Mark Hamilton v. Dora Schriro

the deficien- Hable for to hold her inequitable HAMILTON, Appellee, Mark Juan cy- America, Intervenor, States United 6013(e)(1)(B): Grossly Er- 26C. U.S.C. v. Spouse Items One roneous SCHRIRO; Jody Delo; Paul Dora not Court did address Tax Jackson; Armontrout, Bill from a resulted understatement whether the Appellants. at 8025-3. grossly item. T.C.M. erroneous the Free of Re for Exercise Coalition item is defined grossly A erroneous ligion; Dupage House of Koinonia (A) gross attributable any item of income Fellowship. County and Justice gross is omitted spouse which to such No. 94-3845. income, and Appeals, United States Court credit, (B) deduction, or any claim of Eighth Circuit. amount for spouse by such basis or law. Sept. is no basis in fact which there Submitted 12, 1996. 6018(e)(2). Therefore, Decided Jan. in order 26 U.S.C. items of deduction

to estabhsh Rehearing Suggestion for erroneous, show that petitioner must grossly Rehearing En Banc 1, 1996.* Flynn April Denied in fact or law. they had no basis Comm’r, T.C. 1989 WL Comm’r,

(1989); Douglas v. 86 T.C. Comm’r, (1986); Purcell WL (1986), aff'd, WL 22087

86 T.C. denied, Cir.1987), cert.

826 F.2d issue, argued to Tax although

This

Court, argued in this briefed undoubtedly party, either specifically not reach the Tax did Court underlying Htiga- decision.

issue its HabiHty tax of both involving the basic

tion appealed to

Mr. and Mrs. Resser never circumstances, the these

this court. Under to remand the case

appropriate course is proceedings. Tax for further

Conclusion reasons, foregoing we reverse

For the remand of the Tax Court and

decision opinion. with this

proceedings consistent AND

REVERSED REMANDED.

* Judge Judge en banc. Judge McMillian and Arnold, Chief rehearing grant suggestion for Muiphy

ciáis) First violated by requiring him free to a by denying him access his hair cut Religious Free- Applying lodge. (RFRA), 42 U.S.C. Act Restoration dom enjoined 2000bb, district regula- enforcing a hair officials weekly provide a to them and ordered tion ap- officials ceremony. Prison lodge sweat poli- regulation and peal. Because to right Hamilton’s violate do cy at issue by the protected religion free RFRA, we reverse. and Amendment First BACKGROUND I. maximum at the is incarcerated Hamilton (Potosí).1 Center

security Potosí Correctional cross-denominational facility provides buildings. inside facilities religious al- Potosí are inmates Indian American regular- for together gather pray, to to lowed services, meet with outside to ly scheduled leaders, to obtain and spiritual library. American from the reading material carry medicine to allowed are also Indians and items containing ceremonial bags kinnikinnik pipe and a ceremonial access willow, consisting of (a “tobacco” ceremonial cedar). does Potosí sage and grass, sweet lodge ceremo- lodge, sweat a sweat not allow officials Potosí premises. on the fires ny, or of Correc- Department a Missouri enforce hair prohibits regulation that tions Attorney III, Switzer, Assistant Hamil- inmates. male 0. for beyond Erwin the collar Attorney his Boresi, violated (Susan Assistant D. General asserts ton MO, Louis, appel- free exercise brief), General, St. on First American and other denying him religion lant. and lodge a sweat access prisoners Indian Justice, Millett, Department A. Patricia hair with the compliance requiring their (David DC, G. Ott argued Washington, length regulation. MO, appeared on Clayton, Gallego, R. Dean seek- action present brought the Hamilton Hamilton), for U.S. appellee brief attorney relief, damages and injunctive ing dis- were BEAM, damage claims McMILLIAN, Hamilton’s fees. Before A appeal. us on not before HANSEN, Judges. Circuit missed March 29 hearing held was BEAM, Judge. Circuit demands. equitable Hamilton’s Indian, Hamilton, American Juan Mark Length A. Hair the Civil present action initiated Indian American testified 1983, alleg- Hamilton 1871, 42 U.S.C. Rights Act gift from hair is believe offi- males (prison prison officials ing that Missouri time at the was incarcerated he where Jefferson at the incarcerated Hamilton hearing in 1994. action. Hamil- initiated City prison when he Potosí, subsequently transferred ton was Creator and is to be cut when Hamilton testified that the sweat lodge someone close to them ceremony dies. Hamilton and is instrumental practice other American Indian long inmates had purifies because it partici- but were forced pant. to cut it at the Potosí prison. Purity, according Hamilton, is a prerequisite testified that at to participating one time his hair in other reli- gious long. ceremonies, four-feet such as prayers offering smoking pipe. sacred Hamilton also Prison officials long testified po- participants testified that in these ceremo- ses a threat safety security. nies must be seated outdoors on ground. Stephen Long, the Assistant Director of Hamilton stated that if he could not have Adult Institutions for the Depart- Missouri access to a ceremony, he would Corrections, ment of testified that inmates not and practice any could not aspect of his contraband, conceal including danger- religion. materials, ous long their hair. Long stat- Hamilton deposition introduced testimony ed that without the hair length regulation, prison from administrators in a few other prison staff required would be perform states that respective their facilities conduct frequent more inmates, searches of which lodge sweat ceremonies any without major could cause conflicts between staff in- problems. prison These administrators con- mates. Searching an long inmate’s hair they ceded that were aware of prob- some difficult, would be if especially the inmate’s lems, including rumors of sexual impropriety long hair were braided. Long also testified during the lodge ceremony. sweat pris- No prison that the had tried to gangs by control oner had filed a complaint formal and the not allowing to identify them themselves prison guards were unable observe what colors, through clothes, or carvings. hair He actually occurred lodge. inside the testified that exempting American Indians The prison Potosí that testified length the hair regulation could cause lodge sweat requested by Hamilton raised by resentment the other inmates. con- He concerns of safety and security. Spe- cluded that there no alternative to the cifically, Long testified implements policy short hair can requested by Hamilton to conduct the sweat easily be searched and remain free of contra- lodge ceremony, such as axe, a shovel and an Finally, band. Long noted long hair could be used assault other inmates and could also cause problems with inmate identi- prison guards. Long further testified that fication. problems arise when inmates in a maximum security prison, who typically are prone to B. Lodge Sweat violence, congregate in groups. Luebbers, Alan The sweat Associate lodge Superinten- ceremony primarily takes Potosí, dent at place testified that inside inmates who dome-shaped structure con- work with tools are supervised structed of bent poles willow and covered guards. The secluded hides, nature of blankets, sweat or tarps. Rocks heated lodge would supervision make such impossi- in a separate placed fire are in the center of ble, thus providing the inmates op- with an lodge. During ceremony, several portunity to inmates, assault other tools make (to are used including an split axe weapons, drugs, use dig tunnel, firewood), (to engage a shovel transfer the hot rocks activity. homosexual Normally, from the fire to the lodge) sweat and deer guard posted is at religious functions to ob- Participants, antlers. nude, who are pour serve the inmates and safety. ensure their water on the hot steam, rocks to create causes them to Throughout sweat. Gary Tune, cere- the Chaplain at the Potosí mony, the lodge remains covered to retain Center, Correctional testified that if a sweat the steam and keep light. out the lodge were built it would be the only facility ceremony lasts between one and three hours. single devoted to a religion. Assistant Di- When use, not in the covers are Long rector expressed concern over al- but removed poles willow remain intact. lowing Hamilton, inmate, to decide who lodge. appeal, On officials contend He may not use the sweat may or (1) that: is not sincere his lodge may Hamilton providing a sweat concluded religion; American Indian among the inmates. adherence cause resentment regulations policies do Jackson, Chaplaincy Coordinator Jodie substantially burden Hamilton’s free exercise Corrections, Department of for the Missouri beliefs; of his the limitations American Indian inmates that some testified imposed lodges sweat practiced prisons state at other Missouri furthering the least restrictive means ground on the without religion outdoors maintaining prison compelling interest of lodge. prison- Those benefit safety security. officials also special prayers, observed sea- ers offered circumstances, any assert the con- sons, pipe. ceremonial Jack- and smoked the imposed district court on who dition requested had not son testified may participate lodge ceremony in the sweat practice outdoors permission unprecedented and unreasonable. that at other institu- in a manner similar to stated, however, tions. Jackson II. DISCUSSION Department Corrections Missouri action, any As with section 1983 if request a it were made. such consider (1) whether the conduct must determine: regula “that the court found The district by person complained of committed a in this lawsuit with policies tions at issue and law; acting of state under color ... practice of his reli regard plaintiffs to deprived person conduct a of a whether this substantially plaintiffs exercise gion [burden] immunity by right, privilege, or secured Schriro, religion.” Hamilton v. 868 of his or laws of United States. Constitution (W.D.Mo.1994). 1019, 1024 dis F.Supp. Gunter, 1983; 42 Thomas v. 32 U.S.C. safety, “[ajlthough secu trict court held that (8th Cir.1994). F.3d 1259 Because the may to rity be shown cost concerns acting under color of officials were governmental interests law, requirement of this two- state the first setting, not shown defendants have Gunter, F.3d part is satisfied. 32 practices by used regulations and Department of Corrections are the Missouri requirement, furthering Turning the second to restrictive means least originally enjoined 1983 action was Hamilton’s section Id. The district court interest.” the claim that the officials length regulation and based on enforcement deprived him of his First Amendment Hamilton allow ordered religion.2 his After including weekly free exercise of practice religion, his initiated, however, Congress ceremony. 1020. In a this action was lodge sweat Restoration order, Religious Freedom district court awarded enacted subsequent (RFRA), 42 Act U.S.C. 2000bb. district of 1993 attorney to Hamilton. The fees retroactively. Brown-El applies See months after the sweat RFRA “that for 6 stated Cir.1994). (8th Harris, 69 operational ceremony v. F.3d lodge and the becomes Therefore, Hamilton’s section 1983 action participation implemented, separate encompasses theories: ceremony those now two be limited to who shall constitutionally protected deprivation of his of the Native American are sincere adherents exercise right to the free approved First Amendment religion who have been or those (2) deprivation of religion; his majority of Native his participation vote right, statutorily protected practice the Native American Americans who religion. general See participate the free exercise of religion are scheduled Bd., Schriro, County ly v. Sch. ceremony.” v. No. Goodall Stafford — denied, (4th Cir.1995), (W.D.Mo. 168, 170 cert. Judgment F.3d Nov. Amended -, L.Ed.2d 661 21, 1994). U.S. S.Ct. prohibiting the religion, or free provides pertinent establishment 2. The First thereof; U.S. amend. I. respecting Const. "Congress exercise part: make no law shall (1996).3 We hold that Hamilton has failed both reason of separation powers deprivation establish under either his highly practical con- judicial considerations of stitutional or statutory right to free competence, exercise peculiarly judicial ill-suited to of religion.4 Because we hold resolution, that Hamil- and ... accordingly, courts should ton’s section 1983 action fails under either be loath to judgment substitute their for that ” analysis, constitutional or RFRA we need not officials and administrators.’ Iron do consider the constitutionality of Eyes Henry, 907 F.2d Cir. RFRA.5 1990) (quoting Pitts v. Thornburgh, 866 F.2d

1450, 1453(D.C.Cir.1989)).

A. Analysis Constitutional An inmate challenges who the consti Prison inmates “do not forfeit all tutionality prison regulation of a policy protections by reason of their that limits practice must first conviction and prison.” confinement in Bell establish that it infringes upon sincerely v. Wolfish, 520, 545, religious held Blackwell, belief. Hill v. (1979). Moreover, L.Ed.2d 447 (8th Cir.1985). 342-43 pres In the “federal courts cognizance must take case, ent we assume that Hamilton’s valid constitutional prison inmates,” claims of beliefs sincerely held. See Eyes, Iron Safley, 78, 84, Turner v. 482 U.S. 107 S.Ct. 907 F.2d at 813 (determining sincerity 2254, 2259, (1987), L.Ed.2d which in person’s religious belief “is factual in na clude actions based on free rights ture and subject thus is to the clearly errone protected by the First Amendment. See Pell review”). ous standard of Procunier, 817, 822, 41 L.Ed.2d 495 prisoner’s A free exercise claim is “ However, ‘[l]awful “judged incarceration under a ‘reasonableness’ test less brings about necessary withdrawal or restrictive than that ordinarily applied to al many limitation of privileges rights, and leged a infringements of fundamental constitu justified by retraction the considerations un tional rights.” Shabazz, O’Lone v. Estate of ” derlying penal our system.’ Jones v. 342, North 349, 2400, 2404, 107 S.Ct. 96 Union, Carolina Inc., Prisoners’ Labor 433 (1987); L.Ed.2d 282 Turner, see also 482 119, 125, 2532, U.S. 97 2537, S.Ct. 53 87-91, L.Ed.2d U.S. at 107 S.Ct. at 2260-63. (1977) 629 (quoting Johnston, Price Turner, v. 334 Court articulated the 1049, U.S. 1060, 68 S.Ct. 92 applicable L.Ed. constitutional test in the context of (1948)). “The fact of confinement prison and regulations: prison “when a regula the needs of the penal institution impose tion impinges on inmates’ constitutional limitations on rights, constitutional including rights, regulation is valid if it is reason those from derived Amendment, First ably legitimate related to penological inter implicit which are Jones, in incarceration.” ests.” 89, 482 U.S. at 107 S.Ct. at 2261. U.S. 97 S.Ct. at 2537. Further Prison security is one of penological these more, “‘issues of prison are, management O’Lone, interests. 482 U.S. at 107 S.Ct. 3. Some courts and 5.See, apparently commentators e.g., in- United States Indus. terpret legislatively RFRA as creating compel- a Org., U.S. ling applied interest test that is to be in all free (1948) (Frankfurter, 92 L.Ed. J., concur- cases, thereby completely supplanting (" ring) questions brought 'No can be before a prior constitutional standards. if Even judicial greater tribunal of delicacy those than authority has the approach, mandate such an constitutionality involve the legislative of a Hamilton’s claim fail would under the test set act.... may [I]f the case be determined on out in RFRA. See Part II.B. infra points, other just respect legislature for the requires, obligation of its laws should Although present district court not unnecessarily resolved wantonly and assailed.’ Ex case under necessary parte we think Randolph, 11,558 it 20 Fed.Cas. No. address constitutional claim because the dis- Brock. over, (C.C.D.Va.1833).”). 478-79 More- suggested trict that it would have found for if were held to be unconstitutional in Hamilton even analysis. future, constitutional that determination would affect Hamilton, 863 F.Supp. at 1022. validity holding of our present in the case. lodge was based access inmate sweat ing the considered to be factors 2404. Several limitations,” which did “security-related on pris aof reasonableness evaluating the when sufficiently specific basis provide valid, not (1) there is whether regulation: relationship exist- rational if some determine regulation between connection rational security). and of access (2) the denial interest; ed between governmental the asserted present factors the Turner Applying exercising the for means alternative whether officials’ prison case, conclude we prisoner; open to right remain lodge to a sweat access Hamilton’s staff, denial other regulation impact of peno- legitimate rationally related re was inmates, allocation of security at safety and logical interests ready availability of sources; and Turner, Potosi. regulation. alternatives 89-91, 107 at 2261-63. S.Ct. U.S. other in First, Hamilton prohibiting completely enclosed meeting in a mates from Regulation Length

1. Hair preventing rationally connected area Tur applied occur previously fear would have type We harmof prisoner’s Second, Indian lodge. American alternative to an factors ner in the violated his regulations for exercis open remain claim means ex right to free carrying a constitutionally guaranteed including medi religion, ing his items, having that such concluded religion and ceremonial bag containing ercise cine kmmkinnik, muster. pipe passes regulation to a ceremonial access prior Our in 813-16. Indian F.2d at American other Eyes, praying with Iron Ham abundantly Third, accommodating clear Hamilton’s it make decisions mates. challenge to the a sweat request ilton’s constitutional Id.; staff, see in other must fail. length regulation impact on adverse (8th Cir. F.2d 1086 to the risk Long, mates, due resources also Sours Moore, ceremony, 946 F.2d as 1992) curiam); Kemp v. (per assaulting participants denied, Cir.1991) curiam), resulting cert. (per possible resentment well 1958, 118 facility. L.Ed.2d 917, 112 of an exclusive the erection Therefore, “point that under to an conclude failed to has Finally, Hamilton criteria, pris free exercise fully Hamilton’s accommodates the Turner that alternative validity of the valid cost to outweighed at minimis right rights de oner’s Turner, at F.2d 816. U.S. at Eyes, 482 See Iron regulation. penological interests.” 91, 107 2262. Lodge 2. Sweat Therefore, constitutional that the we hold regula prison As ac- section underlying Hamilton’s claim the issue resolved

tions, previously we it clear make prior decisions Our tion fails. of access official’s prison a denial of whether regulations, enforcing prison that Indian an American lodge violates case, to a sweat present issue one at such as the First right under free exercise inmate’s do lodge ceremonies prohibiting sweat (affirming F.2d 588 Kemp, Amendment. right to constitutional an inmate’s not violate prison a denying court’s decision the district Additionally, the religion. free exercise require to con order for an request er’s articulated analysis applicable case, a recent lodge). In a sweat struction supports in Turner a acknowledged such deter however, failure prison officials’ our conclusion the restric upon whether “depends mination lodge does awith provide Hamilton to bears by prison authorities imposed tion of reli- free exercise right not violate aof to the furtherance relationship rational gion. Thomas interest.” penological legitimate Cir.1994) 1258, Gunter, F.3d Analysis B. improperly district court (concluding that the RFRA, which 1993, enacted prison au summary judgment for granted compelling interest-least statutorily created deny- justification thorities 2000bb-1(b). restrictive means test6 applied to be to all Therefore, primary cases where free exercise of is sub question before us is whether the district stantially burdened. U.S.C. court erred in holding prison policies that the 2000bb(b)(1). purpose The stated of enact regulations at issue were not the least ing RFRA was “to restore the compelling restrictive achieving means of compelling interest test as forth set in Sherbert v. Ver interest safety security. ner, 374 U.S. 83 S.Ct. Yoder, and Wisconsin v. 406 U.S. The district court’s conclusion 32 L.Ed.2d 15 that the failed satisfy officials guarantee application its in all cases where statutorily imposed test under RFRA is a free exercise of religion is substantially bur question of subject law to de novo 2000bb(b)(1).7 dened.” 42 U.S.C. In addi review. While district findings court’s tion, Congress intended “to restore tradition subject fact clearly to a erroneous stan protection al prisoners’ afforded claims review, dard of the ultimate conclusion as to prior O’Lone.” S.Rep. No. 103d regulation whether deprives Hamilton of Cong., (1993), 1st Sess. reprinted in 1993 his free question is a of law (Senate U.S.C.C.A.N. Report). subject Hill, to de novo review. See See also 139 Cong.Rec. S14468 (daily ed. Oct. F.2d find applying We the least 27,1993) (recording the Senate vote rejecting restrictive means prong of RFRA also raises proposed amendment that would have ex of statutory construction, issue which is prisoners’ cluded free exercise claims from subject to de novo review. generally See the compelling RFRA). interest standard in Department Bowen, Social Serv. v. Congress intended for provide RFRA “to 1035, 1037(8th Cir.1986). claim or persons defense to whose exercise is substantially govern burdened by Prer-O’Lone ease law and legisla- RFRA’s 2000bb(b)(2). ment.” 42 U.S.C. history tive indicate applicable must be purposes For construed in setting, analysis, of our giv- we assume ing due regulations expert deference to policies judgment issue present substantially ease administrators. See generally burden Hamil Abbott Cooper, Comment, ton’s religion. Hamilton, exercise of his Dam the RFRA at F.Supp. at 1024. Prison The district Gate: The Religious acknowl Freedom Resto- edged “safety, security Impact and cost ration Act’s con Litiga- Correctional may cerns tion, shown be compelling govern 56 Mont.L.Rev. 325 legisla- mental interests in setting.” history tive of RFRA also shows that while Pell, See also 94 S.Ct. at intended for the same 2804 - 05. Under test in to apply prison- statute bear the burden of demonstrating that the ers non-prisoners, as well as the of outcome regulation is the least restrictive means analysis of depend would upon the context. achieving a compelling interest. 42 U.S.C. It was noted in the Report Senate that: provides 6. The part: statute in relevant 2000bb-1(a), (b). 42 U.S.C. (a) general In Government shall not substantially burden a 7. enacted response RFRA the Su- person's religion exercise of even if the burden preme holding Div., Court's Employment Dep't general results from a rule of applicability, Smith, Oregon Human Resources v. 494 U.S. of of except provided (b) in subsection of this 872, 3, 1595, 3, 886 n. 110 S.Ct. 1604 n. 108 section. (1990), L.Ed.2d 876 "generally applicable, that (b) Exception religion-neutral laws have that the effect of bur- may Government substantially per- burden a dening particular religious a practice need not be son’s exercise of if it demon- justified by compelling a governmental interest.” application that strates of burden to the 2000bb(a)(4) 42 U.S.C. Smith, (finding that in person— Supreme "the virtually Court eliminated the re- (1) is in furtherance of govern- quirement government justify burdens interest; mental religious imposed by laws neutral least restrictive means of further- religion”). toward ing compelling governmental interest.

1553 in the record evidence of substantial absence Act Restoration Freedom Religious exaggerated have testing that the officials to indicate standard one establish considerations, courts on reli- to these infringement response of Government claims however, judg- test, expert to their single ordinarily defer This should practices. gious 827, 94 regard to at 417 U.S. interpreted with matters.” in such be ment should added); case. Bell in each see also (emphasis circumstances at 2806 relevant S.Ct. 1861, 520, 60 99 S.Ct. Wolfish, 441 U.S. 9, at v. 1993 U.S.C.C.A.N. at Report Senate Therefore, (1979). prior to even intended re- L.Ed.2d Thus, while out in expressly set impose a test O’Lone, intend the reasonableness it did voke defer- O’Lone, one afforded Supreme Court than standard rigorous more Therefore, administra- prison judgment Id. of prior to O’Lone. to the applied ence guidance prison provides validity useful of a evaluating law ease when pre-O’Lone tors Abbott, RFRA and test in interpret Thornburgh v. on how regulation. See case. present 411, to resolve 401, how 109 S.Ct. U.S. (in the reason- recognized adopting long has Court L.Ed.2d Supreme prison and overrul- judgment in Turner set out to defer ableness

the need validity evaluating Martinez, “We do not stated: when ing administrators need, in- should, impinges regulation that Martinez believe See, e.g., rights. Amendment First subjecting mate’s the decisions read as 404-05, 396, Martinez, 416 U.S. means’ Procunier restrictive ‘least to a strict 94 S.Ct. Turner, 107 S.Ct. at at test.”); 482 U.S. held, among other Martinez, the Court 2260-61.8 regula- censorship mail things, that pre-O’Lowe applied the We have 415-16, 94 S.Ct. at at Id. invalid. tion was prisoner’s First of a in the context Court test Nevertheless, Supreme Court 1812-13. exercise of free “[Cjourts to deal with equipped ill are noted: 340-43; Hill, Rog at 774 F.2d religion. See urgent problems increasingly (8th Moreover, Cir. Scurr, 676 F.2d and reform.... ers administration involved, 1982) (“[Wjhen of institu maintenance institutions penal where state issue, for def- prison officials a further reason security is at courts federal tional authorities.” within appropriate wide latitude ordinarily erence to must have Jones, limitations.”). at 1807. 94 S.Ct. appropriate at to make 2537, the Court O’Lone, test that applied Thus, prior prohibited prison regulations upheld particular for a balancing the need required unions, solicita- labor prisoners’ meetings free the invasion regulation union, mailings and bulk join Hill, tions to caused. restriction dom that sources from outside concerning the union Pell, (citing F.2d at noting challenge, against a First Amendment Murphy v. 2804-05); see wrong “got off on lower court Corrections, Dep’t Missouri appropriate deference giving by not foot ... Cir.1987). Report The Senate administrators decisions to restore intended shows that peculiar and recognition appropriate balancing test: confine- penal of circumstances restrictive balancing O’Lone, a courts used to Prior Pell, the in- rejected Court In the ment.” free exer- an inmate’s cases where test in challenge to the First mates’ by institu- were burdened rights cise interviews, noting judg- on media ban regulations based regulation; tional pecu- security “are prison regarding ments “highest the of concerns upon penological professional province and liarly within claims. outweigh an inmate’s and, order” officials, of corrections expertise pris applied outside dard different "persuaded ... circuit was 8. Another Franzen, Madyun F.2d Pell, on.” [the Wolfish, and reasoning of Martinez denied, Cir.), U.S. cert. prisoner free exercise required] pre-O'Lone test L.Ed.2d with a stan- judged in accordance [to] claims order, good security discipline, Report Senate 1993 U.S.C.C.A.N. at and consis- safety security peno- 1899.9 Prison and are tent of with consideration costs and limited logical highest of concerns order. resources. balancing This test mandates Report at Senate U.S.C.C.A.N. rights limitations on free exercise “be no (footnote omitted). fact, 1899-1900 greater necessary govern protect than to rejected proposed amendment that Senate Scurr, 676 F.2d involved[.]” mental interest prisoners have excluded from the Martinez, (citing at 1215 Procunier scope finding express of that such an 1800, 1811, necessary exclusion was because courts (1974)). context, however, prison In the extremely prison had been deferential to au- prison ordinarily must officials have wide Cong.Rec. (daily thorities. See S14467 appropriate latitude within which to make 1993). ed. Oct. Senator Danforth con- security. limitations to maintain institutional test, “RFRA cluded that mandates a uniform Id. This is because “central to all other anot uniform result.” Id. goals corrections is the institutional consider Therefore, pr both e-O’Lone security ation of within internal the correc legislative case law and the relevant Pell, tions facilities themselves.” 417 U.S. at history applying indicate that a court RFRA 823, 94 S.Ct. at 2804. give must expertise due deference of greater necessary” We find the “no than in prison establishing regulations officials functionally requirement synonymous to be safety prison security, maintain and even prong

with the “least restrictive means” applies “heightened” when the court stan- prison RFRA applied test when prison hold dard review.10 We prison context. Because we are faced with a present officials in the case demonstrated case where the maintenance institutional prison regulation policy that the and at issue issue, security give is at we must maintaining least restrictive means of officials wide latitude within which make prison’s compelling institution- appropriate limitations. safety security. al and interpretation application of Our and prong least restrictive means Length Regulation 1. Hair legislative test consistent with the statute’s noted, prison As earlier officials tes history. legislative Significantly, history prison security requires tified that them to RFRA recognizes necessity for courts prevent concealing inmates from contraband deferring judgment to continue long identifying in their hair prison officials. particular gang. officials also Judiciary] The committee [on the does not preventing testified that male inmates from intend impose the act a stan- [RFRA] growing longer than collar dard that would exacerbate the difficult way is the least restrictive to achieve that complex challenges operating goal because no viable alternatives exist. prisons jails Nation’s in a safe and Accordingly, secure prior manner. the commit- Our supports case law the conclusion expects that may tee will courts continue enforce giving the tradition of regulation due deference such as the one at issue in experience expertise jail present Eyes, case. Iron Cf. in establishing necessary administrators (applying 815-16 the reasonableness test set regulations procedures regúla- maintain out to a hair length O’Lone Although course, say were reviewing there several versions of the 10. Of this is not to that a O'Lone, prior applicable generally accept justification see court must articulated Schnabel, Comment, Mary Religious A. satisfy Free- authorities in all cases. order to Dilemma, RFRA, prison dom Restoration Act: A Prison's 29 their under burden authorities (1993), Willamette 323 we to conclusory L.Rev. look Su- must do than more offer statements preme precedent, legislative post RFRA's histo- and hoc for their rationalizations conduct. ry, guidance. and Report our own case law for Senate 1993 U.S.C.C.A.N.at 1900.

1555 The district in RFRA. pelling “[a]ny other solution that concluded tion we to the deference give due cost failed to de minimis court than a at more come would interests”).11 pre- testimony long hair In an anal- that officials’ prison penological to valid pre- security held, safety situation, prison a risk to we sented ogous could standard, prison officials means of that restrictive no viable less and that O’Lone wearing reli- from inmates prohibit achieving goal Muslim that existed. meetings prayer robes outside caps and gious to con- easy it too made attire such because Lodge 2. Sweat Scurr, at 1215. F.2d contraband. ceal to that prison officials asserted The expla- prison authorities’ stated We they prevent must security prison maintain reasonable, particular- “eminently nation was other, escaping, assaulting from each inmates person- operating fact that in ly view engaging in homosexual using drugs, and limited.” nel is that a testified prison officials conduct. reason- merely “eminently more than It is lodge sweat Indian American traditional pro- security prison to maximum for able” a opportunity provide inmates with would in long hair which having from inmates hibit being seen in activities without engage these weapons. they conceal contraband Moreover, prison offi guards. by prison Further, important for it is compelling. It is specific inmates providing that cials testified inmates prevent prison administrators facility exclusive their own gangs particular identifying with as an act to other inmates appear would safety and style. hair through their to resentment. would lead favoritism offi- by prison expressed security concerns officials, prohibition According prison experi- collective on their based cials were ceremony the least restric is facilities. administering correctional ence safety and ensuring prison means tive weighty concerns. are valid and These has refused security Moreover, less restrictive is no viable there ceremony any type of modified consider these concerns.12 addressing means pray allowed to would participants be where court the district Therefore, that we conclude opaque ground without outside on the application of interpretation in its erred covering.13 com- prong of the means restrictive the least way only plausible to meet these pears to be prior argues our decision 11. Hamilton concerns, Cir.1975) require- Burns, (8th safety thus satisfies F.2d Tetenid v. be means available length regulation. Hamil restrictive that the least dispositive hair ment interests”); misplaced. Teter- achieve Diaz on Tetenid used to ton’s reliance ud, (E.D.Tex.1994) Collins, F.Supp. reason advanced that “the noted opin long regulation was the Warden's hair support ion, ("The hiding potential of contraband proof, by empirical unsupported through regulation except a cannot be vitiated requirements neces short."). reidentification Phipps, hair net and kept district that hair be long allowing would create “[wjhile sitated recognized other methods court in officers correction ‘hassle’ between used, constantly searching in- might such as be Hill, 361; Id. at see mates.” contraband, im- would such means be mates for on the basis (distinguishing Tetemd 341-42 likely constitu- just to burden practical and regulation justification for the [W]arden's “the - F.Supp. 736. These tional interests.” legitimate on a concern not founded that the district support our conclusion cases to decide security, was no need and there give due defer- present case failed court exaggerated had officials whether expert judgment ence security legitimate consider response to a viable alternative existed that no who testified case, length ation”). present the hair In the regulation. the hair legitimate con regulation was founded compromised safety cern that date, RFRA whether has decided circuit no 13.To long hair concealing in their contraband inmates free exercise protects Indian’s an American gang. particular identifying with provide a sweat must the extent that McCotter, 49 F.3d lodge. In Werner yet decided Although circuit has no other denied, - U.S. -, Cir.1995), cert. reg- precludes whether RFRA (1995), ulations, upheld such courts have district several acknowledged American Indian that an challenges. Phipps v. against regulations prima case under facie made out prisoner had Parker, (W.D.Ky.1995) F.Supp. to the district the case ap- but remanded “cutting hair short (holding inmates’ Although places the right prohibition burden against lodge a sweat cere- production persuasion and prison on the mony is the least restrictive means achiev- officials,14 government once the provides this ing the compelling prison interests of safety evidence, prisoner must demonstrate security case. what, any, if less restrictive means remain Hamilton testified that lodge sweat unexplored. It would be a herculean burden ceremony probably could be conducted with- require prison administrators to refute out the axe. Hamilton also prison “invited” every option conceivable satisfy order to guards to participate in lodge the sweat cere- the least restrictive prong means of RFRA. mony prisoners. with the Neither of Hamil- Moreover, such an requirement onerous suggestions, however, ton’s adequately ad- would be irreconcilable with the well-estab prison dresses the First, officials’ concerns. lished principle, recognized by axe is one of potentially several legislative history, RFRA’s dangerous instruments used in the sweat prison administrators must be accorded due lodge ceremony. Thus, conducting the sweat creating deference in regulations policies lodge ceremony without the axe would not at the directed prison maintenance of safety obviate the risk that the other instruments security. O’Lone, See 482 U.S. at antlers) (e.g., deer would be used as a weap- 107 S.Ct. at 2405. Second, on. physical characteristics of Prison officials testified that they would (i.e., lodge sweat doorway low and no proposal consider to allow American Indian light) would prison create serious risk inmates to meet ground outdoors guards searching lodge during a ceremo- pray and conduct pipe ceremony. Ac- ny. Thus, prison officials’ concern that cording prison officials, American Indian participants engage in prohibited inmates at other prisons Missouri are al- conduct while opaque inside the lodge are not lowed participate in various ceremonies alleviated. ground outdoors without sweat lodge. type This of modified ceremony may There very well be less restrictive primary eliminate a concern of means of achieving prison safety security officials, namely inability than completely prohibiting lodge sweat cere- guards to observe the inmates in lodge. monies. Justice Blackmun recognized the testified, however, that he would implicit dilemma in a least restrictive means not and practice could not in any analysis: “A judge would be unimaginative capacity if he were not allowed to participate if indeed he could not up come with some- in a lodge ceremony. thing a little less ‘drastic’ or a little less presents This case ‘restrictive’ in situation, almost any unusual situation government thereby where the has enable satisfied himself to vote legis- the least to strike restrictive means prong by lation down.” demonstrating Illinois State Bd. Elections that other less restrictive v. Socialist Party, alternatives are not Workers acceptable plaintiff. See Cheema v. 59 L.Ed.2d 230 Thompson, Cir.1995) (Blackmun, J., concurring). Hamilton (Wiggins, J., (noting dissenting) has enlighten failed to the case any us as to viable presented unique question of least restric- less restrictive may means that remain avail- tive analysis means plaintiffs because the able to officials short prohibit- have taken an all-or-nothing position). ing Ham- the sweat ceremony entirely. Ac- ilton’s own all-or-nothing position supports cordingly, we hold officials’ contention that an out- have satisfied their burden under RFRA.15 court because the record was almost devoid of ward with the persuasion[.]" evidence and of necessary facts to allow the court to 2000bb-2(3). balance U.S.C. governmental against interest at stake placed restrictions on the inmate. 15. A remand to the necessary district court is not in this case record contains suffi- 14. "As used in ... [RFRA] the term 'demon- support cient factual for our conclusion that the strates' means meets going the burdens of for- officials have satisfied their burden under However, for law. federal regulation violates III. CONCLUSION below, I believe that discussed the reasons court the sum, that district hold we Therefore, I unconstitutional. RFRA is prison officials deference give due failed the district judgment of the would vacate prison necessity the of toas the testified who pro- for further the case remand court and against prohibition regulation length hair ceedings. safety and prison lodge to maintain a sweat restrictive least security. Because compelling prong of I.

means pre- than no more requires in RFRA Potosi Cor- at the is an inmate Hamilton officials’ prison required, eases O’Lone (Potosi), securi- a maximum rectional Center regulation hair for the justifications Department of Missouri facility of the ty ceremony lodge of a sweat prohibition rights lawsuit filed this civil He Corrections. we conclude facts On these were sufficient. griev- prison unsuccessfully pursuing after not do at issue regulations prison offi- He claims that procedures. ance the free exercise right to Hamilton’s violate defendants) (hereinafter his violated cials by the Constitution protected religion as of freely his right to First Amendment however, not, does Our decision and RFRA. Hamilton, religion. whose American Native sweat possibility of successful foreclose descent, primarily was of Choctaw mother circumstances. under different lodge claim regulation grooming contended to ac- Furthermore, encourage prisons we long hair growing him from prevented inmates, of religious needs commodate request build denied that defendants inmates, by pro- Indian including American to conduct lodge in which sweat minimum. beyond the bare viding facilities ceremonies. decision and court’s Accordingly, the district hearing evidentiary held two-day All attorney fees is reversed. At the award of judge in magistrate over- March this court before before pending motions testimony deposition submitted ruled. from states of officials aof number dissenting. McMILLIAN, Judge, Circuit testified These officials Missouri. other than lodges and with sweat 11(B)(1) experience to their of as from Part respectfully I dissent fa- respective regulation at their hair it holds that insofar as majority opinion from a superintendent Cir.1975) An assistant cilities. Burns, Teterud Dakota, testified Springfield, South facility in {Teterud), dispositive of not lodge since 1985 a sweat they have had under the length regulation issue security prob- no been there have n. majority op. at 1555 interest test. See Prison misconduct. claims sexual lems or opinion that the if I were of Accordingly, gave simi- (RFRA) Iowa from Wisconsin officials Act Restoration Religious Freedom experience facilities’ testimony as to their lar constitutional, I would affirm then regard to hair lodges. With sweat length with holding that the court’s district prisoners to reluctance filed due been evidence recognize that additional We RFRA. guard that no testify and the fact part of Hamilton's placed record they were in participants while quo. preserve the status observe post-judgment motion However, lodge. that was rely only on the evidence acknowledged that “Missouri conclusion. to reach our district district court before the experience their personnel relied corrections deposition testi- court relied The district that such a belief and on work in corrections a few other mony from administrators safety and with practices would interfere conducting they sweat were states Although prison security of the institution.” problems envisioned without ceremonies provide jurisdictions some policies from other Hamilton, 863 prison officials. See the Missouri implementing a feasibility as to evidence testimony, deposition F.Supp. at 1023. This safety achieving prison means less restrictive however, prison adminis- revealed outweigh the deference security, it does problems with the aware various trators were expert judgment owed to allegations sexual im- including lodges, infinitely own familiar more who are occurring lodges. Prison ad- proprieties observers. than charges outside institutions had that no formal stated ministrators length, prison officials from Iowa and South mended that enjoined defendants be Dakota testified that penitentia- enforcing states’ hair regulations against ries have regulation. abandoned Hamilton and that “accommodations be made deposition also submitted in the testi- accordance with Religious the Freedom mony of Chief Mato Wanagi Baldwin of the Act Restoration to allow prac- [Hamilton] Menicongulakota Tribe. Chief Baldwin tice his religion, testi- Native American including fied religious about the significance the weekly the have a lodge sweat cere- lodge sweat ceremony growing mony.” and the Id. at 1024. long testimony hair. His corroborated Ham- adopted district court the recommen ilton’s claim that lodge a sweat ceremony dation but require modified it to parties must be outside on the ground and that compromise to seek a precise way on the Native traditionally Americans wear their effectuate remedy regard with to the long and braided. lodge sweat ceremonies. Hamilton v. Schri ro, (W.D.Mo.1994) F.Supp. Following evidentiary (publish hearing, ing magistrate the full text judge magistrate judge’s issued a report written and report recommendation). and Schriro, However, recommendation. Hamilton v. (W.D.Mo.1994) parties F.Supp. were unable to resolve all (Report Recommendation). parties issues. The agree could not on evaluation claims, location of the lodge, Hamilton’s sweat magistrate judge ex- defendants pressly lodge wanted the sweat relied on be available to all U.S.C. inmates, 2000bb4, in which accordance policy had with their become to effective religious ward November other services. few The case months before hearing thus on referred back equitable magistrate Hamilton’s judge claims. The who magistrate judge possible recommended a specifically location found for lodge sweat religious Hamilton’s and also recommended that sincerely beliefs were held and that the ceremony sweat lodge (6) for six months after the sweat component” “essential of his Native operational becomes ceremony religion. American Report and Recommen- implemented, participation in the sweat dation at 4. magistrate judge found lodge ceremony be limited to those who defendants’ denial of requests Hamilton’s un- are sincere adherents of the Native Ameri- they reasonable because did not can religion or to who those have been (1) approved for any inquiry participation by make majority of problems vote encoun- tered Native personnel practice Americans who institutions Na- tive American allow the practice of scheduled Native American reli- gions; to participate in any ceremony. contact Native American religious leader to determine feasibility Slip 1994) op. at 2 (Sept. (Report and requests, [Hamilton’s] or to determine II). Recommendation The district court whether acceptable other alternatives ex- adopted the eligibility recommendation for isted; do a analysis cost or make participation in the lodge ceremony inquiry regarding the availability of funds verbatim and the other recommendations or the. amount of funds that would be (Oct. with minor Id. modifications. required. 1994). essence, Id. at 1023. magistrate judge II. concluded that defendants “made absolutely no to determine effort whether the Our court first argument heard oral practices could be accommodated while still May case in time, 1995. At that defen- taking safety care of and security concerns.” dants did not challenge constitutionality Id. The magistrate judge found However, also RFRA. because of some con- concerns about the smuggling of cern contraband over the district court’s treatment of and inmate identification regard issue, to hair asked the parties to submit length were overstated. supplemental Ac- Defendants, briefs. in their cordingly, magistrate judge brief, supplemental recom- argued that up and resolved may taken tions the oral Shortly after is unconstitutional. primarily to (the one left appeal is govern- time on first States the United argument, appeals, to be courts of plaintiff-inter- ment) intervene the discretion moved oral supplemental cases.” individual requested facts of venor exercised government’s granted 106, 121,96 S.Ct. Wulff, We argument. Singleton v. supplemental heard intervene motion In the September parties from the argument has been case, record the factual present judge, magistrate developed, and the fully up expressly admittedly passing, although A. RFRA. Under constitutionality of held my rea- matter, I discuss a threshold As circumstances, not refrain I would these constitutionality of reaching the for sons issue. the constitutional consideration initially party Although neither RFRA. appeal, de- issue constitutional raised magis- B. before the issue did raise fendants recommenda- report and judge. In trate to be teach us principles Long-standing to was entitled concluding that Hamilton tion constitutionality aof to consider reluctant judge dis- relief, magistrate injunctive v. Catalina Zobrest See statute. federal as fol- RFRA constitutionality of cussed 1, -, 113 Dist., 509 U.S. School lows: (1993). It 2465-66, 125 L.Ed.2d 1 S.Ct. sug- defendants’ cognizant of is court is to an act of that constitutionality of well-settled ... that gestion doubts and that Sec- constitutional presumed determined. yet been not has en- statute amendment fourteenth federal of5 the construction tion about by the guaranteed liberties compasses resolved, possible, favor fairly if to be amendment, It omitted] [citation prin first these constitutionality. Id. With itsof may en- therefore, follows, that mind, I statutory construction ciples of enforcing provisions laws act that court concluded district that note of com- In absence amendment. first relief be equitable entitled was indicating ease law arguments pelling satisfy their bur failed defendants cause ad- further otherwise, will not court this infringement demonstrating that den this issue. dress liberty accom was upon Hamilton’s dis- at 7. The Report and Recommendation means. restrictive through the least plished Report adopting the order court’s trict pivotal to Clearly, enactment RFRA’s consti- not address the did Recommendation enjoin enforce decision court’s district brief, magis- Although question. tutional fact, length regulation. hair ment clearly the issue judge’s treatment trate circuit our enactment prior of the Four- 5 conclusion reaches Missouri a similar held that specifically had Congress with provides teenth valid as length restriction the enactment for basis penological legitimate reasonably related RFRA. F.2d Henry, Eyes v. Iron interests. of RFRA’s issue appears it Although Cir.1990) (Iron citing (8th Eyes), O’Lone consider limited received constitutionality Shabazz, U.S. Estate v. court, previously in the district ation L.Ed.2d a trial court unfair to “[i]t held Safley, U.S. (O’Lone), Turner question that decide appellate court an 89-91, 107 S.Ct. opinion, in its actually reached trial Thus, magistrate (Turner). not ar it was fact notwithstanding a dra RFRA effected conclusion judge’s Bowen, Struempler parties.” by the gued landscape of Su legal change matic Cir.1987). Moreover, precedent Circuit Eighth preme consid has not district court where the even his recommendation non to qua sine ques- was issue, of what matter “[t]he an ered equitable granted relief be regard limited to its facts and to the hair restriction.1 had been rejecting the Su- preme Court when evaluating free exercise This conclusion deserves elaboration. Be- challenges regulations). fore I examine the Congress’s power limits of § 5 Amendment, of the Fourteenth I Turner involved regula Missouri helpful it find to review our experi- court’s relating tion marriages inmate in ence over the last two decades with the Free correspondence. mate-to-inmate Exercise Clause and re- 81, 107 S.Ct. at 2257-58. The district court my opinion, strictions. background regulations held that allowing inmate mar appropriateness underscores the of consider- riage only with the permission warden’s ing question the constitutional and facilitates when compelling present, reasons were appreciation of the context in which that limiting correspondence inmate-to-inmate be question arises. tween unrelated inmates nonlegal mat In our court decided Teterud. The ters, were unconstitutional. We affirmed majority opinion describes Hamilton’s reli applied scrutiny strict to conclude ance on “misplaced,” Teterud as see note 11 regulations the two were not the least re supra, though even it involved a similar hair strictive means of achieving the asserted length issue was decided before O’Lone. goals of security. rehabilitation and Id. at Teterud, a Native American inmate chal 83, 107 S.Ct. at 2258-59. Supreme lenged the constitutionality of a Missouri reversed, Court holding that we improperly regulation prison prohibited which him from applied heightened standard of Procuni wearing long hair. at 358. Id. The district Martinez, er v. 396, 413-14, 416 U.S. applied the compelling interest test of 1800, 1811-12, 40 L.Ed.2d 224 (1974), and Yoder, 205, 215, Wisconsin 92 that, instead, we should have determined (1972) (Yo S.Ct. 32 L.Ed.2d 15 prison regulation whether which bur der), and found regulation that the was an dened a right fundamental reasonably unconstitutional restriction on the inmate’s legitimate related to a penological interest. exercise of his Native religion. American Turner, 482 U.S. at S.Ct. 2260-61. Specifically, “[t]he district court found the Specifically, the Court four-part set aout test wearing long braided hair to be a tenet of analyze which to challenged the Indian sincerely by [the held regulation. 89-90, Id. at 107 S.Ct. at 2261- It inmate]. further found that the interest of test, 62. Applying this upheld the Court penal administration by advanced [the war correspondence regulation but invalidated viable, den] could by be served restric less marriage restriction. Id. at Teterud, tive means.” 522 F.2d at 359. We S.Ct. at 2267. held that neither of findings these was clear ly erroneous. response to the warden’s O’Lone shortly was decided after Turner. that, argument alia, inter long hair caused O’Lone involved an inmate’s challenge sev- problems presented identification op eral regulations prevented which Mus- portunity for smuggling, contraband we lim Jumu’ah, inmates from attending a week- agreed with the district court’s finding that ly congregational service commanded by the justifications the warden’s were either with Koran. The Court reversed because it con- out overly substance or broad. Id. at 361. cluded that the court appeals had improp- The compelling erly imposed interest ap- that we separate burden on prison plied to invalidate the length prove hair officials to no reasonable method Teterud, however, restriction in was not existed prisoners’ which religious rights survive the Supreme Court’s can decisions in be accommodated creating without bona O’Lone Turner. See Eyes, Iron security 907 fide risks. Id. at S.Ct. (recognizing that Teterud again The Court reiterated the stan- 1. While I am inclined believe injunction denial of focus prohibiting enforcement request Hamilton's for a sweat ceremony length hair restriction because RFRA’s justify would also tionality an examination of the constitu- effect on easily this claim is more discernible. RFRA, will, purposes I analysis, freely exercise in Turner mate’s fundamental recently stated been that had dard test, religion.2 907 F.2d at 816. his this “reasonableness” and stressed applied than that was less restrictive of our caselaw makes clear This review con- fundamental infringements of alleged that, passage but for context, rights outside the stitutional on his free exercise could not have succeeded judi- unnecessary intrusion “avoid[ed] length regula challenge hair ill-suited to problems particularly ciary into that, argues tion. Hamilton decree.” resolution Yo test of restored citations marks and (quotation at 2405 der, Eighth case on controlling Circuit omitted). regulation again is once through magistrate judge, Teterud.3 The Supreme two wake of these In the analysis, implicitly accepted argument, decisions, an inmate’s free again faced Consequently, I that we are as do I.4 believe prison challenge to a question squarely faced with the whether plaintiff, a Eyes. Iron restriction RFRA and power had the to enact Indian, support on Teterud as relied Sioux prior thereby supplant Court’s noted, how- claim. We for his free exercise decisions, including O’Lone free exercise ever, Turner on the the effect O’Lone Turner, precedent.5 and our circuit own challenges pris- inmate legal landscape of infringing upon fun- allegedly regulations C. rights, applied the less onerous damental argue that RFRA is unconsti- test, neu- Defendants and held that reasonableness authority Congress lacks un- rationally relat- tutional because regulation was grooming tral Fourteenth Amendment der 5 of the security interests and therefore toed operation its state’s infringe upon the in- interfere with the unreasonably not did held, sincerely and then concluded Eyes Henry, beliefs were v. 907 F.2d We that in Iron 2. note 1990) (Iron (8th prohibition Eyes), length regulation did and the Cir. the hair through provide procedure substantially which an inmate a against sweat ceremonies exemption prohibi apply an for religion. Hamilton’s exercise of his burdened exemption against long was elim hair. That tion recognized magistrate judge the com While the appeal Eyes in Iron was taken after the inated under submission. Id. security, pelling governmental interest in However, in at 815 n. 7. judge magistrate that defendants determined decision, a dis subsequent our court affirmed a demonstrating their burden of had not satisfied dismiss, the basis of decision to trict court’s length regulation was the least restric the hair complaint by holding Eyes, an filed our in Iron mag furthering interest. The that tive means challenged the hair inmate who same noted, response to fears of con judge in istrate facility exemp at the same when restriction in smuggling, women incarcerated traband Purkett, longer Campbell v. tion no existed. required were not correctional facilities Missouri Cir.1992) curiam); (8th (per accord F.2d 535 hair, judge magistrate keep short Cir.1994) Délo, (8th (up v. F.3d 22 Bettis holdi testimony significant of two male in found length regulation). ng Missouri hair long photographed were who mates report again 3. In its to the had photographed after but not explained: ap Judiciary Burns, “As Committee Senate F.2d v. been cut short. In Teterud context, jail plied prison and the intent 1975), our court affirmed Cir. protection act is to restore the traditional similarly expressed rejection of court’s district religions prisoners to observe their afforded to smuggling and in concerns about contraband by the decision in O’Lone which was weakened inadequate justification for mate identification Cong., S.Rep. 103d No. Estate of Shabazz." regulation. the hair (1993), reprinted in U.S.C.C.A.N. Sess. 9 1st that “the The Committee also found McCotter, 5.See Werner compelling set forth standard established interest (10th Cir.) ("The legis passage [RFRA] recent place undue burdens on the Act will not [sic] in Supreme latively of recent overturned a number Finally, Com Id. at 11. authorities." ], decisions, including [O'Lone Turner and Court special exemption for concluded that no mittee constitutional) (if defining statutory by not under the Act free exercise claims denied, religion."), cert. right the free exercise of necessary. Id. U.S. -, - carefully magistrate judge considered the 4. The test set out "restored” finding Hamilton's made a RFRA. He first prisons. They contend Supreme Supreme that numerous Court sup- decisions rights has defined what inmates have port their interpretation broad Congress’s pursuant to the Free by Exercise Clause power Further, government 5.6 applying the reasonableness set forth in argues that RFRA only, not promotes the O’Lone They and Turner. maintain that Fourteenth guar- Amendment’s free exercise RFRA establishes a different test applicable antee, but also Equal enforces the Protection therefore, to prisons, and religious creates by protecting against Clause religious dis- rights prisoners that otherwise would not crimination. government emphat- states exist. argue Defendants 5 does not ically that RFRA statutory, creates give Congress power change the con- constitutional, free right. gov- exercise holdings stitutional in O’Lone and Turner. ernment separation admits that the pow- They maintain that basis for affirm- protects ers doctrine specific constitu- ing judgment, light prior precedent, judgments tional of the federal courts from change made in RFRA legislative interference, and recognizes and that RFRA is an unconstitutional exten- Supreme paramount Court’s authority to in- congressional sion of power. Defendants terpret Constitution; government as- conclude that 5 is not an available basis for serts, however, that RFRA is simply a stat- the enactment of RFRA merely because it is provides ute legislative protection for a provision “enforcement” which is limited right over and pro- above that providing remediation consistent with the vided the Constitution. goals of the Fourteenth They Amendment. therefore reason that RFRA cannot said be D. “enforcing” Supreme when the Court had held that there As majority noted in the opinion, supra was no right. such note passed RFRA was response Hamilton, Court’s government, Employment decision in and the on the oth- Smith, hand, er Division v. maintain that RFRA’s S.Ct. enactment 1595, (1990) represents (Smith). 108 L.Ed.2d valid 876 congressional exercise of Smith, authority § two that, under 5. members They argue of the Native be- American cause Church the Due Process claimed that the unfairly Clause of state Four- denied the teenth them unemployment Amendment incorporates compensation First the Amendment, nothing §in Congress’s peyote, limits use of 5 which resulted ability legislate job to procedures termination, in their used was be determined to to vindicate free disqualifying exercise claims. be gov- 876, The “misconduct.” at Id. ernment contends that Congress’s § 110 power 5 S.Ct. at 1599. After remand to the beyond extends authority merely Oregon pro- Supreme Court for a determination specific hibit legality use,7 violations peyote as of Supreme § empowers states that 5 Congress to Court held that the Free Exercise Clause legislate prophylaetically by proscribing permitted or Oregon to prohibit sacramental regulating that, conduct although peyote not uncon- use and deny therefore to pay- stitutional, infringes threatens or upon the unemployment ment of benefits to the Native exercise of Fourteenth rights. Amendment Americans discharged using for peyote. Id. Both Hamilton government and the 890, contend 110 at at S.Ct. holding, 1606. so City States, 6. 156, See Rome v. United 446 power U.S. enforcement § of under 5 of the Fourteenth 1548, (1980) S.Ct. 100 64 L.Ed.2d 119 (holding Amendment). Voting Rights of the 5 Act of 1965 was a valid of congressional power under 2 of the Oregon Supreme 7. The Court peyote held Amendment); Mitchell, Fifteenth Oregon v. 400 proscribed by laws; use was drug the state's 112, 260, (1970) 91 U.S. S.Ct. 27 272 L.Ed.2d however, pro- concluded that this (Mitchell) (holding inter alia that could hibition was invalid under Free Exercise age requirement set the for national elections but Smith, Employment Clause. Div. 494 U.S. elections); state or local v. Mor Katzenbach 872, 875, 1595, 1598, 110 S.Ct. 108 L.Ed.2d 876 641, gan, 1717, 384 U.S. 86 S.Ct. 828 L.Ed.2d (1966) (Morgan) 4(e) (holding § Voting of the Rights Act was a Congress’s valid exercise of Congress shall “[t]he states Amendment compel of application rejected Court enforce, legis by appropriate power claims have free exercise ling interest U.S. this article.” lation, provisions of of valid laws neutral challenged XIV, it is Because 885, 110 5. S.Ct. amend. CONST. applicability. general agree duty of the case present province “emphatically parties All not, is,” could not, the law say and indeed what department judicial should that we 177, the Court of the decision determine we should Marbury, whether decide U.S. of constitu leg as matter scope correct of falls within Smith whether Rather, analysis focus should 5, our by § law. as tional power granted islative Amend the Fourteenth § 5 of on whether by the courts. interpreted been it has enact Congress’s for a basis provides ment power Congress’s of whether The issue stated reasons For RFRA.8 ment the Fourteenth 5 of under not. that it does below, hold I would incorpo- enforce an it acts to when the same legislature are defined powers “The remedy toor it acts to when rated may not be limits limited; those Amend- of the Fourteenth a violation prevent constitution forgotten, mistaken decided. expressly not been has itself ment (1 Madison, 5 U.S. Marbury v. written.” 718, 678, Finney, U.S. Hutto See (Mar Cranch) 176, 2 L.Ed. 60 L.Ed.2d carefully ). Constitution bury While argument J., dissenting). An (Rehnquist, undue the states protect drafted per- made, both historical based on be the Su government, by the federal intrusion logic doctrine spective recently us reminded Court has preme power to itself, Congress’s incorporation ... worked Amendments War Civil “[t]he § 5 should under incorporated rights enforce con in the balance between change dramatic Mitchell, 400 U.S. See circumscribed. be matters power over and state gressional (‘Where Congress at- Co., at 267 91 S.Ct. Croson v. J.A. City Richmond race.” remedy discrimination racial 706, 720, tempts to 109 S.Ct. authority is en- Mitchell, powers, its (1989); enforcement Oregon v. its see L.Ed.2d fram- intention avowed hanced J.). Fourteenth, (Black, and Fif- (1970) (Mitchell) Thirteenth, ers L.Ed.2d Amendments.”). these far-reaching legally most teenth Fourteenth, provides Amendments, this issue. to resolve had an occasion has not equal protection principles my opinion, necessary, in fundamental would it Nor this Although law. process in the issue due particular this panel decide our response to enacted in was Amendment I believe because present ease slavery and history of country’s shameful Congress’s assuming unconstitutional, even discrimination, protections many of the racial § variable. 5 are not powers under been Rights Bill of have set forth of Con- scope the leading case on Pro through the Due to the states applied v. § 5 is Katzenbach under gress’s power Amendment, Fourteenth of the cess Clause 1717, 641, 86 S.Ct. Morgan, U.S. of the First Amend including protections the Morgan, (1966) {Morgan). L.Ed.2d Connecticut, U.S. See Cantwell ment. § as “a Supreme Court referred the 900, 903, 84 L.Ed. 303, 296, 60 S.Ct. authoriz- power legislative grant of positive liberty concept of (“The fundamental in its discretion Congress to exercise ing embraces in embodied legislation is what determining whether and First Amend by the guaranteed liberties Four- guarantees of needed secure ment.”). the Fourteenth Section many same struc- of the For brief, sug- teenth Amendment. government its a footnote to opinion, dissenting in this cited tural reasons of con- exercise also a valid gests that RFRA supporting RFRA’s § preclude 5 from which Clause. the Commerce power under gressional conclude, based on the constitutionality, I cannot We at 33 n. 16. for Plaintiff-Intervenor Brief govern- by the the issue very treatment of limited however, suggested in only note, basis valid ment, is a basis Clause Commerce main histoiy and in the legislative of RFRA. brief, the enactment § Four- is 5 of the government's text teenth Amendment.” Id. at powers); see also South Carolina Katzen 1723-24. That ease bach, considered whether 803, 817-18, U.S. 86 S.Ct. 4(e) § Voting Rights Act of (1966) (Katzenbach) 15 L.Ed.2d 769 (apply 1973b(e), § U.S.C. was “appropriate legisla ing (4 Maryland, McCulloch v. tion” to Equal enforce the Protection Clause. Wheat.) 316, 4 (1819), L.Ed. 579 standard to In respects pertinent to the cases under re provision enforcement of the Fifteenth 4(e) Morgan, view in § provides per that no Amendment). son who has successfully completed the sixth 4(e) Analyzing § under this broad grade stan- public in, school or a private dard, the provided Court two school by, accredited alternative bas- the Commonwealth of 4(e) es for § its conclusion that Puerto Rico in was a proper which the language of instruc § power. tion exercise of 5 other English These than shall two bases be denied have any by to vote been referred to election because of commentators as the his or inability theory her to read remedial English. or write theory substantive The State of § York challenged power.9 New of 5 the stat The Court first considered a ute it conflicted with the state’s re justification remedial for the enactment quirement that 4(e). voters be able read and § Explaining 4(e) the enactment of English. write Morgan, as a measure to Equal enforce Protection 86 S.Ct. at Court, 1719-21. however, Clause, the Court Morgan: stated in “Sec- 4(e) held that section proper was “a 4(e) may tion be viewed as a measure to powers granted Congress by § 5 of secure for the Puerto Rican community re- Fourteenth Amendment.” Id. at 86 siding in New York nondiscriminatory treatr S.Ct. at 1721. by ment government imposition —both argued New York voting that an qualifications exercise of con- provision and the ” gressional power 5 could governmental administration of services.... if the sustained state law which was invali- Morgan, 384 U.S. at 86 S.Ct. at 1724. legislative dated action was itself vio- The provided Court further that the statute lative of the Fourteenth Amendment. The plainly adapted to furthering the aims of disagreed Court and held that “[a] construc- Equal Protection Clause because it “en- tion of 5 that require judicial would able[d] the Puerto Rican minority of New determination that the enforcement of the York perfect better to equality obtain of civil precluded state law by Congress violated rights and equal protection of the laws.” Amendment, aas of sustaining condition 1724 (quotation marks enactment, the congressional depreci- omitted). that, The Court concluded where ate congressional both resourcefulness and Congress has assessed weighed the vari- congressional responsibility for implementing ous conflicting considerations, the statute Amendment.” Id. at 86 S.Ct. at upheld would be long aas basis could be 1722. In its discussion of scope perceived upon Congress might explained that “the draftsmen resolved conflicting considerations as it sought grant Congress, specific did. Id. provision applicable to the Fourteenth Amendment, conclusion, the same powers This broad ex- based on a ap- remedial pressed in Necessary the proach, in Proper way no rested on possibility 650, Clause.” Id. at 1722; 86 S.Ct. at Congress see Ex determined the enactment or parte Virginia, 339, 345-46, 100 U.S. application English state’s literacy re- L.Ed. 676 (delineating scope § quirement of 5 had purpose as perpetua- its Conkle, 9. See Daniel O. Religious Freedom dle Constitution, direct command of the Restoration Act: Significance The Constitutional that it could override ground state laws on the Statute, an Unconstitutional Mont.L.Rev. they were in fact used as instruments of (1995). Explaining the alternative rationales of invidious though discrimination even a court Morgan, Justice Stewart in Mitchell stated: in an individual might lawsuit not have opinion The Court's Congress made clear that reached that factual conclusion. impose could on remedy 296, tire States a for (Stewart, 400 U.S. at J., 91 S.Ct. at 350 equal protection denial of upon that elaborated concurring part in part). and dissenting in state law and passage of the played in As Justice discrimination. invidious tion policy concerns public questioned further Morgan ratio- the first understood Stewart legislature the state way in which and the have concluded nale, could Congress Clearly, type this of review resolved them. power of Puerto political “enhancing the “specially Congress’s ambit of is within the right to conferring the community Rican 656, competence.” Id. legislative informed remedying means appropriate was an vote Thus, the Court concluded 1725. S.Ct. services.” public in discriminatory treatment 295, at 350 Mitchell, 91 S.Ct. and dissent- (Stewart, J., concurring part upon in enough that we basis perceive it is words, Morgan judg- In other

ing part). Congress might predicate which that, ensuring that York’s application of New concluded Court ment not denied that community deny the literacy requirement was English Puerto Rican rights,” grade of all “preservative with a sixth person to a right which to vote in which Hopkins, 118 U.S. schools in Puerto Rican Yick Wo education (1886), Con- than was other language 30 L.Ed. of instruction S.Ct. 4(e) to “enforce invidious discrimi- rationally English enacted constituted an gress Equal determined con- Protection judicially in violation nation and effectuate discrimination prohibition racial Clause. stitutional Conkle, Re- Daniel O.

by government.” words, Congress could look to Id. other Act: The Con- Restoration ligious Freedom law,11 state legislative intent behind an Unconstitutional Significance stitution law, the com- state the substance (1995); see Statute, 56 Mont.L.Rev. considerations, form the policy peting Klutznick, Fullilove application of law belief that (plu- which discrimination an invidious indeed rality opinion). Clause, as Protection Equal would violate by the expounded had been that clause for basis provided a second then The Court Furthermore, long as the Court so Court. 4(e) it be- which §of Congress’s enactment legislative this for perceive basis 4(e) “appropriate make would also lieved power § 5 judgment, the exercise the so- This was legislation” be valid. pref- theory.10 The Court called substantive lawa Congress to invalidate acts When analysis as follows: of its portion this aced unconstitution- its face but that is neutral confine our if we no different result is “The intent,12 4(e) discriminatory application ally question whether inquiry to the factfinding superior employs necessarily its it the elimination aimed at merely legislation acumen policymaking establishing capabilities discrimination an invidious discrimination effects of eradicate qualifications.” voter which violations prevent future section, reviewed Court this at 1725. In III court, its Article a federal determination factual limitations, may not be example, able particular pur- regarding may have made I think readily. therefore literacy address English York’s the New pose behind theory is best understood Morgan might second noted that law. The Court facially neu- those Congress to address allow prejudice the role that both questioned Morgan, the years before terminology 12.Seven employ occasional- 10. While we challenge Car- to North upheld a facial believe, opinion, do not ly throughout our law nearly to the New York identical olina law later, Morgan the second will be discussed 4(e) Rights Voting Act. by § struck down 4(e)’s proper- § 5 is validity § under rationale for Bd., Northampton Elections See Lassiter ly as substantive. characterized 985, 45, 3 L.Ed.2d 79 S.Ct. U.S. “issue of careful note The Court evi- notice Morgan, the Court took 11. In application of the in the actual discrimination likely discriminatory attitudes been had not dence of North Carolina” ballot laws below, 1916 of New enactment in the state court presented influenced S.Ct. at Id. requirement. be reached. literacy not therefore English York 989. 14. 86 S.Ct. at 1725 n. 654 n. tral may activities which liberty have unconstitution- and competing prior governmental in- al underpinnings, and not as a rationale that 2000bb(a)(5). terests.” § 42 U.S.C. In es- grants Congress power sence, substantive Congress has Supreme instructed the § scope 5 to define the guar- interpret how to the Free Exercise antees. understanding With this (that of Mor- Clause of the First is, ap- gan’s rationales, alternative proceed I ply test), the compelling interest though even consider whether provide can Court, basis for entity charged by the Consti- Congress’s enactment of RFRA. tution application, with its has determined the compelling interest test is neither required. feasible nor It hardly needs to be E. said that where Supreme and the begin my I analysis of RFRA with the Court clearly are so with each odds other congressional findings, U.S.C. over the definition of a right, fundamental 2000bb(a), highlight the diametrically presents the conflict an obvious and serious opposed positions Supreme Court and threat to the delicate separa- balance of the Congress on the nature of the Free Exercise powers. tion of Clause and to priori quali demonstrate the a In his opinion Smith, for the Court ty of congressional these findings. short, explained Justice Scalia problematic as- language these findings portrays Con pects of interest test in the gress, political not as a organ well-suited to context of free exercise cases: conduct the empirical business of research government’s The ability gen- to enforce policy implementation, but super- as a erally applicable prohibitions of socially Supreme (2) Court.13 Finding which states conduct, harmful ability like its carry that “laws neutral religion toward may bur out aspects other public policy, cannot religious den surely exercise as as laws in depend measuring the effects of a gov- tended to interfere religious with exercise” is ernment action on religious objector’s clearly product not the of extensive factfind- spiritual development. To make an indi- ing but the result of logician’s exercise. Id. vidual’s obligation to obey such a 2000bb(a)(2). law con- Finding further states tingent upon the law’s coincidence with “governments should not substantially beliefs, religious except where the religious burden State’s exercise without compelling is “compelling” permitting justification.” him, 2000bb(a)(3). As the — beliefs, virtue of his to become a purposes reveal, stated law of RFRA finding himself, unto contradicts both constitution- nothing Congress’s more than the adoption al tradition and common sense. of the standard set forth pre-Smith Supreme Court decisions in Sherbert v. (internal Ver 494 U.S. at 110 S.Ct. at 1603 ner, U.S. quotation omitted). citations and marks (1963) (Sherbert), Yoder, which the Court have been clearer in its Supreme Court has specifically rejected expression view that the compelling unworkable and unnecessary in free exercise interest test of Yoder and Sherbert should be Smith, eases.14 See 110 abandoned as inconsistent its constitu- S.Ct. at Nevertheless, 1605-06. Yet, tional judgment. through Con- provided in its final finding stated gress expressly “the intended “to restore the com- compelling interest test as set forth in prior pelling interest test as set in [Sherbert forth ] Federal rulings is a workable test for guarantee [Yoder] and to application its striking sensible balances between in all cases free where exercise of fact, Judiciary Power, the Senate Committee ex ("In 73 Tex.L.Rev. pressly purpose stated that "the of this specific act [was] case RFRA ... the relevance of Con- to overturn the Court's gress's decision in factfinding capacity entirely is not obvi- S.Rep. Smith." No. at 12 U.S.Code Cong. thing, ous. For rejection judicial one & Admin.News 1993 at 1902. balancing Employment Division v. Smith was normative, arguably a empirically and not con- Idleman, 14. See C. Religious Scott tingent, Freedom judgment meaning about the of free ex- Pushing Restoration Act: Legislative Limits ercise and judiciary.”). the nature of the of the use of Voting Rights prohibiting Act 42 U.S.C. substantially burdened.” literacy prerequisite a 2000bb(b)(l). English tests as instance, In the use of 5 as suffrage. Moreover, in direct contravention equal furthering cause of means of Smith, “substantially in analysis Court’s not did was certain. protection requires courts of RFRA element burdened” equal for all impose a standard of review reli- centrality an adherent’s of weigh the the courts were to claims which protection failings exposing the Further practice. gious rather, under the remedi- employ generally; in exer- test free compelling interest of Congress prohibit- Morgan theory, first oral “Repeatedly cases, wrote: Scalia Justice cise in order to particular practice state root aed contexts, many different in past of invidious discrimina- the effects out presume not courts must warned possibility of future and to reduce tion in a particular belief place of a determine Enacting such a discrimination. invidious religious of a plausibility religion or the is, however, qualitatively different from law Smith, 110 S.Ct. at 494 U.S. claim.” imposing upon the a standard of re- “substantially Yet, injecting 1604. which overrules for free exercise claims view RFRA anal- into court’s element burdened” holdings. RFRA’s prior free exercise its weigh courts to require ysis, compelling interest test on imposition of the infringement upon a alleged of an extent nothing less than a free exercise claims is all importance of against the religious practice Supreme Court’s alteration of the radical fact, defen- predictably, In practice.15 jurisprudence. exercise free argued that present case have dants challenged pris- apply does or second the so-called substantive Under merely “im- they prohibitions because theory, the Court concluded Morgan “substantially burdened” rather than pinged” conducting investiga- its own Congress, after religion. Brief of free exercise Hamilton’s tion, rationally that a might have determined type argument 16. Appellants at This applied enacted or facially valid state law was it the Court when exactly what troubled invidiously in violation discriminate as so constitutionally ap- inability explained its Again, in Equal Clause. Protection to free exer- ply not, case, in an Congress did present applicable challenging generally claims cise factfinding capacity, superior of its Smith, laws. See neutrally-phrased particular at a aim take at 1605-06. S.Ct. was enacted which it had concluded law state explained the dis- further Scalia Justice unconstitutionally. applied com- application between tinction heightened lev- Congress sought impose discrimi- in of race interest test eases pelling every courts for scrutiny on the federal el speech, nation, regulation of content or the govern- or federal type of case which state religion: matters of free exercise substantially one’s burdens ment other fields— produces in it those “What such, Congress its abdicated As practice. unrestricted equality of treatment and particular investigate the responsibility to constitutional contending speech flow potential —are might have action which state pri- norms; here —a produce it would what burdening the exer- unconstitutionally free applicable ignore generally vate instead, Congress has religion, cise anomaly.” Id. at a constitutional laws—is investigate, under a courts to required the that this I believe at 1604. rejected previously standard light upon the sheds considerable observation Court, plaintiffs myriad cases which Morgan and 5 as discussed contours has been sub- religious practice claim validity of RFRA. It is unjustifiably burdened. stantially or second the substantive clear to be a valid thus Morgan, held support fails to Morgan rationale well provision of the for a basis The interference See, than an inconvenience. Coughlin, F.Supp. more e.g., Alameen plaintiffs to a reli- ("[T]o (E.D.N.Y.1995) impose must burden belief central a sub omitted)). (citation burden, gious doctrine." government interference must be stantial 1568 Congress’s “restoration” ply to protection enhance the afforded the to all free exercise claims Clause, Free Exercise but to define it. I brought in federal court. therefore conclude that RFRA is unconstitu Boerne, tional. City I Accord Flores v. Congress believe that what 877 has done of

through F.Supp. (W.D.Tex.1995); passage RFRA’s 356-57 under the In re banner Tessier, §of dramatically 5 is (Bankr.D.Mont.1995). 190 from B.R. 396 different its exer- cise of Morgan 5 power any inor other Smith, case to date. Supreme Court, F. consistent with duty its constitutional Marburg, concluded that scope recognize I that several district court deci First guarantee of free exercise upheld sions have RFRA as constitutional. did require not imposition height- of a See, e.g., Department Sasnett v. Correc of ened scrutiny level of on neutral laws of tions, F.Supp. 1305, (W.D.Wis. 1315-21 general applicability, though even such laws 1995) (Sasnett); Hawaii, Belgard v. may burden religious practice. When the (D.Hawai'i F.Supp. 1995) (Bel 512-17 held, Court so it was performing it most (followed gard) Hawaii, Abordo v. essential solemn interpreted function: it (D.Hawai'i F.Supp. 1995)). 1229-34 scope of Free Exercise Clause and However, I disagree with reasoning determined that neutral general ap- laws those In Belgard, cases. pres much like the plicability passed constitutional muster. case, ent plaintiff was a Native American passing Congress did not invali- who challenged various regulations in date a state law or state regulation as cluding a hair of, restriction. violative with, or even inconsistent F.Supp. at goals of 511. Hawaii argued Amendment; Fourteenth rather, Congress was unconstitutional substantively it represented Supreme altered the “congressional Court’s understanding usurpation of what the Free Ex- of functions en ercise actually exclusively Clause trusted means. judiciary, including delineation of the boundaries of constitutional uphold Were we to RFRA on the basis of rights and calibration of proper balance would, § we Smith, under our reading of between competing interests of constitutional allow impose a standard for the magnitude.” Id. at Rejecting judicial evaluation of all free exercise claims argument, state’s the district court relied prior overrules free exercise heavily Morgan. Specifically, the also, decisions district but in the considered and court made much of the paramount fact judgment Su Supreme Court, preme Court declined to leads to overrule constitutionally Lassiter v. anomalous results. Where, Northampton Bd., here, Elections as Congress acts under the S.Ct. aegis L.Ed.2d 1072 impose (Lassiter), on the judiciary a and, “despite method of analysis for the statute’s vitiation of resolution of Lassi- all ter, claims based on the constitutionality sustained fundamental of free of section 4(e) exercise, which in view, Voting Rights Belgard, Court’s does not Act.” produce “equality F.Supp. court, treatment” but constitu- 514. The district seizing anomalies, tional legislative action, upon such I substantive or Morgan second theo think, beyond must ry, the language and con- stated Court’s alternate stitutional intent of that, 5.16 I believe 4(e) rationale sustaining legisla was “a through RFRA, Congress does not seek sim- judgment tive literacy requirement City Co., 16. See Richmond v. J.A. Croson (1994) ("RFRA’s N.Y.U.L.Rev. 453-54 com- 469, 490, 109 pelling L.Ed.2d state privileges religious interest test be- (1989) ("The power may to 'enforce' at times by giving lievers tially them poten- an ill-defined and power also include the to define situations which sweeping right exemption to claim principles determines equal threaten laws, generally applicable comparably while seri- ity adopt prophylactic and to rules to deal with ous secular flowing commitments—such those situations.”); those see Christopher parental V. Eis obligation, from tion, philosophical convic- gruber & Sager, Why Lawrence G. Religious lifelong practice cultural no —receive Unconstitutional, Freedom Restoration Act is legal solicitude.’’). such in Bel- Therefore, court I the district believe per Clause se.” Protection Equal violated “Morgan conclude that incorrect to gard conflict was apparent direct this of Id. Because its enforce- 4(e), Congress within district acted held that Lassiter between of the Four- power authority section 5 had the under Congress ment that court concluded when, pursuant section the Court as disagree with teenth Amendment “expressly (cita- Act, 4(e) prior Rights Id. it limited rights.” Voting of the of constitutional reach expand a omitted). in order to doctrine Supreme Court tion Fourteenth Amend- guaranteed Belgard in read the district I believe By F.Supp. at 516. Belgard, 883 ment.” broadly. holding too Morgan of scope Lassiter, of appreciate the limits failing to the limits understand properly To implied that the Belgard in district court theory, I re Morgan or second substantive Morgan inter- in Supreme Court’s decision case, plaintiffs In that Lassiter. visit actually did. broadly than it more preted § 5 North challenge to a facial brought nearly identi requirement literacy Carolina unavailing. Sasnett equally I Sasnett find Morgan. requirement York cal to the New of brought by a number challenge involved concluded Belgard, the Court noted As against prison inmates Wisconsin “ on illiteracy are neutral ‘literacy and that prop- types personal regulating the rules Lassiter, 360 (quoting at 515 race.’” holding erty they possess. could However, 990). at 79 S.Ct. at constitutional, court in Sasnett the district “Of noted: importantly Lassiter Court The Morgan. great placed reliance face, may test, be on its literacy fair course reasoning a line of similar court followed that discrimination perpetuate employed to Belgard and “Lassiter that of concluded: de the Fifteenth is to Act what Voting Rights Smith to the influence No such signed uproot. Act.” Restoration Religious Freedom at 79 S.Ct. at charged here.” 360 U.S. be 1317. It should clear F.Supp. at preclude holding did not The Lassiter 991. the Bel- I believe analysis thus far that my challenge a constitutional that possibility Lassiter have read gard Sasnett courts Carolina liter of the North application a false thereby perceived broadly and too might be successful. acy requirement Las- Morgan. Lassiter and between conflict Katzenbach, 86 S.Ct. 383 U.S. at See clearly limited to holding was siter’s light considerable 821. This sheds litera- North Carolina challenge to facial theory of 5 Morgan second substantive the Comb sim- Morgan, cy requirement. simply noted Supreme Court power. judgment Congress’s that ply determined 5, Congress examine that, could literacy facially requirement neutral behind, a of, policy decisions effect example, of invidious application an was in “the literacy requirement determine equal protection violative discrimination require literacy York’s New application of Court long as the upset as would not Mor discrimination. was invidious ment” A for this conclusion. perceive basis Thus, gan, 384 U.S. inter- precise proper understanding constitutional Morgan were not Lassiter decisions Supreme Court these two play of not, did Morgan Court ly inconsistent.17 Morgan Morgan. the limits demonstrates Congress could provide that by implication, aas passage of RFRA support the does not constitu Supreme Court’s disagree with § power. of 5 valid rather, Morgan provided judgment; tional alterna- offered an court also literacy The Sasnett that a determine Congress could Congress’s use justification for valid, tive remedial facially adjudged to be requirement, Under RFRA. power to enact dis invidious application constitute may in court concluded approach, the district Fourteenth violation crimination in attempted to define has not “Congress Clause. Equal Protection Amendment’s Morgan theo- (1993) (concluding the second Note, Supreme Court Re- When The 17. But see disagree expressly Congress can ry “holds Rights, Can Save stricts Constitutional reach constitutional as to the Four- Section Us? An Examination rights”). Amendment, 141 U.Pa.L.Rev. teenth Amendment; rather, First merely it pro- has RFRA is neither remedial supplemen nor hibited lawful activity tal, otherwise as a means but Morgan definitional. upheld a law of further enforcing rights.” which, indicated, as the Court F.Supp. is, essence, 1318. This might have rationally concluded would either “statutory, not right argu- constitutional” remedy past invidious pre discrimination or ment which government advances in the vent future discriminatory conduct. present case. The Sasnett court RFRA, found it however, Congress establishes a re “obvious that RFRA is a rational jected means analysis method of for all free exercise safeguarding the core constitutional simply claims Congress interprets exercise, free judicially as defined.” Ex- Id. the Free Exercise differently Clause than plaining Congress’s RFRA, intent passing in Court. prophylaxis This not the district court “Congress continued: de- but unconstitutional interbraneh hegemony. termined that requiring plaintiffs to prove As Justice Mitchell, Harlan stated in “[to] that state actors intended to discriminate on allow simple majority of Congress to have basis of an evidentiary creates say final on matters of constitutional inter barrier to the protection full of constitutional pretation is ... fundamentally out keeping rights_ wholly It was rational for Con- with the constitutional structure.” 400 U.S. gress to have concluded that [RFRA] would at (Harlan, J., concurring greater add protection to First Amendment part and dissenting part). Consequent guarantees.” Id. ly, I would hold that the enactment of RFRA not a valid power. exercise of To I

Again, believe that the Sasnett court’s hold otherwise would be inconsistent with the reliance on Morgan misplaced. judicial essence of separation review Sasnett concluded only way powers. Boerne, City See Flores v. “substantively scope altered the of F.Supp. (W.D.Tex.1995) (holding RFRA rights federal to free religious exercise was separation unconstitutional under the pow by obviating proof of discriminatory intent doctrine). ers grants Section 5 Congress the the part of actors.” state 1319. How- power to supplement, subvert, not the Su ever, I believe important there is an differ- preme underlying Court’s ju ence between a congressional enactment risprudence. which invalidates a practice state law or the absence of discriminatory intent, see Morgan, 384 U.S. 86 S.Ct. at III. 1724-25; see City Rome v. United Because

States, not power does under 5 of the Fourteenth (1980), Amendment to L.Ed.2d congressional and a en- enact I would hold that Religious actment which summarily imposes an across- Freedom Restoration Act is unconstitution- the-board standard for the evaluation of free al.18 Accordingly, I would judg- vacate claims that the Supreme Court has ment of the district court and remand the criticized and Through abandoned. RFRA’s case further proceedings. passage, Congress did attempt not to root particular evil, out a tests, such literacy as which were often means for perpetuating discrimination,

racial but simply expressed judgment normative “governments substantially

should not burden ex-

ercise without compelling justification.” 42 2000bb(a)(3).

U.S.C. given This the role Supreme Court, Congress, not by the

Constitution.

18. Because I would hold that arguments was with- dants' that RFRA violates the Tenth power out enact RFRA and, 5 of the Four- applied, violates the Estab- Amendment, teenth I reach defen- lishment Clause.

Case Details

Case Name: Mark Hamilton v. Dora Schriro

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 12, 1996

Citation: 74 F.3d 1545

Docket Number: 94-3845

Court Abbreviation: 8th Cir.