Two Recent Federal Appellate Decisions on Prisoners' Religious Exercise Claims:
Illustrations of the Application of the Religious Land Use and Institutionalized Persons Act to the Prison Context

By MARCI HAMILTON

Thursday, Jan. 11, 2007

At the end of 2006, the U.S. Court of Appeals for the Fourth Circuit announced two important decisions involving the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA -- a federal statute I have discussed in an earlier column - makes it more likely, among other things, that inmates will prevail on claims regarding the free exercise of their religion. In short, it gives them more protection than the Constitution has, in Supreme Court precedent.

In the first case, Lovelace v. Lee, the panel held in favor of the inmate, using some far-reaching reasoning to do so. Judges Michael and Motz were in the majority, while Judge Wilkinson was in dissent. The second case, Madison v. Commonwealth, is the more important of the two, because the panel addresses the constitutional issue of whether states are subject to damages under RLUIPA. In an opinion written by Judge Wilkinson, it holds that the Eleventh Amendment precludes the award of such damages.

Lovelace v. Lee: The Facts and Allegations

The first case arose when the Keen Mountain (Va.) Correctional Center instituted a Ramadan program that permitted inmates to eat special morning and evening meals, followed by group prayer. During the day, inmates were permitted to fast. However, the program required any inmate who failed to keep the fast to return to the general population's eating procedures, on the ground that breaking the fast indicated a lack of sincerity regarding the religious exercise. In addition, the fasting program, which goes well beyond many prison accommodations for Ramadan, displaced for the month of Ramadan the typical weekly prayer services.

Plaintiff Leroy Lovelace is a member of the Nation of Islam (NOI) and a NOI liaison at Keen Mountain, and asked to be included in the Ramadan program.

Six days into the fast, Lovelace, as the NOI liaison, informed the kitchen staff that the milk served at breakfast was "beyond its stamped expiration date." The milk was replaced with fresh milk, but the exchange over the milk was "contentious," and Correctional Officer Lester was on duty.

That evening, Lovelace was barred from the evening meal, because Lester had reported that Lovelace had taken a lunch tray that afternoon, and, therefore, had forfeited his right to be part of the Ramadan observance.

Much later, Lester asserted that the person he saw was not Lovelace, but someone else with the same last name. Apparently, however, there were, in fact, no other Lovelaces at the correctional facility.

The Majority and Dissent's Views in Lovelace

Lovelace filed suit in federal court, invoking RLUIPA, the First Amendment, and due process, suing the warden in his official capacity and Correctional Officer Lester in his personal capacity (as well as the assistant warden). The district court granted summary judgment in favor of all defendants. Before the U.S. Court of Appeals for the Fourth Circuit, Lovelace won on aspects of all three of the legal theories Lovelace invoked.

To go straight to the point, there does seem to be ample question regarding Correctional Officer Lester's motives and statements. No wonder, then, that the Fourth Circuit vacated the grant of summary judgment in favor of Lester in his personal capacity (as well as the grant in favor of Warden Jack Lee in his official capacity). The most important question is how to characterize the harm done to Lovelace, and how to characterize the Ramadan accommodation program.

Under RLUIPA's standards, the inmate must first prove that the prison procedures impose a "substantial burden" on "religious exercise," which was not difficult in this case. The panel majority pointed repeatedly to the fact that once Lovelace was removed from the Ramadan "pass list," there was no religious observance available to him. The court seemed to be saying that the facility had to offer alternative religious services for those inmates who did not take advantage of the Ramadan program, rather than shifting resources from one accommodation to another.

Next, RLUIPA places the burden on the government to prove that its practices satisfy a compelling state interest, and are the least restrictive means of achieving those ends. The majority found that the defendants had not yet offered meaningful or sufficiently detailed explanations as to why the Ramadan program was the least restrictive means of serving a compelling interest. Thus, the result was to send all of Lovelace's claims back to the district court, for Lester and Lee to offer justifications for the program and, in particular, for the aspect of the program that both penalized believers who broke the fast and then failed to provide for weekly prayer services.

In dissent and concurrence, Judge Wilkinson made the astute point that the majority was treating the expansive Ramadan accommodation program as though the program itself was a burden on religious exercise. Under the majority's approach, he suggested, the defendants were charged with defending the program as though it could burden religious exercise.

Judge Wilkinson rightly agreed with the majority's suspicions regarding Lester's motives and actions; he noted, however, that Lester was the one who imposed on Lovelace's religious exercise, not the program. He also thought it possible that Warden Lee, in his official capacity, may have imposed on religious exercise by handling the situation as it was handled. But he deemed the program itself, if anything, a model for other corrections facilities to follow.

Judge Wilkinson explained the problem with the majority's reasoning as follows:

At the time that Lovelace was excluded from Ramadan, the sincerity of his beliefs was precisely the issue. The policy was designed to accommodate only sincere observers by the most reliable indicator possible: the would-be observers' own religious practice. Without such an indicator, and without the ability to remove insincere participants, prisons would find themselves providing special religious meals for fasts that the inmates themselves were not observing. Taken to its extreme, such a policy would allow inmates to attend five group meals a day with impunity.

The key difference between the majority opinion, and the dissent, is that the majority was focused solely on Lovelace, to the exclusion of the correctional facility's interests in order and safety. (This is what happens too often, as I explain in detail in God vs. the Gavel: Religion and the Rule of Law.) Judge Wilkinson, in contrast, was very careful to look at both the interests of the inmate (which he in no way minimized) and the larger institutional interests. The majority's approach would micromanage prison accommodation programs, while the dissent would give deference where deference was due.

As I discussed in a prior column, the Supreme Court's decision in Cutter v. Wilkinson upheld RLUIPA in the prison context against Establishment Clause attack on the very basis that courts were required to give great deference to prison officials' articulation of penal interest. Judge Wilkinson's approach is far closer to the spirit of Cutter than that of the misguided majority.

Madison v. Riter: An Important Eleventh Amendment Issue

In the second case, Judge Wilkinson - the dissenter in Lovelace -- wrote an opinion for a unanimous panel. This case involved the question whether a prisoner who prevails under RLUIPA can obtain damages from a state treasury, consistently with the Eleventh Amendment's state immunity for damage actions.

The opinion first considered Congress's power to enact RLUIPA's prison provisions in the first place. Not surprisingly, the court ruled that the prison provisions could be upheld under Congress's Spending Clause power; since Congress funds state prisons (though often a very small amount compared to the larger budget), it may decide to regulate their operation. (Notably, this holding will not affect land use cases, given that federal money is almost never involved in local land development.) Unless the newly configured Roberts Court strengthens the limitations on the spending power, this result seemed foreordained.

However, the court next asked whether a damages action could be had against the state, and there, the question was much more interesting.

Under the Eleventh Amendment, states are immune from damages actions unless they have waived their immunity. Moreover, there needs to be an "unequivocal textual waiver" - that is, a waiver via the express wording of a statute or other legal provision - for the waiver to be effective.

The Fourth Circuit rejected the notion that there had been a meaningful waiver of state immunity under RLUIPA, because, it reasoned, Congress had not made it clear that the acceptance of federal funds by state prisons constituted a waiver of their Eleventh Amendment defense. (RLUIPA made it clear that acceptance of funds would carry with it the burdens of RLUIPA, but the question of damages is a separate question.) The result is that the remedy in the case could not include damages against the state. It was to be limited to injunctive relief - a court order to cease or compel behavior.

Such a ruling obviously, and profoundly, alters the dynamics of litigation under RLUIPA's prison provisions. The prospect of damages can spur litigants, lawyers, and public interest organizations forward, while their absence may be a large deterrent.

In addition to being notable for their analysis and holdings, these two cases also reinforce how RLUIPA has displaced the Supreme Court's jurisprudence regarding the constitutional guarantee of the right to the free exercise of religion. (The same is true of RFRA - which I discussed in a previous column -- as applied to federal law) So long as RLUIPA and RFRA are in place, the court's free exercise doctrine will predictably stagnate in significant arenas, because there is no need to reach the constitutional issue. At the same time, the courts will be tempted, as the Lovelace court was, to micromanage local and state programs.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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