Academic journal article Northwestern University Law Review

Deference and Prisoner Accommodations Post-Holt: Moving Rluipa toward "Strict in Theory, Strict in Fact"

Academic journal article Northwestern University Law Review

Deference and Prisoner Accommodations Post-Holt: Moving Rluipa toward "Strict in Theory, Strict in Fact"

Article excerpt


Imagine you are Billy Soza Warsoldier, a Cahuilla Native American. Your religious faith teaches that hair length symbolizes wisdom and requires that hair can only be shorn upon the death of a relative. You sincerely believe that cutting your hair will cost you knowledge and render you unable to join your ancestors in the afterlife. In fact, your hair has not been cut for over thirty years. Now, imagine that you are incarcerated, and the prison requires all prisoners' hair to be cut short because long hair could be used to hide contraband.1 Can the prison require you to violate the tenets of your religion by cutting your hair?

The Religious Land Use and Institutionalized Person Act (RLUIPA)2 provides that the government may not substantially burden a prisoner's religious exercise unless the burden is "in furtherance of a compelling governmental interest" and is "the least restrictive means of furthering that interest."3 Therefore, if the prison failed to allow you an accommodation, you could challenge that decision in court.4 But the location of the prison greatly impacts your chances of success. If the prison is located in the Ninth Circuit, which has closely examined prison policies to determine if they survive RLUIPA's strict scrutiny test,5 then it is more likely that a court would find RLUIPA requires an accommodation for your long hair. If the prison is located within the Sixth Circuit, on the other hand, you may be more likely to lose your claim because that particular circuit has afforded significant deference to prison officials' assertions that a given policy is the least restrictive means of furthering a compelling governmental interest.6

This confusion in the lower courts stems from the Supreme Court's contradictory instructions regarding the deference due to prison officials' determination under RLUIPA. The Court first addressed the constitutionality of RLUIPA in Cutter v. Wilkinson.1 While holding the statute constitutional,8 the Court noted that lower courts should apply "due deference" to prison officials' determinations of compelling interest and least restrictive means,9 even though these two terms are traditionally understood to mean that strict scrutiny applies.10 This contradiction led some courts to be deferential to prison officials' determinations in applying the compelling interest and least restrictive means test.11 Other courts, however, consequently took a "hard look" approach, which is closer to true strict scrutiny, when analyzing prison policies under RLUIPA.12 PostCutter, therefore, a prisoner might not get an accommodation to which she is statutorily entitled and may be forced to violate sincerely held religious beliefs at the behest of the government, simply due to an accident of geography.

In 2015, the Court considered RLUIPA again in Holt v. Hobbs to determine whether a no-facial-hair policy violated the rights of a Muslim prisoner who wished to grow a half-inch beard pursuant to his faith.13 Though this presented an opportunity to clarify whether courts should apply strict scrutiny or be deferential to prison officials' claims, the Court failed to discuss Cutter's deference instruction at all and instead only noted that "unquestioning deference" is not permitted.14 Because Holt did not explicitly overrule Cutter, the Supreme Court has endorsed two seemingly contradictory standards. In Cutter, the Court asked for deference to be given to prison officials, but in Holt, the Court hewed closer to strict scrutiny and noted only that courts should not give officials "unquestioning deference."

This Note provides the first comprehensive analysis of Holt's application by the lower courts since the case was decided. A quantitative examination of each RLUIPA decision citing Holt and Cutter in this period shows that lower courts have generally heeded Holt's instruction to undertake a more fact-specific inquiry once it determines a prisoner's religious exercise has been substantially burdened (a seemingly higher bar post-Holt). …

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