by Staci Cox*

What evidentiary burden must prisons must satisfy in order to show that its policy restricting an inmate’s religious exercise is sufficiently narrowly tailored under Religious Land Use and Institutionalized Persons Act (RLUIPA)? Staci Cox (’17) examines this question, raised at the Touro Law School Moot Court Competition on April 7th, 2016. In assessing whether a prison’s policy that restricts religious exercise is sufficiently narrowly tailored under RLUIPA, courts examine the religious exemptions already provided to inmates within the facility; if no exemptions are already provided, courts ask whether the prison could effectuate its policy through less restrictive means, without unduly burdening other inmates or straining prison operations. This contribution argues that, in order to demonstrate that their policies are sufficiently narrowly tailored under RLUIPA, prisons must satisfy a significant evidentiary burden by showing: the frequency with which current exemptions are used, the costs of providing additional exemptions, and the extent would threaten the safety and security of inmates.

In the courtroom, a prisoner should not have to fight alone. Thankfully, the Religious Land Use and Institutionalized Persons Act (RLUIPA) is a strong force in shielding a prisoner from government religious overreach. According to RLUIPA, the government is prohibited from imposing a substantial burden on a prisoner’s religious exercise unless imposing the burden (1) “is in furtherance of a compelling governmental interest” and (2) “is the least restrictive means of furthering that compelling governmental interest.”2

It is well known that prisons have instituted restrictive policies – some related to congregation and prayer – that limit an inmate’s ability to practice his religion. Since prisons are afforded due deference in managing security matters,3 prisons are able to cite “safety” as both a sword to restrict religious exercise and a shield to defend their policies. Though safety is a serious concern, this article will argue that courts should require prisons to provide significant evidence indicating their policies are narrowly tailored before upholding a prison policy that restricts an inmate’s religious exercise.


Under RLUIPA, the “‘threshold question of sincerity . . . must be resolved in every case.’”4 Determining the sincerity of an inmate’s religious beliefs is a “case-by-case, fact-specific inquiry . . . .”5 Though courts can find a prisoner’s religious activity to be insincere if there are clear alternative motives for religious behavior, such as “cloak[ing] illicit conduct,”6 establishing sincerity is not demanding, and it is usually presumed.7 After the sincerity inquiry, courts move to the substantial burden phase of RLUIPA’s test.

A prison policy imposes a substantial burden if “the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.”8 In light of the Supreme Court’s recent decision in Holt v. Hobbs, satisfying the substantial burden prong is not difficult for a prisoner to meet.9 Moreover, “assembling with others for a worship service” is protected under RLUIPA.10 After a prisoner satisfies the substantial burden prong, the court then moves to the compelling interest and narrow tailoring portions of RLUIPA’s test.

To overcome a RLUIPA claim, the government must show it is furthering a compelling government interest.11 Although RLUIPA does not define “compelling interest,” the Supreme Court has explained that “context matters in the application of that standard.”12 In other words, courts must view the case in light of its context within a factual record to determine whether the purported government interest is justified.13

As the Second Circuit elaborated, “inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the [RLUIPA’s] requirements.”14 Thus, in order to prevail on the compelling interest prong, the prison must show—based on evidence from the record and not mere speculation—that it is furthering a compelling government interest. Because courts must analyze security concerns under a cautious framework and, therefore, give deference to prison officials,15 it is likely that a prison would be able to successfully argue that a policy banning certain congregation services due to an inherently dangerous, maximum security prison environment furthers security interests. Therefore, the strongest contention rests in the narrow tailoring prong of RLUIPA’s test.

The narrow tailoring prong is “exceptionally demanding.”16 To satisfy this prong, the prison must “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion . . . .”17 In other words, the prison must use a less restrictive means to further its interests if those means are available.18 Moreover, in order to prevail on the narrow tailoring RLUIPA prong, the prison must show that it considered alternatives and determined they were not feasible.19 However, and with respect to the prisoner’s burden, Justice Ginsburg explained in a concurring opinion in Holt that the prison must refute alternatives offered by the prisoner himself.20 This concurrence – though not the law, and although it relied on a case in the similar Religious Freedom Restoration Act context – envisions yet another obstacle to a successful RLUIPA claim.


In determining whether a prison’s policy satisfies the least restrictive means prong, courts should follow the Supreme Court’s guidance in Holt v. Hobbs, the most recent Supreme Court decision addressing this issue. Courts should focus on whether a prison already provides an exemption to its restrictive policy. If a prison has disallowed all exemptions, courts should determine if an exemption could serve as a less restrictive means to a complete ban on certain religious exercise.

Providing an exemption is evidence that the government could more closely tailor its policy so that it is less restrictive.21 However, this general analysis may be more nuanced. Banning certain prayer and congregation, while allowing for particular case-by-case exemptions, can be differentiated from banning beards of a certain length for some inmates and not others. For example, the regular beard trimming required by the prison in Holt would presumably occur less frequently than nightly congregation and prayer. If so, then using existing and previously budgeted resources to provide for case-by-case exemptions – while upholding the overall religious limitation – might satisfy the least restrictive means inquiry. Courts should require prisons to provide significant evidence of how declining an additional exemption request is the least restrictive means to promoting security. Failing to require this evidence would likely cause severe and harsh consequences to prisoners and significantly reduce the purpose of RLUIPA, which is to protect the religious exercise of prisoners.

In a circumstance where a prison has rejected all exemptions (perhaps to avoid the reasoning in Holt), courts should determine whether an exemption would provide a less restrictive means. Prisons may argue that providing an exemption to one inmate or group of inmates may cause an unbridled flow of exemption requests. However, this slippery slope argument was rejected in Holt.22 In addition, furthering the prison’s interest in the least restrictive manner may require a prison to allocate additional financial resources to accommodate religious needs.23 A prison, concerned about security and budgetary limitations due to exemption requests, can find reassurance knowing that it can reject accommodations that are excessive, would unduly burden other inmates, or impact effective prison operations.24 Yet, to reiterate, prisons should not be permitted to rely on this argument without significant supporting evidence. Instead, prisons should be required to provide religious exemptions to policies restricting religious exercise, unless these facilities can adequately prove that not acquiescing is the least restrictive means to further their compelling government interest. Additional evidence could include how often any current exemption is used, the cost of accommodating an additional exemption request, and how the security and safety of the prison system would be jeopardized if the prison granted the exemption.


Before a court decides whether a policy is the least restrictive means, prisons should be required to submit significant evidence reinforcing their position. If necessary, courts should remand the case in order for prisons to gather the needed evidence and present it to the court. In order to uphold the spirit of RLUIPA and protect prisoners against government religious overreach, no court should rule in favor of any party until there is ample evidence from the prison supporting its narrow tailoring scheme.

* This article describes my experience at the 2016 Touro Law School Moot Court competition. The case explored whether a maximum security prison, Tourovia Correctional Center, violated RLUIPA through two policies: (1) a policy forbidding all prisoners from congregating for a nightly worship service and (2) a policy that enabled the prison to indefinitely remove a prisoner from a religious diet for one instance of backsliding. If a prisoner violated either policy, he was faced with the threat of solitary confinement. This article will only discuss the issue on which I focused—the congregation policy. The hypothetical lower court ruled against the prison and granted summary judgment motion for the prisoner. The hypothetical circuit court reversed the lower court’s ruling. Even though there was a dispute of a very material fact (whether the prisoner actually violated his religious diet) the circuit court failed to remand the case. The Supreme Court accepted certiorari on the two policy issues, using the same RLUIPA legal standard.

2. Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a).

3. See Koger v. Bryan, 523 F.3d 789, 800 (7th Cir. 2008) (explaining that security concerns are examined with “‘particular sensitivity’”) (citing Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).

4. Lovelace v. Lee, 472 F.3d 174, 207 (4th Cir. 2006) (Wilkinson, J., concurring) (quoting U.S. v. Seeger, 380 U.S. 163, 185 (1965)).

5. Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004).

6. Holt v. Hobbs, 135 S. Ct. 853, 867 (2015).

7. Moussazadeh v. Tex. Dep’t of Crim. Justice, 703 F.3d 781, 791 (5th Cir. 2012).

8. Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007).

9. See Holt, 135 S. Ct. at 862 (holding that a prison policy that pressures a prisoner to violate his religious beliefs or face “serious disciplinary action” amounts to a substantial burden); see also Walker v. Beard, 789 F.3d 1125, 1135 (9th Cir. 2015) (holding that forcing a prisoner to pray in his cell with a non-white cellmate amounted to a substantial burden when his religion forbade him from doing so).

10. Cutter v. Wilkinson, 544 U.S. 709, 710 (2005).

11. Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a).

12. Cutter, 544 U.S. at 723 (citation and internal quotation marks omitted).

13. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (“RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.”) (citation omitted).

14. Jova v. Smith, 582 F.3d 410, 415-16 (2d Cir. 2009) (quoting 146 Cong. Rec. S7775) (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA).

15. Cutter, 544 U.S. at 722-23.

16. Holt, 135 S. Ct. at 864 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780 (2014)).

17. Id.

18. See id.

19. See Benning v. Georgia, 864 F. Supp. 2d 1358, 1366 (M.D. Ga. 2012) (interpreting the findings of the First, Third, Fourth, Seventh, and Ninth Circuits to mean that prisons must have given consideration to and rejected alternatives to satisfy the narrow tailoring RLUIPA prong).

20. See Holt, 135 S. Ct. at 868 (Ginsburg, J., concurring) (“the government need not ‘do the impossible—refute each and every conceivable alternative regulation scheme’ but need only ‘refute the alternative schemes offered by the challenger’” (quoting United States v. Wilgus, 638 F. 3d 1274, 1289 (10th Cir. 2011)); cf. Bush v. Vera, 517 U.S. 952, 977 (1996) (“state actors should not be ‘trapped between the competing hazards of liability’ by the imposition of unattainable requirements under the rubric of strict scrutiny.”) (citation omitted).

21. See Holt, 135 S. Ct. at 860 (holding that a prison policy making a beard length exception for inmates with medical but not religious needs was not least restrictive).

22. See id. at 866 (“At bottom, this argument is but another formulation of the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.’”) (citation omitted).

23. See Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-3(c) (RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”).

24. See Cutter v. Wilkinson, 544 U.S. 709, 726 (2005) (“[S]hould inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition.”).