Nunez v. Wolf, U.S. App. LEXIS 21772 (U.S. Ct. of Appeals, 3d. Cir., August 27, 2024) (Krause, J.)
Muslim inmate claimed the RLUIPA was violated by denying him religious accommodations to consummate his marriage and to have ongoing conjugal visits to engage in congregational prayers of visitors and to be circumcised. The Court reversed, saying that on all these matters the department of corrections did not satisfy its burden that the inmate could not be accommodated.
KRAUSE, Circuit Judge.
The freedom to exercise one’s religion, a right enshrined in the very first amendment to our Constitution, extends to all citizens of this nation, whether they are at liberty or behind bars. Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (per curiam). Building on that constitutional safeguard, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., provides heightened protection to inmates to ensure that they are not denied religious freedoms without a compelling reason. Here, Appellant Fernando Nunez, Jr. brought suit against a number of officials associated with the Pennsylvania Department of Corrections (the “DOC”) and claimed that the Pennsylvania state prisons in which he has been housed violated RLUIPA by denying him religious accommodations to consummate his marriage and have ongoing conjugal visits, to engage in congregate prayer with visitors, and to be circumcised. Concluding that the DOC had established compelling interests to deny those requests and that there were no less restrictive alternatives available, the District Court granted summary judgment in its favor. We conclude, however, that the District Court did not put the DOC to its burden, so we will vacate that judgment and remand for the DOC to have the opportunity to supplement the record in view of this opinion.
Congress made explicit in RLUIPA that, while the plaintiff “shall bear the burden of persuasion on whether the [challenged policy] substantially burdens the plaintiff’s exercise of religion,” the government bears the burden in all other respects. Id. § 2000cc-2(b). Thus, in practice, once the plaintiff shows that his religious exercise has been substantially burdened, “the burden flips and the government must demonstrate that the imposition of the burden on that person is the least restrictive means of furthering a compelling governmental interest.” Ramirez v. Collier, 595 U.S. 411, 425, 142 S. Ct. 1264, 212 L. Ed. 2d 262 (2022) (cleaned up).
As for the government’s burden, “[w]e do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety,” Cutter, 544 U.S. at 722, and it remains the case that RLUIPA “affords prison officials ample ability to maintain security,” Holt, 574 U.S. at 369; see Washington v. Klem, 497 F.3d 272, 283 (3d Cir. 2007) (“Interests of safety and health [*11] play a particularly important role in the institutional setting.”). Still, the government’s “mere say-so” is not enough to carry its burden, Holt, 574 U.S. at 369, and, where, as here, the government is required to demonstrate that its policy furthers a “compelling governmental interest” and is the “least restrictive means” to further that interest, Cutter, 544 U.S. at 717, the meaningful deference that traditionally attends prison’s policy decisions is not unlimited.
While the prison need not await the occurrence of a substantial disruption or other harm, it still bears the burden of demonstrating through “experience,” or other sources, that “the accommodation brings with it genuine [] problems that can’t be addressed at a reasonable price.” Yellowbear, 741 F.3d at 58. Thus, a prison cannot rely on bare “supposition,” Mast v. Fillmore County, 141 S. Ct. 2430, 2433, 210 L. Ed. 2d 985 (Mem), (2021) (Gorsuch, J., concurring), “conclusory” statements, or “speculation,” Ramirez, 595 U.S. at 429-30, to support its policy choices. Instead, as in the First Amendment context, where a “rigorous and fact-intensive” inquiry is required, Bruni v. City of Pittsburgh, 941 F.3d 73, 89 (3d Cir. 2019) (citation omitted), RLUIPA demands that the government “prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate,” Mast, 141 S. Ct. at 2433 (Gorsuch, J. concurring).
Together, these cases teach that a prison’s bare interest in “avoiding other and additional accommodations—a slippery slope—is usually insufficient,” Ackerman v. Washington, 16 F.4th 170, 187-88 (6th Cir. 2021), as “is a bureaucratic desire to follow the prison system’s rules” or “[s]aving a few dollars,” Schlemm v. Wall, 784 F.3d 362, 365 (7th Cir. 2015). Indeed, RLUIPA expressly contemplates that its strictures may “require a government to incur expense” to avoid burdening religious exercise. 42 U.S.C. § 2000cc-3(c). But on the other hand, “slippery-slope arguments might be persuasive when there is a ‘compelling interest in cost control or program administration,'” Ackerman, 16 F.4th at 188 (quoting Holt, 574 U.S. at 368)), so if the government can demonstrate—with evidence, not just say-so—that an accommodation would be too costly on its own or would snowball in a way that would meaningfully impede prison functions, it may still satisfy the compelling interest test.
1. Least Restrictive Means
To satisfy RLUIPA’s “least restrictive means” test, a prison must “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Holt, 574 U.S. at 364-65 (quoting Burwell, 573 U.S. at 728). This “standard is exceptionally demanding,” Burwell, 573 U.S. at 728, and requires the government, proactively, to identify and rebut less restrictive policy alternatives,6 Ramirez, 595 U.S. at 432.
The bottom line is: If a less restrictive means that satisfies the government’s compelling interest is reasonably available, the prison “must use it.” Holt, 574 U.S. at 365 (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 815, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)).
At bottom, the DOC has not made any evidentiary showing to move this interest from “broadly formulated” and “speculat[ive]” to compelling, for example, by even identifying the number of married inmates or estimating the costs of procuring additional space and staff. Ramirez, 595 U.S. at 427, 429-30; Washington, 497 F.3d at 283 (“[a] conclusory statement is not enough” to satisfy RLUIPA’s compelling interest test). While RLUIPA does not require prisons “to grant a particular religious exemption as soon as a few other jurisdictions do so . . . [c]ourts must hold prisons to their statutory burden” and cannot simply “assume a plausible, less restrictive alternative would be ineffective.” Holt, 574 U.S. at 369 (emphasis added) (citing Playboy, 529 U.S. at 824).
2. Congregate Prayer with Visitors
The DOC contends that denying Nunez’s request for congregate prayer furthers several compelling interests and summarily concludes that its existing policy, which permits Nunez to engage in quiet, seated prayer, is the least restrictive alternative. Again, the DOC satisfies neither prong of strict scrutiny.
3. Circumcision
Turning to Nunez’s final accommodation request, a religious circumcision, the DOC again has failed to carry its burden as to compelling interests or narrow tailoring.
…the DOC estimates that circumcision would cost the prison $3,500 but does not explain why this figure is cost prohibitive. Yellowbear, 741 F.3d at 59 (“[T]he prison does not even attempt . . . to explain how [the] costs impinge on prison budgets or administration.”); Ackerman, 16 F.4th at 187-88 (“[S]lippery-slope arguments might be persuasive when there is a ‘compelling interest in cost control or program administration.'” (quoting Holt, 574 U.S. at 368)).
The DOC also fails to rebut obvious alternatives to reduce its cost, like offering to split costs with Nunez or proposing a payment plan, see Ramirez, 595 U.S. at 432, or to explain why Nunez’s offer “to assume any medical or liability risks that may occur after the surgery” would not sufficiently mitigate expenses,20 Opening Br. 58; Mast, 141 S. Ct. at 2433.
To be clear, we are not holding that the DOC’s denials of Nunez’s requests cannot satisfy strict scrutiny if properly supported on remand. What we do hold is that this determination cannot be made on the current record and that, as we have now clarified the nature of its burden, the DOC should have the opportunity to supplement the record before renewing its motion for summary judgment. We remand for that purpose, and to avoid additional delay in the resolution of this case, we encourage the District Court to expedite those proceedings.
For the foregoing reasons, we will vacate the District Court’s grant of summary judgment and remand for further proceedings consistent with this opinion.
