Shareef Childs v. Cheryl Webster

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 24-1817

SHAREEF CHILDS,

Plaintiff-Appellant,

v.

CHERYL WEBSTER, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 22-cv-256 — James D. Peterson, Chief Judge.

____________________

ARGUED SEPTEMBER 25, 2025 — DECIDED MARCH 4, 2026

____________________

Before BRENNAN, Chief Judge, and EASTERBROOK and SYKES,

Circuit Judges.

BRENNAN, Chief Judge. Shareef Childs is an inmate at Stan-

ley Correctional Institution in central Wisconsin. As a practic-

ing Muslim, he prays five times each day and believes he must

start his prayers at precise times. One of Stanley’s chaplains

printed and distributed prayer schedules that Childs and

other Muslim inmates used to guide the timing of their pray-

ers. They soon discovered the prayer schedules were off by

2 No. 24-1817

several minutes. When Childs requested an accurate sched-

ule, the chaplains declined to provide him one.

Childs sued, alleging violations of the Religious Land Use

and Institutionalized Persons Act of 2000 (“RLUIPA”) and his

constitutional right to freely exercise his religion. The district

court granted the defendants’ motion for summary judgment.

We decide whether the defendants, by declining to use gov-

ernment funds to provide Childs an accurate prayer schedule,

placed a “substantial burden” on his religious exercise in vio-

lation of RLUIPA. We also decide whether the defendants vi-

olated the Free Exercise Clause of the First Amendment.

I. Background

We recount the facts in the light most favorable to the non-

moving party Childs. See Kluge v. Brownsburg Cmty. Sch. Corp.,

150 F.4th 792, 804 (7th Cir. 2025).

Salah, one of the basic pillars of Islam, consists of five daily

prayers. Muslims aim to offer these prayers at precise times

based on the sun’s position in the sky. As the Earth orbits the

sun and rotates, proper prayer times vary by day and loca-

tion. Therefore, many Muslims use prayer schedules keyed to

their location to know when to pray. Viewing prayer times as

windows that open and close throughout the day, Childs

strives to pray promptly when the window opens, believing

that failure to do so is a “major sin.” To do this, Childs needs

an accurate prayer schedule. The parties do not dispute the

sincerity of Childs’s belief.

Chaplain Craig Lindgren plans and directs religious pro-

grams at Stanley prison. In January 2023, Lindgren accessed

www.islamicfinder.org to look up the Salah prayer schedules

for 2023. Using prison resources, Lindgren printed copies and

No. 24-1817 3

made them available to inmates in the chapel. Muslim in-

mates, including Childs, used these schedules to guide the

timing of their prayers in the first part of 2023. Corrections

Program Supervisor Cheryl Webster, who supervises the

prison’s chaplains and coordinates religious services and

activities, also relied on these prayer schedules to time the de-

livery of meal bags during the Muslim holy month of Rama-

dan.

Childs soon discovered that these prayer schedules were

inaccurate. In late March 2023, near the beginning of Rama-

dan, Childs noticed his sunset prayer time did not correspond

with the setting sun viewed through his window. Childs and

other Muslim inmates notified Lindgren. After checking his

work, Lindgren concluded he had entered the wrong location

into the website, and that the prayer schedules were thus off

by several minutes. After relaying this up the chain, Webster

instructed Lindgren and Chaplain Steve Mohr to print accu-

rate prayer schedules to guide the timing of Ramadan meal

bag deliveries.

But the chaplains did not print and distribute revised

prayer schedules to inmates. When Childs asked why,

Lindgren responded that providing the schedules was “a

courtesy” not required by the Wisconsin Department of Cor-

rections Division of Adult Institutions policy. Under this pol-

icy, inmates may possess approved religious property items.

They may also receive these items by donation or by purchas-

ing them from outside vendors. The policy does not, however,

permit prisons to purchase such items for inmates:

4 No. 24-1817

“Appropriated (i.e., taxpayer) funds shall not be used to pur-

chase inmate personal property items,” religious or other-

wise. 1

The prison at Stanley followed this policy. At all times,

staff permitted Muslim inmates, including Childs, to possess

prayer schedules, to receive them by donation through the

chapel, and to purchase them from outside vendors. In fact,

Childs eventually received an accurate prayer schedule by

donation from a visiting imam. For context, the chaplains do

not provide religious calendars or schedules for any other re-

ligious groups.

After exhausting the internal prison grievance process,

Childs sued Webster, Lindgren, and Mohr. Relevant to this

appeal, Childs alleged that the defendants violated the Free

Exercise Clause of the First Amendment by providing inaccu-

rate prayer schedules during the first part of 2023 and brought

this claim under 42 U.S.C. § 1983. Childs also advanced a

RLUIPA claim and a second Free Exercise claim. He asserted

the defendants violated his statutory and constitutional rights

by not printing and distributing accurate prayer schedules to

guide their prayer during the rest of 2023 and in 2024.

In support of his claims, Childs maintains that he lacked

an accurate prayer schedule for the remainder of 2023. But he

did not describe his efforts to obtain one. And although he

received a donated prayer schedule in 2024, he complains that

he did not receive one provided by the prison.

1 Division of Adult Institutions, Policy and Procedures, 309 Resources

for Inmates, Religious Property 309.61.02 (I)(A), (B)(6), (F)(1)–(3) (effective

11/20/2022).

No. 24-1817 5

Defendants moved for summary judgment, which the dis-

trict court granted on all claims. Concerning the inaccurate

prayer schedule in the first part of 2023, the court ruled that a

§ 1983 constitutional tort claim requires more than negligence:

“[N]o evidence in the record suggest[s] … anything other

than a mistake by Lindgren, which is not enough to violate

the Constitution.”

The district court assumed that the failure to provide

prayer schedules for the rest of 2023 and in 2024 had substan-

tially burdened Childs’s religious exercise. Still, the court

found no violation. It explained that neither RLUIPA nor the

Free Exercise Clause “requires prison officials to purchase re-

ligious materials for prisoners using government funds.” See

Cutter v. Wilkinson, 544 U.S. 709, 720 n.8 (2005). The court also

emphasized that, although the prison declined to provide

prayer schedules, inmates were still free to possess them and

to obtain them by other means.

Even if the defendants violated the Free Exercise Clause,

though, the district court concluded that qualified immunity

shielded them. No clearly established law put them on notice

that ceasing to provide “religious materials to prisoners as a

courtesy” would violate the First Amendment.

Childs appeals. The district court’s grant of summary

judgment to the defendants is reviewed de novo, “construing

all conflicts in the evidence and drawing reasonable infer-

ences for the nonmovant.” Kluge, 150 F.4th at 804. We address

his RLUIPA claim first, followed by his Free Exercise claims.

II. RLUIPA Claim

Our evaluation proceeds in three steps. As background we

review RLUIPA’s enactment and structure. Next, assuming

6 No. 24-1817

Childs’s claim should be treated like other RLUIPA claims,

we consider whether he satisfied the “substantial burden” re-

quirement under our caselaw. Then we question that assump-

tion and answer whether RLUIPA requires states to subsidize

religious exercise by purchasing religious items.

A. RLUIPA’s Background and Structure

The Free Exercise Clause of the First Amendment protects

an individual’s religious exercise. Cases like Wisconsin v.

Yoder, 406 U.S. 205, 220 (1972), and Sherbert v. Verner, 374 U.S.

398, 403 (1963), required even facially neutral laws that inci-

dentally burden religious exercise to survive strict scrutiny.

In Employment Division, Department of Human Resources v.

Smith, 494 U.S. 872 (1990), the Supreme Court held that the

Free Exercise Clause does not exempt religious exercise from

neutral rules of general applicability. Id. at 879.

Desiring a return to greater protection, Congress enacted

the Religious Freedom Restoration Act of 1993 (“RFRA”). 42

U.S.C. §§ 2000bb et seq. RFRA provides that a government

may not substantially burden a person’s religious exercise un-

less it can survive strict scrutiny. Id. § 2000bb-1(b). RFRA’s

protections also expressly apply to laws of “general applica-

bility,” id. § 2000bb-1(a), reflecting Congress’s judgment that

incidental burdens interfere with religious exercise just as

much as intentional ones, id. § 2000bb(a)(2).

But the Supreme Court firmly held the line. In City of

Boerne v. Flores, the Court curtailed RFRA’s scope. 521 U.S.

507, 529–32, 536 (1997). As enacted, RFRA extended to all

laws, regulations, and actions taken by state governments and

the federal government. The Court enjoined the statute’s

No. 24-1817 7

application to the states, explaining that it exceeded Con-

gress’s Fourteenth Amendment enforcement power. Id. at

536.

This time Congress responded by enacting RLUIPA. In-

voking authority under the Spending and Commerce

Clauses, 42 U.S.C. § 2000cc-1(b), RLUIPA protects religious

exercise in land use and among institutionalized persons from

undue government interference. Id. §§ 2000cc, 2000cc-1. Rele-

vant here, § 2000cc-1 provides that no federally funded prison

“shall impose a substantial burden on the religious exercise of

a person residing in or confined to an institution … ” unless

the government shows that the burden furthers “a compelling

governmental interest” by “the least restrictive means.” Id.

§ 2000cc-1(a). 2 This marks Congress’s second attempt to cod-

ify the strict-scrutiny standard of the pre-Smith cases. West v.

Radtke, 48 F.4th 836, 844 (7th Cir. 2022). A prisoner alleging a

RLUIPA violation may seek injunctive or declaratory relief.

42 U.S.C. § 2000cc-2(a); West, 48 F.4th at 844.

In RLUIPA Congress aimed at protecting the religious ex-

ercise of institutionalized persons. The Act generously defines

“religious exercise” as “any exercise of religion, whether or

not compelled by, or central to, a system of religious belief.”

42 U.S.C. § 2000cc-5(7)(A). To satisfy RLUIPA, a prison may

be required to make individual exemptions to general prison

policies, id. § 2000cc-3(e), and to “incur expenses in its own

operations to avoid imposing a substantial burden on reli-

gious exercise,” id. § 2000cc-3(c). Congress further directs that

2 Every state, including Wisconsin, accepts federal funding for its pris-

ons.

8 No. 24-1817

RLUIPA “shall be construed in favor of a broad protection of

religious exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.” Id. § 2000cc-3(g).

In these statutes, Congress exceeded even the pre-Smith pro-

tections prisoners expected while exercising their religion in

confinement. See Turner v. Safley, 482 U.S. 78 (1987); O’Lone v.

Est. of Shabazz, 482 U.S. 342 (1987); see infra III.

Congress also expressly acknowledged limits on

RLUIPA’s scope. That Act does not define “substantial bur-

den,” but the qualifier “substantial” signals that not all bur-

dens on religious exercise need to be justified under strict

scrutiny. 42 U.S.C. § 2000cc-1(a); see infra II.B. And instead of

requiring a mere prima facie showing as in other places,

Congress clarified that the prisoner “bears the burden of per-

suasion” in proving that the government “substantially bur-

den[ed]” his religious exercise. 42 U.S.C. § 2000cc-2(b).

Congress further instructed that “[n]othing in this chapter

shall create a right of any person to receive government fund-

ing for a religious activity,” id. § 2000cc-3(c) (citation modi-

fied), and “[n]othing in this chapter shall be construed to

affect … the Establishment Clause,” id. § 2000cc-4.

B. “Substantial Burden”

Childs bears the initial burden of persuasion to prove

“that the challenged prison practice substantially burdened

his religious exercise and that his request for a religious ex-

emption is sincere.” West, 48 F.4th at 844 (citation omitted).

No one disputes that Childs sought to engage in “religious

exercise” by performing Salah, or that he sincerely believes he

must start his prayers on time. The dispute centers on

whether Childs has shown that the prison officials substan-

tially burdened his religious exercise by not providing an

No. 24-1817 9

accurate prayer schedule, and if so, whether such a burden

can survive strict scrutiny.

Absent a definition from Congress, courts initially devel-

oped their own tests for what constitutes a “substantial bur-

den.” The Supreme Court eventually clarified the require-

ment in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)

and Holt v. Hobbs, 574 U.S. 352 (2015). In Hobby Lobby, the U.S.

Department of Health and Human Services demanded that

three closely held corporations provide health-insurance cov-

erage for methods of contraception that violated the sincerely

held religious beliefs of the companies’ owners. 573 U.S. at

689. The regulation put the owners to a decision—to provide

such insurance would violate their beliefs, but to opt out

would force them to pay large financial penalties under the

Affordable Care Act. Id. at 720. Acknowledging the coercive

nature of this choice, the Court held that these regulations vi-

olated RFRA by placing a “substantial burden” on religious

exercise that could not be justified under strict scrutiny. Id. at

690–91, 726, 729–30.

The Court reached a similar outcome in a companion case,

Holt v. Hobbs. There, the Arkansas Department of Correction’s

grooming policy—prohibiting inmates from growing beards

absent a particular skin condition—conflicted with a Muslim

inmate’s wish to grow a beard in accordance with his sin-

cerely held religious belief. 574 U.S. at 355–56. To shave

would “seriously violate” his beliefs, but to contravene the

prison’s grooming policy would expose him to significant dis-

ciplinary action. Id. at 361. Based on this coercive dilemma,

like the one in Hobby Lobby, the Supreme Court held that the

prison’s grooming policy violated RLUIPA by placing a

10 No. 24-1817

“substantial burden” on the inmate’s religious exercise that

could not be justified. Id. at 361, 364, 367.

In light of Hobby Lobby and Holt, this court reevaluated the

“substantial burden” test in Schlemm v. Wall, 784 F.3d 362 (7th

Cir. 2015). There, an inmate and member of the Navajo Tribe

wished to celebrate a Ghost Feast, part of a harvest celebration

that “honors the dead through dancing, praying, and eating

traditional foods.” Id. at 363. The prison not only rejected the

inmate’s request for game meat, a traditional food, but also

prohibited him from buying it for himself from an outside

vendor. Id. Under our pre-Holt “effectively impracticable”

test, the outright ban on one of the three Ghost Feast practices

would not substantially burden religious exercise—the in-

mate could still dance and pray. Id. at 364; see Eagle Cove Camp

& Conf. Ctr., Inc. v. Woodboro, 734 F.3d 673, 680 (7th Cir. 2013).

But Holt and Hobby Lobby “articulate[d] a standard much eas-

ier to satisfy” than that, so this court rejected the test from Ea-

gle Cove. Schlemm, 784 F.3d at 364. Focusing exclusively on the

religious practice in question—eating traditional foods—this

court held that the prison’s outright ban on game meat vio-

lated RLUIPA by substantially burdening the inmate’s reli-

gious exercise without sufficient justification. Id. at 364–65.

So far, our “substantial burden” caselaw has spoken to at

least two kinds of cases. The first focuses on prison policies

that entirely prohibit a practice based on a sincerely held reli-

gious belief. As in Schlemm, such an outright prohibition can

place a substantial burden on religious exercise, regardless of

what other practices remain available. Id. at 365. The second

involves coercive dilemmas, as in Hobby Lobby and Holt. The

“pertinent lesson” from those cases is that prison policies

“forcing” the inmate “to choose between violating his

No. 24-1817 11

religion,” on the one hand, “and incurring [some] negative

consequence,” on the other, substantially burden religious ex-

ercise. West, 48 F.4th at 845 (citation omitted). In evaluating

whether a burden is substantial, courts “focus primarily on

the intensity of the coercion applied by the government.” Id.

(citation modified).

Childs’s case is not the first kind. Unlike the defendants in

Schlemm, who banned the inmate from purchasing his own

game meat from an outside vendor, the defendants here have

not prevented Childs from obtaining or possessing a prayer

schedule. As the district court noted, he received one by do-

nation and always had the option to purchase one from an

outside vendor.

Instead, Childs points to the second kind, those concern-

ing a coercive dilemma. Quoting from West v. Radtke, Childs

states that a substantial burden exists when “a prison attaches

some meaningful negative consequence to an inmate’s reli-

gious exercise, forcing him to choose between violating his re-

ligion and incurring some negative consequence.” 48 F.4th at

845. As for whether a burden is sufficiently substantial, Childs

again quotes from West v. Radtke which directs courts to “fo-

cus[] primarily on the intensity of the coercion applied by the

government.” Id. To evaluate that intensity, we consider the

severity of the negative consequences in question. Id. In cases

like Holt, the negative consequence is disciplinary action. Holt,

574 U.S. at 361; West, 48 F.4th at 845. But Childs does not face

disciplinary action, so he must identify some other negative

consequence.

In certain cases, the negative consequence is the financial

cost an inmate bears to support his own religious practice. See

Jones v. Carter, 915 F.3d 1147, 1150–51 (7th Cir. 2019). In Hobby

12 No. 24-1817

Lobby, the Supreme Court concluded that paying hundreds of

millions of dollars in fines was a severe enough consequence

that it put plaintiffs to the coercive choice RLUIPA seeks to

prevent. 573 U.S. at 726.

Hobby Lobby’s logic was extended in Jones v. Carter. There,

a Muslim inmate bore the cost of buying his own Halal meat,

which he was required to eat on occasion based on his sincere

religious belief. Despite the religious accommodation of a Ko-

sher vegetarian diet, and though the inmate was free to pur-

chase Halal meat himself, this court still found a substantial

burden on religious exercise. 915 F.3d at 1150. The financial

cost of “subsidizing his own religiously compelled diet”

would “systematically outpace his reliable income.” Id. at

1151. A prison policy forcing the inmate to choose between

violating his sincerely held religious beliefs and giving “away

his last dime,” such as by paying the fines in Hobby Lobby, was

sufficiently severe to apply the coercion RLUIPA forbids. Id.

at 1150–51.

Childs’s case falls short of Jones. He has not shown that the

cost of paying for his own prayer schedule would force him

“to give away his last dime.” Id. at 1150. In fact, Childs has not

alleged or shown facts concerning his reliable income,

whether he is indigent, or how that relates to the cost of

prayer schedules. But he did characterize the cost of prayer

schedules as “de minimis,” and he proposes no other negative

consequences for our consideration. The question left open in

Jones—whether a “truly negligible or unquestionably afford-

able” cost to subsidize one’s own religious accommodation

substantially burdens religious exercise, id.—remains open.

Our caselaw acknowledges that evaluating whether a bur-

den is “substantial” invites line-drawing issues. Schlemm

No. 24-1817 13

recognized that the Supreme Court in Holt held that a policy

“seriously violat[ing] [] religious beliefs” satisfies the substan-

tial burden requirement. But the meaning of “seriously” is un-

certain. 784 F.3d at 364–65 (“What, indeed, does ‘seriously’

mean?—more than ‘modestly’ and less than ‘overwhelm-

ingly,’ but there’s a lot of space in that range.”). In Jones, this

court noted that Holt and Hobby Lobby “involved large fines

and significant disciplinary consequences.” 915 F.3d at 1150.

This court also stated that the “pressures of that severity [do

not] represent[] the floor for finding a substantial burden un-

der RFRA or RLUIPA.” Id.

Our caselaw has not set that “floor.” In Jones this court de-

cided what level of financial hardship is enough to offend

RLUIPA, but it did not decide what is required, noting that

“Jones’s case is not near any relevant line.” Jones, 915 F.3d at

1150. Similarly, in West v. Radtke, we observed that “the rele-

vant line—how much pressure is too much—may be difficult

to draw with precision,” but left it undrawn because “signifi-

cant disciplinary consequences” were surely enough. 48 F.4th

at 845.

Although Hobby Lobby, Holt, and our subsequent decisions

leave the question unanswered, 42 U.S.C. § 2000cc-1 requires

some sort of floor. Otherwise, “substantial burden” could

mean any burden. RLUIPA must be “construed in favor of a

broad protection of religious exercise, to the maximum extent

permitted by the terms of this chapter and the Constitution.”

§ 2000cc-3(g). But to give a word a meaning it cannot bear

goes beyond the “extent permitted by the term[].” Id. Con-

gress incorporated a relative and proportionate term (“sub-

stantial”) into the statute. So, RLUIPA’s text requires courts to

14 No. 24-1817

evaluate the severity of the burden placed on an inmate and

decide whether it rises to the level of “substantial.”

The de minimis cost of purchasing a prayer schedule does

not rise to the level of a “substantial” burden on religious ex-

ercise. Such a “truly negligible” and “unquestionably afford-

able” financial burden could not realistically coerce Childs to

violate his sincerely held religious belief. Jones, 915 F.3d at

1150. Absent a true coercive dilemma, to conclude that

Childs’s claim still satisfies the “substantial burden” require-

ment of RLUIPA would give the word a meaning it cannot

bear and render Congress’s choice of the word “substantial”

meaningless surplusage. ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW 174–79 (2012) (discussing the surplus-

age canon). And because Childs failed to carry his initial bur-

den of persuasion, the government is not required to justify

its policy under strict scrutiny.

Childs disagrees. His arguments, however, do not engage

with the caselaw, the meaning of “substantial,” or the line-

drawing questions they both raise. Instead, he focuses on the

necessity of a prayer schedule, that donations are not guaran-

teed, and that his incarceration limits his access to prayer

schedules, such as by going online or visiting a mosque. But

these facts are not disputed and beside the point. The defend-

ants do not contest the necessity of a prayer schedule to com-

ply with Salah under Childs’s sincerely held religious beliefs.

Childs remains free to purchase a prayer schedule through an

outside vendor. Even absent donations and with incarcera-

tion limiting other options, if the cost of obtaining a prayer

schedule does not substantially burden an inmate’s religious

exercise, RLUIPA is not violated.

No. 24-1817 15

C. Duty to Purchase Religious Items

Thus far we have assumed that Childs’s claim should be

treated like any other RLUIPA claim. There is reason to ques-

tion that assumption. Childs asks us to interpret RLUIPA to

place affirmative duties on states to purchase religious items

for inmates. This court has answered a similar question for

certain religious meal accommodations, but not yet for reli-

gious items. See Jones, 915 F.3d at 1150. The district court dis-

tinguished between these two and concluded that RLUIPA

categorically does not require states to pay for an inmate’s re-

ligious items. The state asks us to reach the same conclusion.

For this proposition, the district court and the state relied on

Cutter v. Wilkinson. 544 U.S. 709, 720 n.8 (2005).

In Cutter the plaintiff brought a facial constitutional chal-

lenge to RLUIPA, alleging the Act violated the Establishment

Clause. 544 U.S. at 713–14. Joining the majority of circuits, the

Court held that “[the institutionalized-persons provision] of

RLUIPA … qualifies as a permissible legislative accommoda-

tion of religion that is not barred by the Establishment

Clause.” Id. at 719–20. In this passage the Court announced:

“Directed at obstructions institutional arrangements place on

religious observances, RLUIPA does not require a State to pay

for an inmate’s devotional accessories.” Id. at 720 n.8. To sup-

port this construction of RLUIPA, the Court cited Charles v.

Verhagen, 348 F.3d 601, 605 (7th Cir. 2003). There, the court

overturned a prison’s prohibition on the possession of Islamic

prayer oil but left the inmate-plaintiff to purchase the oil for

himself. Id.

This language in footnote 8, which we refer to as Cutter’s

rule, is part of the Court’s holding and is thus binding. United

States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (aspects of

16 No. 24-1817

an opinion integral to its decision and reasoning are binding).

The placement and logic of footnote 8 make it integral to the

Court’s conclusion that RLUIPA does not violate the Estab-

lishment Clause. The Court provided two reasons for so hold-

ing, both grounded in the now-abrogated Lemon approach to

Establishment Clause challenges. See infra pp. 17–18 (explain-

ing why Cutter remains good law even though based on now-

rejected reasoning). 3 First, because RLUIPA merely removes

“exceptional government-created burdens on private reli-

gious exercise,” the Court concluded it looks more like an “ac-

commodation” than an “endorsement” of religion. Cutter, 544

U.S. at 720 (citation omitted). Second, courts “properly apply-

ing RLUIPA” must administer it in ways that do not “founder

on the shoals” of our “prior [Establishment Clause] deci-

sions.” Id.

The placement and logic of Cutter’s rule links it to the

Court’s reasoning and holding. Requiring states to purchase

religious items, unlike the limited holding in Charles v. Verha-

gen, would “founder on [the] shoals” of prior Establishment

Clause decisions as an “[im]proper[] appl[ication]” of

RLUIPA. Id. Cutter’s rule thus cannot be dismissed as dicta.

3 In Lemon v. Kurtzman, the Supreme Court announced a test to evalu-

ate Establishment Clause challenges: the statute must have a secular pur-

pose, its principal or primary affect must not advance or inhibit religion,

and it must not foster excessive government entanglement with religion.

403 U.S. 602, 612–13 (1971). In Kennedy v. Bremerton School District, the Su-

preme Court described Lemon “and its endorsement test offshoot” as

“long ago abandoned.” 597 U.S. 507, 534 (2022). In Groff v. DeJoy, a unani-

mous opinion described Lemon as “now abrogated.” 600 U.S. 447, 460

(2023).

No. 24-1817 17

Assuming Cutter’s rule survives any changes in intervening

law, it binds lower federal courts.

Our fellow circuits agree. The Tenth Circuit relied on Cut-

ter’s rule when it ruled that RLUIPA did not require a prison

to pay for soft-cover Islamic books for Muslim inmates in Ab-

dulhaseeb v. Calbone, 600 F.3d 1301, 1320–21 (10th Cir. 2010)

(citing 42 U.S.C. § 2000cc-3(c); Cutter, 544 U.S. at 720 n.8). In a

concurrence then-Judge Gorsuch explained that RLUIPA

does not require “the state to provide prisoners . . . with eve-

rything they need for religious purposes,” as evidenced by

footnote 8 of Cutter. Abdulhaseeb, 600 F.3d at 1326 (Gorsuch, J.,

concurring) (citation omitted). Other circuits cite Cutter’s rule

as binding law on state subsidy of religious items. Moussaza-

deh v. Texas Dep’t of Crim. Just., 703 F.3d 781, 793 (5th Cir.

2012); Ackerman v. Washington, 16 F.4th 170, 186 (6th Cir. 2021);

Pendleton v. Jividen, 96 F.4th 652, 657 (4th Cir. 2024) (“To be

sure, ‘RLUIPA does not require a State to pay for an inmate’s

devotional accessories.’”) (citation omitted).

Intervening changes in Establishment Clause jurispru-

dence do not call Cutter’s rule into question. In Kennedy v.

Bremerton School District, the Supreme Court formally rejected

Lemon and announced an originalist approach to Establish-

ment Clause challenges. 597 U.S. 507, 535–36 (2022). Going

forward, courts must evaluate Establishment Clause chal-

lenges by interpreting the First Amendment in light of the

“historical practices and understandings” at the Founding. Id.

at 535. If the Supreme Court were to decide Cutter today, its

reasoning could look very different. Nevertheless, Cutter’s

rule remains good law.

Unless and until expressly overruled, Cutter’s rule con-

trols. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

18 No. 24-1817

U.S. 477, 484 (1989) (“If a precedent of [the Supreme Court]

has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”). Even

when the Supreme Court has retained a specific holding

while rejecting its reasoning, it has done so expressly. See, e.g.,

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996)

(“Without questioning the holding in LaRue, we now disavow

its reasoning insofar as it relied on the Twenty-First Amend-

ment.”).

Before applying Cutter’s rule to Childs’s claim, we con-

sider how it fits into RLUIPA’s burden-shifting framework.

The state submits, and our fellow circuits suggest, that it fits

most naturally as a cap on, or caveat to, what constitutes a

“substantial burden” on religious exercise. See Ackerman, 16

F.4th at 186–87 (citing Patel v. U.S. Bureau of Prisons, 515 F.3d

807, 815 (8th Cir. 2008)). That view tracks the language in Cut-

ter and the statute itself. Footnote 8 contrasts Cutter’s rule with

“substantial burden” language: “Directed at obstructions insti-

tutional arrangements place on religious observances, RLUIPA

does not require a State to pay for an inmate’s devotional acces-

sories.” Cutter, 544 U.S. at 720 n.8. (emphases added). This is

buttressed by the location of footnote 8, which clarifies that

RLUIPA removes “government-created burdens.” Id. at 720.

To the Court, providing a prayer schedule is not required to

avoid placing a “substantial burden” on religious exercise.

The text of 42 U.S.C. § 2000cc-3(c) also supports this view.

There, Congress used contrasting clauses like in footnote 8.

“Nothing in this chapter shall create … a right … of any per-

son to receive government funding for a religious activity, but this

No. 24-1817 19

chapter may require a government to incur expenses in its

own operations to avoid imposing a substantial burden on reli-

gious exercise.” 42 U.S.C. § 2000cc-3(c) (emphases added). Re-

fusing to create a right to receive funding for a religious item,

in other words, cannot “impos[e] a substantial burden on re-

ligious exercise.” 42 U.S.C. § 2000cc-3(c). For these reasons,

Cutter’s rule limits what is a “substantial burden” on religious

exercise under RLUIPA.

We must now decide whether Cutter’s rule applies to

Childs’s claim. Prayer schedules are religious items or devo-

tional accessories requested for or necessary to Childs’s prac-

tice of Salah. RLUIPA therefore does not require states to

purchase religious accessories for inmates. In denying what

RLUIPA does not require, the defendants did not place a sub-

stantial burden on Childs’s religious exercise. So the burden

does not shift to the government to justify its policy.

Childs disagrees. He first tries to minimize Cutter’s rule.

After accepting that RLUIPA does not require prisons to pur-

chase devotional accessories, he claims that Cutter still

acknowledges that RLUIPA “requires prisons to provide reli-

gious accommodations that prisoners need to practice their

religion.” That confuses the general and the specific. As to the

general, RLUIPA requires governments to make accommoda-

tions to avoid placing unjustified substantial burdens on reli-

gious exercise. Sometimes the prison will incur expenses in

their operations to do so. Yet, as to the specific, Cutter’s rule

qualifies the general: whatever RLUIPA’s scope, it does not

require governments to pay for devotional accessories.

20 No. 24-1817

Childs next tries to distinguish prayer schedules from re-

ligious items or devotional accessories. 4 To Childs, a prayer

schedule is not a physical item used for devotion. Rather, it

merely contains information about time. He submits that the

prison could meet its obligations under RLUIPA without

providing the physical prayer schedule by posting times in

public spaces or announcing them over loudspeakers.

But the focus on information is immaterial. Religious texts

also provide information that could be conveyed through

other means. And in both instances, the information aids de-

votion. Moreover, that the information may be conveyed in

other ways does not mean the prison must provide that ac-

commodation. Childs’s proposed alternatives—such as an-

nouncing prayer times over the prison loudspeakers—could

also present the same Establishment Clause concerns that un-

derlie Cutter’s rule.

Childs also does not offer authority that supports his po-

sition, nor are we aware of any. The closest case is Ortiz v.

Downey, 561 F.3d 664 (7th Cir. 2009). There, this court con-

cluded that an inmate plausibly stated Free Exercise and

RLUIPA claims when the prison “denied him religious arti-

cles and the opportunity to attend Mass.” Id. at 670. But Ortiz

was decided at the screening stage for prisoners’ claims under

28 U.S.C. § 1915A, made no “determination about the ultimate

merits,” and did not “suggest[] an outcome.” Id. Childs’s

claim was resolved on the merits at summary judgment.

4 Oral argument, September 25, 2025, at 4:22-4:57 (https://ca7-

ecf.sso.dcn/sound/storagelinkdir/oralArguments/2025/sk.24-1817.24-

1817_09_25_2025.mp3).

No. 24-1817 21

* * *

For these reasons, Childs’s RLUIPA claim fails. Under our

caselaw, the de minimis cost of purchasing one’s own prayer

schedule does not place a “substantial burden” on religious

exercise. Moreover, RLUIPA, aimed at removing govern-

ment-created burdens on religious exercise, does not require

states to pay for religious items for inmates.

III. Free Exercise Claims

Childs has two Free Exercise claims. In the first he submits

that the prison’s policy against providing prayer schedules vi-

olates the Free Exercise Clause. But prison policy, which does

not permit the purchase of personal property for inmates, re-

ligious or secular, is a neutral and generally applicable rule

that does not violate the Free Exercise Clause. Smith, 494 U.S.

at 878. Childs counters that Smith does not apply to an in-

mate’s Free Exercise claim. For support, he argues that Smith

did not expressly overrule earlier Free Exercise cases specific

to the prison context. Turner v. Safley, 482 U.S. 78 (1987);

O’Lone v. Est. of Shabazz, 482 U.S. 342 (1987).

Assuming without deciding that Turner and O’Lone still

apply to neutral prison regulations, Childs’s Free Exercise

claim would fail under these pre-Smith cases too. To survive

summary judgment on his Free Exercise claim, Childs had to

make a prima facie case by “submit[ing] evidence from which

a jury could reasonably find that the defendants personally

and unjustifiably placed a substantial burden on his religious

practices.” Neely-Bey Tarik-El v. Conley, 912 F.3d 989, 1003 (7th

Cir. 2019) (citation omitted). A substantial burden “put[s] sub-

stantial pressure on an adherent to modify his behavior and

to violate his beliefs.” Thompson v. Holm, 809 F.3d 376, 379 (7th

22 No. 24-1817

Cir. 2016) (citation omitted). A substantial burden on religious

exercise is unjustified if it is not reasonably related to a legiti-

mate penological interest. Id. at 380 (citing Turner, 482 U.S. at

89–91).

Childs’s first claim does not clear the threshold. For the

same reasons his RLUIPA claim fails, buying his own prayer

schedule does not place a “substantial pressure” on Childs to

“violate his beliefs.” Thompson, 809 F.3d at 379. Because the

cost is de minimis and prison officials have not blocked Childs

from obtaining or possessing a prayer schedule, he has not

advanced a prima facie case that his right was burdened.

Therefore, the state need not justify its policy as reasonably

related to a legitimate penological interest. Id. at 380. We also

see Cutter’s rule applying to a Free Exercise claim. The rule

originated in pre-RLUIPA Free Exercise cases. See, e.g., Frank

v. Terrell, 858 F.2d 1090, 1090–91 (5th Cir. 1988) (affirming dis-

missal of a frivolous Free Exercise claim that sought state sub-

sidy of religious books, a prayer shawl, a tallit, sermon tapes,

a kippah, and other religious materials) (citing Cruz v. Beto,

405 U.S. 319, 323 (1972) (Burger, C.J., concurring) (“There can-

not possibly be any constitutional or legal requirement that

the government provide materials for every religion and sect

practiced in this diverse country. At most, [religious] materi-

als cannot be denied to prisoners if someone offers to supply

them.”)).

In Childs’s second Free Exercise claim he contends that

providing inaccurate prayer schedules in the first part of 2023

violated that First Amendment right. He has waived this

claim. The district court ruled that a negligence claim is not

actionable under § 1983. On appeal Childs has not alleged in-

tentional or reckless conduct. He therefore “failed to present

No. 24-1817 23

a developed argument on appeal that engages with the rea-

soning of the district court.” Bradley v. Village of University

Park, 59 F.4th 887, 897 (7th Cir. 2023).

IV. Conclusion

Childs’s RLUIPA claim fails because a de minimis cost to

buy his own prayer schedule does not substantially burden

his religious exercise. Further, the Act, aimed at removing

government-created burdens, does not require states to pur-

chase religious items for inmates. For similar reasons, Childs’s

Free Exercise claims fall short or were waived.

AFFIRMED.