The eleventh circuit's restatement of RLUIPA's compelling
interest/narrowly tailored standard based on a snippet of legislative
history and some language from Cutter v. Wilkinson respecting due
deference would make George Orwell proud:
Although the RLUIPA protects, to a substantial degree, the religious
observances of institutionalized persons, it does not give courts
carte blanche to second-guess the reasoned judgments of prison
officials. Indeed, while Congress enacted the RLUIPA to address the
many frivolous or arbitrary barriers impeding institutionalized
persons' religious exercise, it nevertheless anticipated that courts
entertaining RLUIPA challenges would accord due deference to the
experience and expertise of prison and jail administrators. Cutter
v. Wilkinson, 544 U.S. 709, 71617 (2005) ( quoting 146 Cong. Rec.
16698, 16699 (2000) (joint statement of Sens. Hatch and Kennedy on the
RLUIPA)). The Supreme Court has cautioned that [w]e do not read
RLUIPA to elevate accommodation of religious observances over an
institution's need to maintain order and safety, and an
accommodation must be measured so that it does not override other
significant interests. Id. at 722. The Court further instructed:
We have no cause to believe that RLUIPA would not be applied in an
appropriately balanced way, with particular sensitivity to security
concerns. While the Act adopts a compelling governmental interest
standard, context matters in the application of that standard.
Lawmakers supporting RLUIPA were mindful of the urgency of discipline,
order, safety, and security in penal institutions. They anticipated
that courts would apply the Act's standard with due deference to the
experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good
order, security and discipline, consistent with consideration of costs
and limited resources.
Id. at 72223 (internal quotation marks and citations omitted). This
deference is not, however, unlimited, and policies grounded on mere
speculation, exaggerated fears, or post-hoc rationalizations will not
suffice to meet the act's requirements. Rich v. Secretary, Florida
Dep't of Corrections, 716 F.3d 525, 533 (11th Cir.2013) (internal
quotation marks omitted).
It would be hard to write a better statement of only slightly beefed
up rational basis review whenever discipline is in play. As long as
the judgment of an administrator cannot be proven to be "frivolous or
arbitrary" or based on "mere speculation, exaggerated fears, or
post-hoc rationalizations" it will survive statutorily mandated strict
scrutiny review. Perhaps the unstated premise that incarcerated
felons are subhuman will cabin the dilution of strict scrutiny, but
perhaps not; in the national security state, it's only a short leap
from prison safety to public safety.
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Joel Sogol <jlsa...@wwisp.com>:
<http://j.st/HMg?utm_source=Justia+Law&utm_campaign=282bac825a-summary_newsl
etters_jurisdictions&utm_medium=email&utm_term=0_92aabbfa32-282bac825a-40593
7966> Knight, et al. v. Thompson, et al.
Docket: 12-11926
Opinion Date: July 26, 2013
Judge: Schlesinger
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government &
Administrative Law
Plaintiffs, male inmates, filed suit under the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq.,
challenging an ADOC policy that forbids them from wearing their hair unshorn
in accordance with the dictates of their Native American religion. The
United States intervened on plaintiffs' behalf. The court affirmed the
district court's judgment in favor of the ADOC because the ADOC carried its
burden of demonstrating that its hair-length policy was the least restrict
means of furthering its compelling governmental interests of prevention of
contraband, facilitation of inmate identification, maintenance of good
hygiene and health, and facilitation of prison discipline through
uniformity.
http://j.st/HMg
<http://j.st/HMg?utm_source=Justia+Law&utm_campaign=282bac825a-summary_newsl
etters_jurisdictions&utm_medium=email&utm_term=0_92aabbfa32-282bac825a-40593
7966>
<http://j.st/HMg?utm_source=Justia+Law&utm_campaign=282bac825a-summary_newsl
etters_jurisdictions&utm_medium=email&utm_term=0_92aabbfa32-282bac825a-40593
7966> View Case
View Case On: Justia
<http://j.st/HMg?utm_source=Justia+Law&utm_campaign=282bac825a-summary_newsl
etters_jurisdictions&utm_medium=email&utm_term=0_92aabbfa32-282bac825a-40593
7966> Google Scholar
<http://scholar.google.com/scholar?hl=en&q=Knight%2C+et+al.+v.+Thompson%2C+e
t+al.+12-11926&utm_source=Justia+Law&utm_campaign=282bac825a-summary_newslet
ters_jurisdictions&utm_medium=email&utm_term=0_92aabbfa32-282bac825a-4059379
66>
Joel L. Sogol
Attorney at Law
811 21st Ave.
Tuscaloosa, Alabama 35401
ph (205) 345-0966
fx (205) 345-0971
email: <mailto:jlsatty%40wwisp.com> jlsa...@wwisp.com
website: www.joelsogol.com
Ben Franklin observed that truth wins a fair fight - which is why we have
evidence rules in U.S. courts.
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