ANDREW T. MILLER v. WILLIAM K. MARSHALL, et al.
CIVIL ACTION NO. 2:23-cv-00304
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION
July 18, 2023
Pending before the court is Plaintiff‘s Motion for Preliminary Injunction [ECF No. 5], and Defendants’ Motion to Dismiss or, in the Alternative, Motion for Summary Judgment [ECF No. 13].
The question presented by this case is whether the state of West Virginia may validly require incarcerated individuals, as a condition of eligibility for parole, to complete a substance abuse treatment program alleged to involve pervasive religious elements. Despite its longstanding nature, West Virginia‘s program has never previously faced judicial scrutiny. In other states, however, numerous courts have reviewed similar programs and unanimously found them to contain “such substantial religious components that governmentally compelled participation in [them] violate[s] the Establishment Clause.” Inouye v. Kemna, 504 F.3d 705, 714 n.9 (9th Cir. 2007) (Hawaii); see, e.g., O‘Connor v. State of Cal., 855 F. Supp. 303, 308 (C.D. Cal. 1994) (California); Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) (Wisconsin); Griffin v. Coughlin, 673 N.E.2d 98 (N.Y. 1996) (New York); Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478 (Tenn. 1997) (Tennessee); Ross v. Keelings, 2 F. Supp. 2d 810 (E.D. Va. 1998) (Virginia); Jackson v. Nixon, 747 F.3d 537 (8th Cir. 2014) (Missouri); Janny v. Gamez, 8 F.4th 883 (10th Cir. 2021) (Colorado). At this juncture, I have been provided with no evidence that West Virginia‘s program is any less religious or less coercive than the programs invalidated in other jurisdictions. Having determined that Plaintiff is likely to succeed on the merits, his Motion for Preliminary Injunction [ECF No. 5] is GRANTED, and Defendants’ Motion to Dismiss [ECF No. 13] is DENIED.
I. Background
Plaintiff Andrew Miller, an inmate in the custody of the West Virginia Division of Corrections and Rehabilitation (“WVDCR“), alleges that he “has been denied parole at least in part because of his refusal to participate in religious exercises that violate his beliefs.” [ECF No. 6, at 1]. Mr. Miller is “an atheist and Secular Humanist” who objects to the “pervasively religious” nature of the Residential Substance Abuse Treatment (“RSAT“) program administered by WVDCR. [ECF No. 1, ¶¶ 83, 143].
Mr. Miller is currently incarcerated at Saint Marys Correctional Center and Jail (“SMCC“), serving a one- to ten-year indeterminate sentence for breaking and entering. [ECF No. 1, ¶ 5]. He was sentenced on September 21, 2020. Id. ¶ 82. Absent parolе, he is projected to be released in April 2025. Offender Search, W. Va. Div. of
“Although substance use was not a factor in his offense,” Mr. Miller was placed in the RSAT program based on his Level of Service/Case Management Inventory (“LS/CMI“) assessment during the inmate classification process. Id. ¶ 86. Mr. Miller “is a recovering addict and believes in the disease model of addiction.” Id. ¶ 85. Prior to his incarceration, he received secular treatment and maintained his sobriety for four years. Id. Mr. Miller enrolled in RSAT upon arriving at SMCC in June 2021. Id. ¶ 88. Upon enrolling, “it immediately became apparent to Andrew that the program was pervasively religious.” Id. ¶ 97. These religious elements led Mr. Miller to withdraw from RSAT after approximately five days at SMCC.
As alleged in the Complaint, the RSAT curriculum relies heavily on the “Twelve Steps” developed by Alcoholics Anonymous (“AA“) and Narcotics Anonymous (“NA“), and on other religious materials. Id. ¶¶ 44–81. For example, the RSAT handbook contains inserts that include “the Lord‘s Prayer, Twelve Promises, Twelve Traditions, the Serenity Prayer, and the Twelve Steps.” Id. ¶ 44. The Twelve
RSAT participants “progress through five phases over the course of the program, which lasts at least six months and may last as long as 12.” [ECF No. 1, ¶ 49]. To progress through each phase, participants must “demonstrate knowledge” of the Twelve Steps. Id. ¶¶ 52–59. They must also attend at least 115 AA/NA meetings, which promote the Twelve Steps and involve daily prayer. Id. The AA “Big Book” contains a chapter that “tells atheists and agnostics they are ‘doomed to an alcoholic death’ unless they seek Him.” Id. ¶ 66. “The chapter goes on to deride the nonreligious as ‘handicapped by obstinacy, sensitiveness, and unreasoning prejudice.‘” Id. In addition to requiring attendance at AA/NA meetings, RSAT further promotes the Twelve Steps through “mandatory courses” during which “participants must respond to a number of prompts about ‘GOD,’ including: ‘This is what God means to me,’ ‘This is what I think God is like,’ ‘This is how God takes care of me (or could take care of me),’ and ‘This is a picture that shows how I feel (or would feel) while being taken care of by God.‘” Id. ¶¶ 62, 64. Plaintiff asserts that he and other RSAT participants “were required to discuss and ruminate on” daily materials that
Mr. Miller “is an atheist and Secular Humanist and has identified as such since August of 2020.” Id. ¶ 83. In early July 2021, he “learned that he was classified as ‘Christian’ in the Offender Information System despite the fact that he never identified himself as Christian to any WVDCR official and he had identified as atheist and Secular Humanist prior to his sentencing.” Id. ¶ 107. At his request, Mr. Miller‘s “classification was changed to atheist on July 13, 2021.” Id. ¶ 108.
On July 12, 2021, Mr. Miller sent a letter to Betsy Jividen, who was WVDCR Commissioner at the time, objecting “to the religious nature of the RSAT program.” Id. ¶ 109. He requested either that RSAT be removed from his Individual Reentry Program Plan (“IRPP“), or that secular accommodations be provided. Id. Specifically, Mr. Miller “suggested that he could receive substance abuse treatment through PSIMED and participate in the Cognitive Behavior Intervention for Substance Abuse (CBISA) and Thinking for a Change classes (courses also provided through the RSAT program) without also being subjected to the religious elements found in other parts of the RSAT Program.” Id. Mr. Miller explained that he is “willing to complete a substance abuse program as long as it is non-religious in nature.” [ECF No. 5-8]. He
On July 22, 2021, Defendant Medina Prue, RSAT Program Manager for WVDCR, responded to Mr. Miller‘s letter to then-Commissioner Jividen. [ECF No. 1, ¶¶ 7, 110]. “In her letter, Defendant Prue acknowledged that Andrew was classified as an atheist but nevertheless denied his request for an accommodation.” Id. ¶ 110. She recognized that “[o]ne of the main reasons a person avoids or dislikes [AA/NA] meetings are due to the emphasis on spirituality,” but explained that “it is important to understand the difference between spirituality and religion.” [ECF No. 5-9].
Just after writing to then-Commissioner Jividen, Mr. Miller was “suddenly moved” to Parkersburg Correctional Center and Jail (“PBCC“) on July 15, 2021. [ECF No. 5-15, at 2]. On July 23, 2021, he filed Grievance No. 21-PBCC-86-0021 (“Grievance I“) with his PBCC Unit Manager, Jason Larsen, requеsting that RSAT be removed from his IRPP. [ECF No. 1, ¶ 111; ECF No. 5-10]. Mr. Larsen denied his request, stating that RSAT is “designed to give you tools to be able to use upon being released to help you with your addiction” and that he “cannot remove the RSAT off of [Mr. Miller‘s] Case Management Plan that is done at central office in Charleston.” [ECF No. 1, ¶ 111; ECF No. 5-11]. Mr. Miller appealed Mr. Larsen‘s denial of Grievance I to Aaron Westfall, Superintendent of PBCC, who “concurred with Mr. Larsen‘s decision.” [ECF No. 1, ¶ 113]. Finally, Mr. Miller “appealed Grievance I to the Office of the Commissioner.” Id. ¶ 116. On August 11, 2021, that appeal was
Meanwhile, on July 25, 2021, Mr. Miller filed an additional grievance, No. 21-PBCC-86-0023 (“Grievance II“), “requesting the opportunity to sign up for CBISA and Thinking for a Change without participating in the larger RSAT program.” [ECF No. 1, ¶ 112]. Once again, Mr. Larsen denied his request, and Mr. Westfall and the Commissioner both concurred in that denial on appeal. Id. ¶¶ 114, 117–18. Mr. Larsen explained that “[i]n the RSAT program CIBISA [sic] and Thinking for A Change is [sic] taught.” [ECF No. 5-13]. Also in late July 2021, Mr. Miller “spoke directly with Defendant Prue and reiterated his request for an accommodation. She responded that inmates do not get to dictate the classes they take and prevailed upon him to reenter the RSAT program.” [ECF No. 1, ¶ 115].
In September 2021, Mr. Miller reenrolled in RSAT and remained enrolled for about two months. Id. ¶ 90. While participating in the program, RSAT Elders—inmates who already completed RSAT—“assigned him the job of Education Coordinator” (“EC“). Id. ¶¶ 32, 101. “As EC, he was required to present courses to other RSAT Program particiрants,” using materials developed by Texas Christian University (“TCU“) and “promoting specifically a Christian worldview and a reliance on the Twelve Steps.” Id. ¶ 102. “In addition to the TCU-developed courses he was
In November 2021, Mr. Miller withdrew from the RSAT program at PBCC. Id. ¶ 90. In December 2021, he went before the Parole Board Panel and received a “Deferred/Contingent Status, subject to obtaining an approved place of residency and completing RSAT.” Id. ¶ 130. Mr. Miller then wrote to Defendant Leslie Hill, the WVDCR Director of Classification, “to again request that RSAT be removed as a required part of his IRPP.” Id. ¶ 119. In his letter, dated March 7, 2022, Mr. Miller outlined his objections to the religious components of RSAT and explained how his prior requests for accommodation were “denied or subverted in some way.” [ECF No. 5-15]. For example, he was denied enrollment in the CBISA program unless he took it as part of RSAT. Additionally, he “had just been approved to participate in one-on-one therapy through Psi-Med at [SMCC], when [he] was suddenly moved” to PBCC, where he “was informed that there is no money budgeted for therapy at this institution.” Id. On March 17, 2022, Defendant Misty Adams, Deputy Director of Programs, responded to Mr. Miller‘s letter to Defendant Hill. [ECF No. 1, ¶ 120]. Ms. Adams denied his request and provided him with “A Humanist Alternative to AA‘s
Mr. Miller subsequently reenrolled in RSAT in early May 2022, at which point he had progressed to Phase 3 of the program. [ECF No. 1, ¶¶ 90–91]. On May 10, 2022, Mr. Miller was transferred from PBCC to Beckley Correctional Center and Jail (“BCC“). Id. ¶ 92. “Andrew initially agreed to continue participating in the RSAT Program at BCC. However, after learning that he would be returned to Phase 1 of the RSAT Program, he declined to continue.” Id. ¶ 93. Shortly thereafter, Mr. Miller returned to PBCC from June 16 to September 9, 2022. Id. ¶ 84. In September 2022, he was transferred to SMCC, where he has remained incarcerated until now. Id. ¶ 95. According to Mr. Miller, “[t]he content of the RSAT Program in the RSAT Units [he] resided in at SMCC, PBCC, and BCC is substantively identical.” Id. ¶ 96.
On May 28, 2022, Mr. Miller filed Grievance No. 22-BCC-RSAT-23 (“Grievance III“), “describing his efforts to obtain an accommodation, the lack of any meaningful accommodation, and once again requesting that completion of the RSAT Program be removed from his IRPP. His Unit Manager, Gary Webb, denied Grievance III as duplicative of Grievance I.” Id. ¶ 121. On August 8, 2022, Mr. Miller filed Grievance No. 22-PBCC-86-0038 (“Grievance IV“), “in which he requested an opportunity to complete the RSAT program without being coerced to engage in religious activity and proposed that this be accomplished by providing access to Humanist reading material and secular substance abuse treatment alternatives to AA and NA, such as LifeRing.”
On April 3, 2023, Mr. Miller filed a Complaint asserting four federal causes of action pursuant to
The day after commencing this litigation, Mr. Miller filed a Motion for Preliminary Injunction asking for prompt accommodation of his sincerely held beliefs. [ECF No. 5]. In lieu of directly responding to the Motion for Preliminary Injunction, Defendants filed a Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment, in which they also set forth their arguments against the requested injunction. [ECF No. 13; ECF No. 14, at 15–16]. Mr. Miller filed both a reply in support of his own Motion as well as a response in opposition to the defendants‘. [ECF Nos. 16, 17]. Defendants filed a reply [ECF No. 18], and Plaintiff moved the court for leave to file a surreply, which he attached to the motion for leave [ECF No. 19]. Plaintiff‘s Motion for Preliminary Injunction [ECF No. 5] and Defendants’ Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment [ECF No. 13] are both ripe for decision.
II. Motion to Dismiss or for Summary Judgment
Defendants move to dismiss the Complaint or, in the alternative, for summary judgment on all claims. [ECF No. 13].
A. Legal Standards
i. Motion to Dismiss
A motion to dismiss filed under
In resolving a motion to dismiss under
ii. Motion for Summary Judgment
“[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery.”
If a motion under
In this case, the court declines to treat Defendants’ Motion [ECF No. 13] as one for summary judgment. Plaintiff properly filed a
In light of new exhibits introduced by Defendants’ Reply Memorandum [ECF No. 18], Plaintiff seeks the court‘s leave to file an attached surreply, [ECF No. 19]. Plaintiff requests “an opportunity to respond, to the extent that this Court intends to convert the Defendants’ motion to one for summary judgment and consider documents outside the pleadings.” Id. Because the court declines to convert Defendants’ Motion, no surreply is needed. Plaintiff‘s motion for leave [ECF No. 19] is DENIED.
I will now examine the Complaint to determine whether its factual allegations, taken as true, state valid claims for relief.
i. RLUIPA Claim (Count I)
In Count I, Plaintiff asserts a claim under RLUIPA, which provides, in pertinent part:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
I first consider whether Plaintiff has alleged government action that implicates his religious exercise. Mr. Miller complains that he “is an atheist and Secular
Mr. Miller further alleges that his exercise of those atheistic beliefs is substantially burdened by the defendants’ actions. A claimant‘s religious exercise is substantially burdened where the government‘s actions require him to “engage in conduct that seriously violates [his] religious beliefs.” Holt, 574 U.S. at 361 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014)). “A substantial burden either puts pressure on a person to change his religious beliefs or puts that person to a choice between abandoning his religion or following his beliefs and losing some government benefit.” Firewalker-Fields v. Lee, 58 F.4th 104, 114 (4th Cir. 2023).
ii. First Amendment Claims
Mr. Miller asserts three claims, pursuant to
In Count II, Mr. Miller asserts that “[b]y imposing the pervasively religious elements of the RSAT Program on the Plaintiff as a necessary condition for parole eligibility, the Defendants used the coercive power of the state to force the Plaintiff to engage in the exercise of religion in violation of the Establishment Clause.” [ECF No. 1, ¶ 143]. Although Establishment Clause jurisprudence is hardly a paragon of clarity, “[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a state religion or religious faith, or tends to do so.” Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)); accord Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2429 (2022) (“[T]he government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory.‘” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))). When presented with a coercion-based claim, courts employ a three-part inquiry established by the Seventh Circuit in Kerr v. Farrey: “first, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religiоus or secular?” 95 F.3d at 479; see, e.g., Janny, 8 F.4th at 908 (applying Kerr test); Jackson, 747 F.3d at 542 (same).2 All three prongs are easily met by the facts alleged here.
Second, this state action plainly amounts to coercion. A government exercises coercive power over an individual when his noncompliance subjects him to “meaningful penalties,” including the denial of benefits. Kerr, 95 F.3d at 479 (finding coercion where inmate‘s refusal to attend NA meetings triggered “classification to a higher security risk category and adverse notations in his prison record that could affect his chances for parole“); see Griffin, 673 N.E.2d at 105 (“[T]he State, through its correctional authorities . . . , has exercised coercive power to advance religion by denying benefits of eligibility for the Family Reunion Program to atheist and agnostic inmates who object and refuse to participate in religious activity which is an inextricable part of the [Alcohol and Substance Abuse Treatment] Program.“). Here, Mr. Miller alleges that he “is required to complete the RSAT Program in order to be eligible for parole,” [ECF No. 1, ¶ 86], and that his security classification is adversely affected by non-participation, id. ¶¶ 38–39 (“The points assigned to an inmate are
As Defendants point out, “parole itself is not a constitutional right.” [ECF No. 14, at 13 (citing Vann v. Angelone, 73 F.3d 519, 521–22 (4th Cir. 1996))]. As such, “a state has no duty to establish a system of parole, and if it chooses to do so, federal courts should allow a state‘s parole authorities a wide range for experimentation and the exercise of discretion.” Vann, 73 F.3d at 521. But once a state establishes a system of parole, an inmate “does have the right to be free from unconstitutional burdens when availing himself of existing ways to access the benefit of early parole.” Jackson, 747 F.3d at 543 (“The fact that Jackson did not have a constitutional right to, or statutory guarantee of, early parole does not preclude him from stating a claim of unconstitutional coercion.“); accord Lee, 505 U.S. at 596 (“It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit [his] rights and benefits as the price of resisting conformance to state-sponsored religious practice.“).
The third prong of the Kerr test requires more discussion, but its application is also quite straightforward. The Complaint is replete with allegations that RSAT relies heavily on twelve-step programming and expressly requires participants to attend dozens of AA/NA meetings. See id. ¶¶ 40–76, 97–105. It is well-established that the Twelve Steps “are based on the monotheistic idea of a single God or Supreme
These courts have also rejected the argument—now asserted by Defendants—that twelve-step programs are merely “spiritual” rather than religious, and therefore do not offend the First Amendment. See discussion infra. But even if these were accurate characterizations of the law and the twelve-step elements of RSAT, Mr. Miller‘s Complaint contains additional allegations sufficient to maintain his claim. Plaintiff alleges that the RSAT Handbook contains the Lord‘s Prayer, [ECF No. 1, ¶ 44]; that RSAT course materials “frame the topics from a specifically Evangelical Christian worldview,” id. ¶ 62; that “material[s] on the ‘Thoughts of the Day’ board were often theistic in nature and almost always expressed a specifically Christian belief,” id. ¶ 98; that reading materials in the RSAT unit “are almost entirely religious in nature and no religious viewpoints other than Christianity are represented, id. ¶ 100; and that “painted phrases” on the walls of the RSAT Unit at PBCC included
Indeed, Defendants’ insistence that they have provided Mr. Miller with a “secular alternative” to RSAT would seem to belie the otherwise non-secular nature of the program. See [ECF No. 18, at 2; ECF No. 18-2, at 2 (distinguishing “non-religious material” from “traditional 12 step programs of higher power“)]. Nevertheless, I address Defendаnts’ argument that “a secular version of the RSAT program exists and is available to the Plaintiff should he choose to participate.” [ECF No. 18, at 5]; cf. O‘Connor, 855 F. Supp. at 308 (holding Establishment Clause was not violated where individuals convicted of drunk driving had a choice over whether to attend AA or another “viable, although less frequently offered, self-help program that does not use any concept of ‘spirituality’ to treat alcohol-related problems“).
This argument fails for at least two reasons. First, Mr. Miller‘s allegations suggest that Defendants have not provided the accommodations they offered. See [ECF No. 1, ¶ 128 (“Despite his repeated requests for accommodation, as of the filing of this action, the purported secular handbook has never actually been provided to Andrew and the only action WVDCR has ever taken to address his objections was to provide him with the single-page ‘A Humanist Alternative to AA‘s Twelve Steps.‘“)]. Second, even if Defendants had followed through on their promises to provide Mr. Miller with secular materials, “such an accommodation would not be sufficient as it
The factual allegations contained in the Complaint, if true, show that the state of West Virginia has coerced Plaintiff into religious exercise. Because the Complaint sufficiently alleges a violation of the Establishment Clause, Defendants’ Motion to Dismiss is DENIED as to Count II.
2. Free Exercise Clause (Count III)
In Count III, Mr. Miller argues that Defendants violated his rights under the Free Exercise Clause “[b]y forcing the Plaintiff to participate in a program expressly hostile to his beliefs and by refusing to accommodate the Plaintiff‘s exercise of his own sincerely held beliefs.” [ECF No. 1, ¶ 150]. Under the
The first Turner factor demands a “valid, rational connection” between a challenged prison regulation and the legitimate government interest put forward to justify it. Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586
In response, Mr. Miller argues that “Defendants have made no аttempt to show a ‘valid, rational connection’ between the religious elements of the RSAT program and the governmental interest put forward to justify it.” [ECF No. 17, at 16]. Plaintiff emphasizes that the government‘s rationale must pertain to the accommodation actually sought—in this case, that Mr. Miller “be excused from participating in the religious elements of the RSAT program, or to be allowed to receive substance abuse treatment through some other means.” Id. at 16–17 (citing Ali, 912 F.2d at 90). In Ali, an inmate converted to Islam and adopted a new name, which he requested be included in his prison record as an “a.k.a. addition.” 912 F.2d at 87, 89. The prison refused to add the new name to its records, requiring the inmate to use his former, “religiously offensive name” when collecting benefits to which he was entitled. Id. at 87, 90. To justify its refusal, the prison pointed to “the ‘administrative nightmare’
As in Ali, the defendants here have failed to put forth a relevant justification for their challenged conduct. The state may have legitimate interests in providing rehabilitative programs for inmates, but those interests relate only to the provision of substance use disorder treatment in general. Mr. Miller “is not suggesting that he be removed from all substance abuse treatment.” [ECF No. 17, at 17]. Defendants do not explain how any of their interests are furthered by the specific program being administered, nor how those interests would be compromised by accommodating Mr. Miller. Cf. [ECF No. 16, at 12–13 (noting that a truly secular program may even enhance the government‘s ability to satisfy its purported interest in rehabilitating inmates through substаnce use disorder treatment)]. Because Defendants have not put forth a legitimate government interest with a “valid, rational connection” to the prison policy at issue, the first Turner factor favors Mr. Miller.
Turner next directs the courts to consider “whether there are alternative means of exercising the right that remain open to prison inmates.” 482 U.S. at 90. “A lack of alternatives does not end the reasonableness analysis but is some evidence that the regulations are unreasonable.” Heyer v. U.S. Bureau of Prisons, 984 F.3d 347, 357 (4th Cir. 2021) (quoting Overton v. Bazzetta, 539 U.S. 126, 135 (2003)). The
In some cases, however, “certain aspects of the Turner framework do not apply,” or require modification, because the rights asserted “are not amenable to alternative modes of expression.” Burns v. Martuscello, 890 F.3d 77, 87 (2d Cir. 2018). Mr. Miller argues that this is true of coercion-based claims, because “[o]nce the government has coerced someone into participating in religious activities . . . [i]t is of no moment that there are also times when the person is not being so coerced.” [ECF No. 17, at 18]. Unlike in the typical case where a prison policy prevents inmates from exercising their religious beliefs in some ways but not others, Mr. Miller challenges a policy that forces him to affirmatively “engage in conduct that seriously violates” his beliefs. Holt, 574 U.S. at 361 (quoting Burwell, 573 U.S. at 720). Though the distinction between prohibition and coercion can sometimes become blurred, compare Kuperman v. Wrenn, 645 F.3d 69, 75 (1st Cir. 2011) (framing issue as prison forbidding inmate from “growing a full beard“), with Benjamin v. Coughlin, 905 F.2d 571, 573 (2d Cir. 1990) (framing issue as prison requiring inmates “submit to a
The third Turner factor considers “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90. Mr. Miller essentially proposes three possible avenues for accommodating his beliefs: (1) that he participate in the secular portions of RSAT, such as the CBISA and Thinking for a Change classes, but be excused from the program‘s religious elements, [ECF No. 1, ¶ 109]; (2) that he participate in alternative, secular programming, including “access to Humanist reading material and secular substance abuse treatment alternatives to AA and NA, such as LifeRing,” id. ¶ 122; or (3) that RSAT be removed from his IRPP altogether, id. ¶ 121. The first option solely involves programming already administered through RSAT. With respect to secular alternatives, Mr. Miller notes that “[n]umerous SMART Recovery and LifeRing meetings take place every day of the week and provide an option for virtual attendance.” [ECF No. 17, at 18]. Furthermore, if
Finally, Turner directs courts to consider the availability of alternative means of achieving the penological interests advanced by prison authorities. 482 U.S. at 90. “[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation,” while “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” Id. In Turner, the Supreme Court clarified that “[t]his is not a ‘least restrictive alternative’ test . . . [b]ut if an inmate claimant can point to an alternative that fully accommodates the prisoner‘s right at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. at 90–91. Although Mr. Miller “bears a not
In sum, the Turner factors all suggest that WVDCR‘s policy is unreasonable. Turner, 482 U.S. at 89. Accordingly, the allegations contained in Mr. Miller‘s Complaint are sufficient to state a claim under the Free Exercise Clause. Defendants’ Motion to Dismiss is DENIED as to Count III.
3. Free Speech Clause (Count IV)
“Congress shall make no law . . . abridging the freedom of speech.”
Defendants are correct that Plaintiff has not alleged that he has been prevented from expressing his own secular beliefs. But it is well established that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing Bd. of Educ. v. Barnette, 319 U.S. 624, 633–34 (1943)). “[A] state measure which forces an individual, as part of his daily life . . . to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable . . . ‘invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.‘” Id. at 715 (quoting Barnette, 319 U.S. at 642). To determine whether a governmentally compelled activity “possesses sufficient communicative elements to bring the First Amendment into play,” courts ask whether “an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.” Stuart v. Camnitz, 774 F.3d 238, 245 (4th Cir. 2014) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)) (internal markings omitted).
For the same reasons supporting Mr. Miller‘s Free Exercise claim, his Free Speech claim survives dismissal. As in the Free Exercise analysis, Defendants have not articulated legitimate interests in requiring Mr. Miller and other RSAT participants to deliver and demonstrate knowledge of religious course materials. Once again, Defendants rely on only a general interest in rehabilitating inmates,
Because Mr. Miller‘s Complaint states viable claims for relief in all four counts, Defendants’ Motion to Dismiss [ECF No. 13] is DENIED in its entirety.
III. Motion for Preliminary Injunction
Having found that Mr. Miller‘s Complaint states valid claims for relief, I now turn to his Motion for a Preliminary Injunction. [ECF No. 5]. In connection with this Motion, Mr. Miller also filed a Motion for Argument, asking the court to set oral argument on his request for an injunction. [ECF No. 26]. Because the issues have been fully briefed, and oral argument would not aid the court‘s decision-making, the Motion for Argument [ECF No. 26] is DENIED. Based on the parties’ thorough filings, I now address the propriety of a preliminary injunction.
A. Legal Standard
Upon notice to the adverse party, a district court may issue a preliminary injunction.
“The principal function of a preliminary injunction is to maintain the status quo,” id. at 231, and “to prevent irreparаble harm during the pendency of a lawsuit ultimately to preserve the court‘s ability to render a meaningful judgment on the merits,” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003), abrogated on other grounds by eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006). But where an applicant‘s right to relief is “indisputably clear,” the court may issue a “mandatory preliminary injunction” which “alter[s] rather than preserve[s] the status quo.” Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes
B. Discussion
i. Likelihood of Success on the Merits
I will first determine whether Mr. Miller has demonstrated a clear likelihood of success on the merits of any of his four claims. Because the facts of this case are largely undisputed, with all extrinsic evidence corroborating Plaintiff‘s allegations, the same reasons that weigh against dismissal also weigh in favor of granting the requested injunction. Under this prong of the preliminary injunction analysis, I will avoid merely reiterating the points discussed above, instead focusing on more nuanced arguments that were immaterial under the lower standard of
1. RLUIPA (Count I)
The party asserting a RLUIPA claim bears the initial burden of proving that the government‘s action (a) implicates his religious exercise, and (b) substantially
a. Religious Exercise
Mr. Miller “is an atheist and Secular Humanist and has identified as such since August of 2020, . . . prior to his sentencing.” [ECF No. 1, ¶¶ 83, 107]. Mr. Miller “does not believe in any deity or higher power, nor does he believe that the Universe, science, or any other abstract concepts have agency or willpower to which he could conceivably submit.” Id. ¶ 83. He “believes in helping others because it is the right thing to do.” Id. ¶ 84. As discussed above, Mr. Miller‘s sincerely held atheist beliefs are entitled to protection under RLUIPA.
Defendants are skeptical that Mr. Miller‘s beliefs are the true reason for his refusal to complete RSAT. They note that Mr. Miller has “expressed dissatisfaction with the program and doubts its effectiveness.” [ECF No. 14, at 2 (citing ECF No. 13-9) (“Also, I doubt the value of the program, and the facility is a dump. The groups/meetings are a joke, I highly doubt they are helping anyone stay sober.“)]. Based on this commentary, Defendants conclude “Plaintiff‘s own words indicate that he does not want to participate in RSAT for reasons having nothing to do with his allegations involving religion.” Id. at 14; cf. id. at 14–15 (“He can choose not to
b. Substantial Burden
A claimant‘s religious exercise is substantially burdened where the government‘s actions required him to “engage in conduct that seriously violates [his] religious beliefs.” Holt, 574 U.S. at 361 (quoting Burwell, 573 U.S. at 720). “A substantial burden either puts pressure on a person to change his religious beliefs or puts that person to a choice between abandoning his religion or following his beliefs and losing some government benefit.” Firewalker-Fields, 58 F.4th at 114.
Mr. Miller argues that certain requirements of the RSAT program “are directly in conflict with [his] exercise of his atheism and Secular Humanism.” [ECF No. 6, at 12]. He asserts that RSAT requires him to “falsely profess belief in a deity, repeatedly participate in religious activities he opposes, and engage in a course of treatment at odds with his sincere beliefs.” Id. “To ask an atheist or Secular Humanist to declare something to be their deity or ‘higher power’ is no less burdensome than asking a Christian to profess a belief in the [A]scension of the Prophet Muhammad into Heaven.” Id. at 14.
Defendants acknowledge—and the record confirms—that Mr. Miller is required to complete RSAT to become eligible for parole. See [ECF No. 14, at 13 (“The State of West Virginia, using its ‘considerable degree of discretion,’ has determined that the Plaintiff should complete the RSAT program prior to being released on
I first address Defendants’ argument that RSAT “is not religious in nature.” Id. Defendants do not dispute Mr. Miller‘s allegations as to the contents of the RSAT program, but they insist the program is merely spiritual rather than religious. See, e.g., [ECF No. 5-9 (acknowledging that required RSAT meetings place an “emphasis on spirituality” and “belief in a power higher than yourself” but explaining that “it is important to understand the difference between spirituality and religion”); ECF No.
But by attempting to draw a distinction between spirituality and religion, Defendants effectively concede that RSAT imposes specific spiritual beliefs on its participants. Promoting such beliefs in a coercive environment substantially burdens
Numerous courts have examined nearly identical programs and expressly rejected the arguments now advanced by Defendants. DOJ Twelve-Step FAQ, supra (“Courts have repeatedly found that traditional twelve-step programs contain religious content and are religious activities.”). For example, in Kerr, the Seventh Circuit considered whether a prison‘s NA program “escaped the ‘religious’ label because the twelve steps used phrases like ‘God, as we understood Him,’ and because the warden indicated that the concept of God could include the non-religious idea of willpower within the individual.” 95 F.3d at 479–80. The court rejected these contentions, finding “[a] straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being. . . . Even if we expanded the steps to include polytheistic ideals, or animistic philosophies, they are still fundamentally based on a religious concept of a Higher Power.” Id. at 480. Similarly, New York‘s high court was unpersuaded by the state prison‘s attempt to “eschew any intent to impose a particular sectarian set of beliefs or a particular concept of God upon participants.” Griffin, 673 N.E.2d at 102. The court conducted a meticulous review of the AA doctrinal texts and concluded:
[A] fair reading of the fundamental A.A. doctrinal writings discloses that their dominant theme is unequivocally religious. . . . Indeed, the A.A. basic literature most reasonably would be characterized as reflecting the traditional elements common to most theistic religions. . . . While A.A. literature declares an openness and tolerance for each participant‘s personal vision of God . . . , the writings demonstrably express an aspiration that each member of the movement will ultimately commit to a belief in the existence of a Supreme Being of independent higher reality than humankind. . . . [E]ven if respondents are correct that A.A. permits a secular interpretation of its doctrines and practices, undeniably its paramount theme, as we have demonstrated, favors a religious interpretation.
In this case, it is undisputed that RSAT participants must attend AA/NA meetings as part of their “Mandatory Phase-Up Requirements.” [ECF No. 18-3, at 4–7]. Defendants offer no evidence that these meetings differ in any way from the usual AA/NA program, which multiple courts have described as “comprising ‘intensely religious events.’” Inouye, 504 F.3d at 713 (quoting Warner v. Orange Cnty. Dep‘t of Prob., 115 F.3d 1068, 1075 (2d Cir. 1996)). Indeed, all the evidence in the record corroborates the overtly spiritual nature of AA/NA, as well as WVDCR‘s embracement and reinforcement of the twelve-step approach. See, e.g., [ECF No. 5-5 (examples of RSAT course materials focusing on the “decision to turn our will and our lives over to the care of God”); ECF No. 13-8, at 27 (directing members of the RSAT “Motivation Crew” to “[t]each new and current family members the meaning of spirituality and its relevance to recovery” and “[t]each new family members the Serenity Prayer and how it is used daily”)]. Regardless of the efficacy of AA/NA, it is
I next address Defendants’ argument that no RLUIPA violation has occurred “because there is a secular option for completing the RSAT program.” [ECF No. 14, at 13]. As discussed above, this argument fails both because secular accommodations were never implemented, and, moreover, because the proposed accommodations would not alleviate the program‘s legal shortcomings. Cf. [ECF No. 16, at 11 (“An admonition to simply think about kosher or halal foods while eating a meal that violates one‘s beliefs would be no accommodation for a religious individual. Providing [Mr. Miller] with secular material to think about while he is forced to attend and participate in religious activities, demonstrate proficiency with religious precepts, and deliver instructional material on religious concepts to other inmates, is equally laughable as an attempted accommodation.”)]. The record only bolsters these conclusions. For example, Defendants offer evidence of recent modifications to the program that purportedly “demonstrate that the WVDCR was already taking action to ensure that a secular version of the RSAT program was available to inmates.” [ECF No. 18, at 3]. In March 2022, Defendants Adams and Prue each sent emails directing WVDCR personnel “to ensure that the ‘Serenity Prayer’ was not being included as
In sum, the evidence before the court wholly supports Mr. Miller‘s allegations that the defendants have substantially burdened his protected religious exercise.
c. Least Restrictive Means of Furthering a Compelling Governmental Interest
Because Mr. Miller will likely succeed in making out a prima facie RLUIPA claim, the burden now shifts to WVDCR to show that curtailing his rights is the “least restriсtive means of furthering a compelling governmental interest.” Holt, 574 U.S.
But the rehabilitative interests proffered by Defendants, however compelling, at most legitimize “RSAT programs in general.” Id. “RLUIPA . . . requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person—the particular claimant whose sincere exercise of religion is being substantially burdened.” Holt, 574 U.S. at 362–63 (quoting Burwell, 573 U.S. at 726) (internal markings omitted). Defendants fail to identify any interests served by requiring Mr. Miller to complete the particular program at issue, which they also fail to show is the “least restrictive means” of
Having found that the state‘s objective does not justify the challenged program, I conclude that Plaintiff is likely to succeed on the merits of his RLUIPA claim.
2. First Amendment Claims Under Section 1983
a. Establishment Clause (Count II)
Succeeding on his Establishment Clause claim would require Mr. Miller to show (1) that the state acted, (2) the action amounts to coercion, and (3) the object of the coercion is religious rather than secular. Kerr, 95 F.3d at 479. As discussed above, all three parts of the Kerr test are met here. There is no dispute that the state of West Virginia has acted coercively by requiring Mr. Miller to complete the RSAT program before he may become eligible for parole. There is also no real dispute as to the
According to the defendants, the RSAT program “does not advance a religious ideology and does not substantially burden the Plaintiff‘s atheistic beliefs.” Id. at 8. But contrary to this assertion, the record reveals the undeniably religious nature of the program. See, e.g., [ECF No. 5-5 (directing RSAT participants to describe “what God means to me” and “how God takes care of me (or could take care of me)”); ECF No. 5-9 (explaining that RSAT includes an “emphasis on spirituality” and “is concerned with belief in a power higher than yourself”); ECF No. 13-8, at 27 (directing that “new family members” be taught “the Serenity Prayer and how it is used daily”)]. At a minimum, RSAT participants cannot complete the program—and become eligible for parole—without attending numerous AA/NA meetings. [ECF No. 18-3, at 5-8 (providing that advancement through all five phases of RSAT requires participants to attend at least 115 AA/NA meetings)]. Courts have unanimously found that the AA/NA program “has such substantial religious components that governmentally compelled participation in it violate[s] the Establishment Clause.” Inouye, 504 F.3d at 714 n.9; see, e.g., Warner, 115 F.3d at 1076 (“The County argues further that the non-sectarian nature of the A.A. experience immunizes its use of religious symbolism and practices from Establishment Clause scrutiny. The argument is at the very least factually misleading, for the evidence showed that every meeting [the probationer] attended included at least one explicitly Christian prayer.
Accordingly, I find that Mr. Miller will likely succeed on the merits of his Establishment Clause claim.
b. Free Exercise Clause (Count III)
To succeed on his Free Exercise claim, Mr. Miller must show a substantial burden on his religious exercise that is not reasonably related to legitimate penological interests. As discussed above, Mr. Miller easily meets the first part of this
As also discussed above, the Turner factors suggest the program is unreasonable. West Virginia‘s general interest in rehabilitating inmates bears no “valid, rational connection” to the religious nature of its treatment program. WVDCR‘s policy leaves Mr. Miller with no means of exercising his right against involuntary religious activity or his right to be free from unconstitutional burdens when seeking parole through existing channels. Mr. Miller has proposed several accommodations and alternatives that are readily available and impose minimal hardship on prison resources. Defendants make no attempt to refute the existence and feasibility of these options. All thеse undisputed circumstances indicate the unreasonableness of WVDCR‘s RSAT policy.
Because Mr. Miller has shown an unreasonable encroachment on his First Amendment rights, I find him likely to succeed on the merits of his Free Exercise claim.
c. Free Speech Clause (Count IV)
Like in the Free Exercise context, Mr. Miller‘s Free Speech claim requires him to show that Defendants’ policy impinges on his rights to freedom of speech without a reasonable relation to legitimate penological interests. As discussed above, Plaintiff easily meets his threshold burden of showing an impingement on his rights.
ii. Irreparable Harm
Having determined that Mr. Miller is likely to succeed on the merits of all four claims, I turn to the next step of the preliminary injunction analysis and inquire whether he is likely to suffer irreparable harm in the absence of preliminary relief. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (citing N.Y. Times Co. v. United States, 403 U.S. 713 (1971)). Thus, “in thе context of an alleged violation of First Amendment rights, a plaintiff‘s claimed irreparable harm is ‘inseparably linked’ to the likelihood of success on the merits of plaintiff‘s First Amendment claim.” W.V. Ass‘n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009).
Absent a preliminary injunction or final adjudication of this case, Mr. Miller either must complete the RSAT program or forgo even the possibility of parole. In other words, Defendants’ unmitigated actions force Mr. Miller to choose between two distinct but equally irreparable injuries: submit to government coercion and engage in religious exercise at odds with his own beliefs, or abandon any attempt to access a government benefit for which he may otherwise be eligible and remain incarcerated until at least April 2025. As discussed above, such a Hobson‘s choice violates the First Amendment and RLUIPA. Because Mr. Miller has shown a clear likelihood of a constitutional violation, he has shown irreparable harm. See Henry v. Greenville Airport Comm‘n, 284 F.2d 631, 633 (4th Cir. 1960).
iii. Balance of Equities and the Public Interest
Where, as here, the government is a party, the “balance of the equities” and “public interest” prongs of the preliminary injunction test merge. Nken v. Holder, 556 U.S. 418, 435 (2009). In evaluating the balance of the equities, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24. It is always in the public interest to uphold constitutional rights. Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 191 (4th Cir. 2013).
Granting this preliminary injunction would require “WVDCR to change its rehabilitative programming to accommodate the Plaintiff.” [ECF No. 14, at 16]. But contrary to Defendants’ assertion, such changes would not “negatively impact the
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24–25. Such relief is especially extraordinary when it alters rather than preserves the status quo. Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994). Nevertheless, I am satisfied that this is an extraordinary case that warrants extraordinary relief. Because “uncommonly well-settled case law”
Plaintiff‘s Motion for a Preliminary Injunction [ECF No. 5] is GRANTED.
C. Scope of Injunction
At bottom, Mr. Miller seeks an injunction that will put a stop to the defendants’ unconstitutional conduct. To that end, he proposes two possible forms of preliminary relief. [ECF No. 5]. Mr. Miller asks the court to order Defendаnts to accommodate his beliefs by either “[r]emoving from Plaintiff‘s IRPP any indication that participation in or completion of the RSAT program is to be a factor in his reentry,” or allowing him to complete a secular treatment program. Id. The latter form of proposed relief would include the following:
A) Recognizing and crediting Mr. Miller for the Twelve Step sessions he has attended, and the prior days in which he was enrolled in the RSAT program;
B) For the remaining balance of Twelve Step meetings Mr. Miller is required to attend in order to complete the RSAT program, permitting him to attend, virtually or in person, an alternative secular substance use disorder treatment session;
C) Excusing Mr. Miller (or otherwise refrain from penalizing Mr. Miller for refraining) from participation in
morning and evening devotionals that focus on, promote, or inculcate theistic beliefs or tenets; and D) Adopting policies preventing participants in the RSAT program from being subject to religious coercion through mandatory participation in religious elements and activities.
Id.
For several reasons, the court finds it more appropriate to enjoin the defendants from conditioning Mr. Miller‘s eligibility for parole upon his completion of the RSAT program. As an initial matter, federal courts should hesitate before inserting themselves into the day-to-day operations of state agencies. See Pro. Ass‘n of Coll. Educs., TSTA/NEA v. El Paso Cnty. Cmty. Coll. Dist., 730 F.2d 258, 273 (5th Cir. 1984) (“Intrusion of federal courts into state agencies should extend no further than necessary to protect federal rights of the parties.”). Although eliminating Plaintiff‘s RSAT requirement altogether may seem to diverge more dramatically from the status quo, this path involves much lеss intrusion into internal affairs of the state.
Moreover, this avenue will ensure Mr. Miller the meaningful relief to which he is plainly entitled. As just discussed, completing RSAT takes several months. Even if Mr. Miller were to receive immediate accommodation and begin secular treatment tomorrow, he is unlikely to complete the program prior to his next interview with the Parole Board Panel. And even if he becomes eligible for parole next year, he will have already served nearly four years of his projected five-year sentence. Although Mr. Miller has no entitlement to parole, the record strongly suggests that he would
Finally, while the court acknowledges the vital importance of rehabilitating inmates, this goal will not be undermined in this case. Mr. Miller is currently incarcerated for reasons having nothing to do with his substance use and “[p]rior to his incarceration, he took advantage of secular substance use disorder treatment methods and remained sober for four years.” [ECF No. 6, at 12]. He made multiple attempts to “grin and bear it and complete the RSAT program despite its pervasive religious content.” [ECF No. 5-1, ¶ 36]. While partiсipating, he went beyond his official duties and organized an additional group called Providing Answers for Transitioning Home. [ECF No. 5-6]. He has repeatedly maintained his willingness to complete a secular program, and he has demonstrated substantial knowledge of secular treatment options. See, e.g., [ECF No. 5-8 (discussing various “evidence based treatment methods”)]. Given Mr. Miller‘s demonstrated commitment to his own rehabilitation, whatever marginal benefit could be gained from his completion of RSAT is far outweighed by the harms that would befall him if required to do so.
IV. Conclusion
Based on the foregoing, Defendants’ Motion to Dismiss [ECF No. 13] is DENIED. Plaintiff‘s Motion for a Preliminary Injunction [ECF No. 5] is GRANTED. Defendants are hereby ORDERED to remove the RSAT program from Mr. Miller‘s IRPP and to ensure that participation in or completion of the RSAT program is not considered as a factor in his eligibility for parole. Plaintiff‘s motions for leave [ECF No. 19] and for argument [ECF No. 26] are DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court‘s website, www.wvsd.uscourts.gov.
ENTER: July 18, 2023
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE
Notes
In 1990, the Supreme Court decided Employment Division v. Smith, 494 U.S. 872 (1990), and has since “made clear that neutral laws of general application which only incidentally burden religion are not constitutionally suspect.” Firewalker-Fields, 58 F.4th at 114 n.2 (citing Fulton v. City of Phila., 141 S. Ct. 1868, 1876 (2021)). Thus, the Court “reject[ed] the substantial-burden balancing test” in favor of the “neutral-and-generally-applicable test.” Id. Under this modern approach, a claimant makes his threshold showing if the challenged action is non-neutral or does not apply generally. If that showing is made, the challenged action is examined under Turner, or strict scrutiny, depending on the setting in which the claim is asserted. Fulton, 141 S. Ct. at 1881.
The Fourth Circuit, however, “still applies a ‘substantial burden’ threshold test” before proceeding to the Turner analysis. Firewalker-Fields, 58 F.4th at 114 n.2; see, e.g., Greenhill, 944 F.3d at 253; Carter v. Fleming, 879 F.3d 132, 139-40 (4th Cir. 2018). The court acknowledges that its approach “appears to be out-of-date,” and that “[a] more accurate application of the Supreme Court precedents in this area would look to whether the prison policy or regulation was ‘neutral and generally applicable’ and then, if not, apply Turner. Firewalker-Fields, 58 F.4th at 114 n.2 (quoting Fulton, 141 S. Ct. at 1876). Nevertheless, the Fourth Circuit has not had occasion to modify its approach, and the “substantial burden threshold test” remains good law in this jurisdiction. Id.
Despite this wrinkle in the law, analyzing Mr. Miller‘s Free Exercise claim is relatively simple. As in Firewalker-Fields, “the threshold standard will not matter in this case.” Id. In upholding Mr. Miller‘s RLUIPA and Establishment Clause claims, I have already determined that the conduct at issue both substantially burdens his religious exercise and is non-neutral. As such, Mr. Miller‘s allegations satisfy the threshold showing for his Free Exercise claim regardless of which test applies.