by Staci Cox 1

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.’” 4Deter­min­ing the sin­cer­i­ty of an inmate’s reli­gious beliefs is a “case-by-case, fact-spe­cif­ic inquiry . . . .” 5Though 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.


  1. 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.”).