious activity must be provided in all such facilities, no matter how short a time the person will be detained, unless there is a significant governmental need at issue and it is the least restrictive means available.

“Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined ‘reli­gious exercise’ capaciously to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’ Congress mandated that this concept ‘shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.’”

Courts recognize, and frequently defer to, concerns of jail and prison administrators regarding restrictions on inmates “rights.” Nonetheless, it appears clear that the burden is on the institutions to show that the restrictions imposed are “furthering its compelling (governmental) interests.”

It is also incumbent upon institutions to consider, in good faith, alternatives to those restrictions which are proposed by the inmates. As the Supreme Court said, in the Holt case, “the courts below deferred to these prison officials’ mere say so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not ‘assume a plausible, less restrictive alternative would be ineffective.’”

As in all matters involving the interpretation of law, it is imperative that the advice and guidance of an agency’s legal counsel be sought and, when appropriate, followed. In that way, the potential for litigation and liability is significantly reduced.

Martin J. Mayer is a name partner in the public sector law firm, Jones & Mayer, and has served as General Counsel for CSSA for more than 30 years.