First Amendment - Free Exercise in Prisons - Fifth Circuit Holds That Prison's Prohibition on All Objects over Twenty-Five Dollars Did Not Violate Prisoner's First Amendment Rights or Substantially Burden His Religion under RLUIPA

Harvard Law Review, February 2013 | Go to article overview

First Amendment - Free Exercise in Prisons - Fifth Circuit Holds That Prison's Prohibition on All Objects over Twenty-Five Dollars Did Not Violate Prisoner's First Amendment Rights or Substantially Burden His Religion under RLUIPA


The First Amendment forbids Congress from enacting a law prohibiting the free exercise of religion. (1) Nonetheless, the Supreme Court has maintained that "[l]awful incarceration brings about the necessary ... limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." (2) As such, the Court has ruled that the Free Exercise Clause does not require prison officials to provide exemptions from neutral prison rules in order to accommodate particular inmates' religious beliefs where such rules are "reasonably related to legitimate penological interests." (3) But although religious accommodations are not usually constitutionally mandated, Congress can choose to enact laws that accommodate religious beliefs provided the enactments do not exceed its constitutional authority. (4) Congress did just that in passing the Religious Land Use and Institutionalized Persons Act of 2000 (5) (RLUIPA), which states that no government shall impose a substantial burden on the religious exercise of a prisoner unless the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering that interest. (6)

Recently, in McFaul v. Valenzuela, (7) the Fifth Circuit held that a prison's prohibition on objects costing more than twenty-five dollars, which prevented a prisoner from obtaining Neo- Pagan medallions, did not violate the prisoner's right to free exercise of religion because the prisoner had "alternative means of exercising [his] rights," (8) nor did it violate the prisoner's rights under RLUIPA because the prohibitions did not "impose a substantial burden on [his] religious exercise." (9) This case was rightly decided on First Amendment grounds under Supreme Court precedent, and was probably correct under RLUIPA, given the slim amount of evidence the prisoner presented in his favor. But the decision demonstrates two flaws in the enterprise of granting religious exemptions to neutral prison policies: (1) prisoners can face severe evidentiary challenges in making such claims, and (2) the evidentiary burden is particularly high for prisoners with unique religious beliefs.

In 2009, Anson McFaul was a prisoner in the Preston E. Smith Unit of the Texas Department of Criminal Justice. (10) McFaul claimed that he was a Celtic Druid, a religion "involv[ing] periodic 'ritual salutations to the sun' at specific times of day." (11) In addition, he stated that he needed "a bone skull necklace, a sun triskele pendant, and a mirrored black pendant" to practice his faith properly. (12) McFaul claimed that he was "in grave danger" without those items. (13) The prison denied McFaul's request, citing a prison policy forbidding possession of objects worth more than twenty-five dollars. (14)

McFaul filed suit in the Northern District of Texas, alleging that prison officials violated his constitutional and statutory rights by prohibiting the religious items. (15) Magistrate Judge Koenig issued a report holding that McFaul failed to state a First Amendment claim, in part because the regulation did not "entirely stifle[]" the prisoner's religious practice, since McFaul was allowed to possess two other Neo-Pagan medallions. (16) She also found that McFaul did not present sufficient evidence showing that the prison regulation placed a substantial burden on his exercise of religion under RLUIPA. (17) Magistrate Judge Koenig dismissed McFaul's other claims. (18) The district court adopted the report and granted summary judgment for the defendants. (19)

The Fifth Circuit affirmed. (20) Writing for a unanimous panel, Judge Smith (21) held that McFaul had failed to state a claim under either the First Amendment or RLUIPA. (22) Regarding the former, Judge Smith evaluated the reasonableness of the prison's restriction in light of the four factors the Supreme Court outlined in Turner v. Safley (23): (1) whether the regulation connects to "legitimate governmental interests"; (2) whether the inmate has "available alternative means of exercising" his rights; (3) the impact of accommodation on prison resources; and (4) the presence of ready alternative policies to fully "accommodate the prisoner's 'rights at de minimis cost to valid penological interests. …

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