RLUIPA Seeks to Pick Up Where RFRA Left Off.

This past fall, President Bill Clinton signed the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000 into law. The new law attempts to reinstate some of the restrictions previously contained in the Religious Freedom Restoration Act (RFRA) of 1993, which the U.S. Supreme Court struck down as unconstitutional in the 1997 case, City of Boerne v. Flores.

RLUIPA was introduced July 13, 2000, after an earlier religious liberty protection law, the Religious Liberty Protection Act, failed to pass in both houses of Congress. As a result, a coalition of diverse interest groups, including the American Civil Liberties Union, Americans for the Separation of Church and State, the Christian Legal Society and the Baptist Joint Committee, formed to help get RLUIPA passed.

The new law focuses on two areas -- using zoning restrictions to limit religious exercise and burdening religious expression of individuals confined to certain institutions. In both cases, RLUIPA forbids state and local governments from imposing a substantial burden on religious expression unless they can demonstrate that it is the least restrictive means of furthering a compelling government interest.

If approved, RLUIPA will have a significant impact on corrections, perhaps an even greater impact than that of RFRA. Unlike with the passage of RFRA, there was no attempt to amend RLUIPA to exempt prison systems and it passed unanimously in Congress without committee action. Under RLUIPA, individuals residing in or confined to institutions, as defined in Section 2 of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. [ss] 1997, are covered by its provisions. Under this definition, all jails, prisons and other correctional facilities operated by a state or political subdivision of a state must abide by the requirements of RLUIPA. The federal prison system, however, is not covered by RLUIPA and continues to be governed by RFRA under the theory that the Supreme Court only ruled unconstitutional RFRA's application to nonfederal jurisdictions.

With one notable exception, much of the language contained in RLUIPA mirrors the language found in RFRA. Under RFRA, the federal court opinions have divided over the issue of whether a religious practice needs to be "mandated" or "central" to a religious faith to be protected under the act. Many correctional systems were able to successfully argue that requests for religious items or practices were not entitled to RFRA protection because they were not central to an inmate's religion. For example, in Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995), the U.S. Court of Appeals for the 9th Circuit found that the California Department of Corrections had not imposed a substantial burden on inmate Bryant's free exercise of religion when it deprived him of the opportunity to participate in a full Pentecostal service by denying him practices such as "speaking in tongues" and "laying hands on each other." The court found that the inmate had not shown he could not meet the mandates of his religion without the benefit of the se practices, therefore his religious exercise was not substantially burdened. Courts in the 4th, 5th, 6th, 10th and 11th circuits followed suit and restricted cases under RFRA to those that burdened a "central tenet" of one's religion.

In contrast, the U.S. Court of Appeals for the 7th Circuit reached a different conclusion in Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996), holding that a substantial burden exists when the government forces adherents of a religion to refrain from "religiously motivated conduct." The court reasoned that it was not appropriate for the judiciary to get involved in determining the "mandates" of any particular religion. This approach has been codified in RLUIPA. The act defines "religious exercise" as including "any exercise of religion, whether or not compelled by, or central to, a system of religious beliefs." Adopting this broader definition will take away a significant defense from those jurisdictions governed by the earlier Bryant v. Gomez line of cases.

Correctional systems still will be able to argue that restrictions on free exercise of religion goes to furthering a compelling government interest, which, in the correctional context, often includes arguments for safety and security. Correctional administrators also may argue that denial of inmate requests, which could lead to additional staffing or other administrative costs, furthers the compelling government interest of efficiency and cost-effectiveness. For example, if a group of inmates wants to hold religious services five times per week, requiring significant staff oversight, administrators may argue that the request must be denied to avoid the cost of granting this request and other similar requests that may follow. Correctional administrators must ensure, however, that the compelling government interest is met through the least restrictive means possible. So, instead of totally denying a request, officials may accommodate a variation of the practice that may not meet the inmates' exact conditions. A ll options should be explored before responding to an inmate request.

There are two other avenues of defense available to correctional officials. First, RLUIPA only protects the exercise of "religion." When a defendant tried to appeal his drug conviction by arguing that distribution of marijuana is part of his religion, the U.S. Court of Appeals for the 10th Circuit found that despite the defendant's sincere beliefs, they were not religious within the context of RFRA. Similarly, RLUIPA does not protect activities motivated by philosophical, ideological or secular beliefs. (U.S. v. Meyers, 95 F.3d 1475 (10th Cir. 1996), citing Wisconsin v. Yoder, 406 U.S. 205 (1972).) Even if religious in nature, inmates must be "sincere" in their beliefs. Proving otherwise is a difficult task and requires factual evidence. Administrators may ask an inmate to explain the motivation behind a religious request to determine his or her sincerity. There may be some evidence in an inmate's statement that points to a nonreligious motivation for the request.

RLUIPA will be challenged on constitutional grounds similar to those used to defeat RFRA in 1997. Opponents of the law already are arguing that RLUIPA may violate a number of constitutional provisions, including the 14th Amendment, and the commerce and spending clauses of the U.S. Constitution.

As with any new statute, correctional administrators should be certain the decisions they make are in careful consideration of the provisions of the law. The best advice: Move slowly on any decisions about inmate religious requests while case law under RLUIPA is being developed. Chaplains, legal counsel and security staff should be consulted before making decisions. Staff in jurisdictions in which defenses were used that no longer are available under RLUIPA must be trained on the provisions of the new law. With past RFRA cases as guidance, correctional administrators, in consultation with their attorneys, can determine the best test cases to set the stage to further clarify the parameters of the law and mount constitutional challenges.

Jeffrey Shorba is director of policy and legal services for the Minnesota Department of Corrections.