Roman Lee Jones v. Robert E. Carter

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2836

ROMAN LEE JONES,

Plaintiff-Appellee,

v.

ROBERT E. CARTER, JR., Commissioner, Indiana Department of

Correction,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 16 C 2887—William T. Lawrence, Judge.

____________________

ARGUED SEPTEMBER 7, 2018 — DECIDED FEBRUARY 15, 2019

____________________

Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir-

cuit Judges.

WOOD, Chief Judge. While a serving of meat from a prison

kitchen would not prompt most Americans to run to a federal

courthouse, it raises a critical problem for Indiana inmate Ro-

man Lee Jones. Jones adheres to a sect of Islam that requires

its members to follow a diet that regularly includes halal

meat. It would not cost the state of Indiana a single penny to

2 No. 17-2836

provide Jones with the diet he has requested. The only ques-

tion before us in this appeal is whether Indiana’s refusal to

provide Jones with meat substantially burdens his exercise of

religion under the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. We hold that it

does.

Jones observes Islamic dietary restrictions, which forbid

the consumption of certain foods and require that others be

prepared in accordance with Islamic law—that is, his food

must be halal. Since there is overlap in halal and Jewish ko-

sher requirements, some Muslims—including Jones—find

kosher food to be an acceptable alternative to a purely halal

diet. (There are differences, to be sure: followers of a kosher

diet may not consume meat and dairy products together,

while followers of halal may do so; alcohol is permissible for

kosher, but not for halal; and the lists of permissible animals

and seafoods differ slightly. See Halal vs Kosher, DIFFEN.COM,

https://www.diffen.com/difference/Halal_vs_Kosher (last

visited February 14, 2019). Jones does not argue that these dif-

ferences matter for his prison diet.)

The Indiana Department of Correction (“DOC”) formerly

provided pre-packaged kosher meal trays, which included

kosher meat, to all inmates who requested them. As demand

for the kosher trays went up, however, so did the cost, which

rose to between $40,000 and $60,000 a month on top of the per

capita amount the DOC pays its contractor for standard

meals. Unhappy with this trend, the DOC stopped offering

the kosher trays and put all the affected inmates on a vegan

diet (that is, one with no products made or derived from ani-

mals).

No. 17-2836 3

That move satisfied no one: a class of inmates seeking ko-

sher food sued the DOC and prevailed under RLUIPA in Wil-

lis v. Commissioner, Indiana Department of Correction. 753 F.

Supp. 2d 768, 772 (S.D. Ind. 2010). Rather than go back to

providing everyone with kosher trays, the DOC worked out

a new arrangement with its contractor so that kosher meals

are now included in the per capita amount it pays the contrac-

tor. The DOC built kosher kitchens at a few of its facilities and

moved as many kosher inmates into those facilities as possi-

ble. Inmates who could not be moved would continue to re-

ceive the kosher trays, but inmates (including Jones) in a fa-

cility with a kosher kitchen were given only the option of eat-

ing the food prepared there. That food, however, is vegetarian

(i.e. plant-derived, plus animal products not requiring slaugh-

ter, such as eggs, milk, cheese, and honey).

While many Jewish and Muslim inmates would find a nu-

tritionally adequate vegetarian diet that otherwise satisfies

kosher standards to be fully compatible with their beliefs,

Jones does not. Jones and the other members of his sect within

Islam believe that the holy Qur’an plainly commands him to

“eat what is on earth, Lawful and good”—including meat.

Some Muslim scholars support Jones’s interpretation, and the

Imam employed by the DOC agreed that Jones’s view is “a

valid opinion” shared by some other Muslims, though not the

Imam himself. Jones does not take the position that he needs

to eat meat with every meal, but he believes it must be a reg-

ular part of his diet. After the DOC refused his request for ko-

sher trays that include meat, he filed this suit.

Under RLUIPA, the DOC cannot “impose a substantial

burden on the religious exercise of a person residing in or con-

fined to an institution … unless the [DOC] demonstrates that

4 No. 17-2836

[it] … (1) is in furtherance of a compelling governmental in-

terest; and (2) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000cc-1. Fol-

lowing a brief trial, the district court held in favor of Jones and

ordered the DOC to give Jones at least eight meals a week that

“contain kosher or halal meat.” The judge left it up to DOC to

decide on the most effective way to do this, but he specified

that one permissible response would be to send Jones the ko-

sher trays the DOC was already providing to inmates at facil-

ities without kosher kitchens. The record indicates that this

would not impose any incremental cost on the DOC. The

court found that by requiring Jones to engage in conduct—

refraining from all meat—that violates his sincerely held reli-

gious belief, the DOC had substantially burdened his reli-

gious exercise and on this record the DOC lacked a compel-

ling government interest to justify that burden.

On appeal, the DOC does not contest the sincerity of

Jones’s belief or the district court’s finding that the DOC

lacked a sufficient justification for its treatment of Jones. The

sole issue the DOC raises is whether the district court erred in

holding that Jones was substantially burdened by the vege-

tarian kosher diet when, as the DOC argues, he could have

purchased the halal meat he needs to supplement his diet at

the prison commissary. The DOC characterizes Jones’s lack of

meat as the result of “his own spending choices,” not the re-

sult of any DOC action. It urges us to find that nothing less

than the coercive pressure of the choice between violating his

religion and facing starvation qualifies as a substantial bur-

den under RLUIPA.

For a time, there was some confusion among the circuits

about what constitutes a substantial burden under RLUIPA.

No. 17-2836 5

We interpreted the language as requiring that the govern-

ment’s action rendered the religious exercise “effectively im-

practicable.” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009).

Other circuits developed different tests. See, e.g., Abdulhaseeb

v. Calbone, 600 F.3d 1301, 1313 (10th Cir. 2010) (government

must require, prohibit, or substantially pressure religiously

relevant conduct); Moussazadeh v. Texas Dep't of Criminal Jus-

tice, 703 F.3d 781, 793 (5th Cir. 2012) (government must influ-

ence an adherent to act or force him to choose between a gen-

erally available non-trivial benefit and religious beliefs); Patel

v. U.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (gov-

ernment must significantly inhibit, meaningfully curtail, or

deny reasonable opportunities for religious exercise). This

confusion was largely dispelled, however, in two recent deci-

sions from the Supreme Court: Holt v. Hobbs, 135 S. Ct. 853

(2015), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751

(2014). We recognized in Schlemm v. Wall that Holt and Hobby

Lobby “articulate[d] a standard much easier to satisfy” than

our former search for something rendering the religious exer-

cise “effectively impracticable.” 784 F.3d 362, 364 (7th Cir.

2015).

In Hobby Lobby, a case involving RLUIPA’s sister statute,

the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. § 2000bb-1, three closely held corporations faced the

choice between providing contraceptive coverage for their

employees in violation of their religious beliefs or paying a

substantial fine that would enable them to omit the coverage

to which they objected. The Supreme Court found that this

choice was no choice at all: it imposed a substantial burden on

the owners’ religious exercise, and the government had not

shown that it was the least restrictive means of serving the

government’s (assumed) compelling interest. 134 S. Ct. at

6 No. 17-2836

2759. The Court rejected the suggestion that the corporations

could “eliminate[] the substantial burden” and avoid the fine

by dropping employee health insurance entirely since that

would also cause economic harm. Id. at 2776–77. In so ruling,

the Court emphasized that Congress explicitly stated that

RFRA should “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. at 2762 (quot-

ing § 2000cc-3(g)).

The next year, in Holt, the Court considered the case of a

Muslim inmate who wanted to grow a 1/2-inch beard in ac-

cordance with his religious beliefs. Such a beard, however, of-

fended the grooming policy of the Arkansas Department of

Corrections, and so the Department refused to allow him to

grow it. When the case arrived at the Supreme Court, the

Court read RLUIPA as an “expansive protection for religious

liberty” and held that the inmate “easily” demonstrated a

substantial burden because he faced “serious disciplinary ac-

tion” if he violated the grooming policy and grew the beard.

135 S. Ct. at 860, 862. The Court further rejected attempts to

call the burden of shaving “slight” if shaving was not abso-

lutely prohibited by the inmate’s beliefs, writing that

“RLUIPA … applies to an exercise of religion regardless of

whether it is ‘compelled.’” Id. at 862.

The burdens on the person asserting religious rights in

Holt and Hobby Lobby involved large fines and significant dis-

ciplinary consequences. But the Court did not indicate that

pressures of that severity represented the floor for finding a

substantial burden under RFRA or RLUIPA. To the contrary,

the Court clarified that RLUIPA’s substantial burden inquiry

robustly supports inmate religious practice—it specifically

No. 17-2836 7

disapproved of the practice of offsetting against the burden im-

posed by the rule any other religious accommodations offered

or the strength of the religious command. These principles

govern Jones’s case and indicate that the DOC’s food policy is

placing a substantial burden on him.

The DOC estimates it will cost Jones a few dollars a day

($14.00 a week) to pay for his own halal meat at the commis-

sary. While that amount may seem minor in comparison to

the multi-million-dollar fine Hobby Lobby faced, it is a large

amount for Jones. He makes, at most, $8.40 per week at his

prison job. Even though that amount is supplemented by spo-

radic funds sent from his friends and family, Jones cannot re-

liably afford to pay for the meat himself. The state is in effect

demanding that Jones, uniquely among all inmates, zero out

his account and forgo purchasing other items such as hygiene

products or over-the-counter medicine, if he wants to avoid a

diet that violates his religious beliefs.

When the state forces a prisoner to choose between ade-

quate nutrition and religious practice, it is imposing a sub-

stantial burden on his religious practice under the rules an-

nounced in Hobby Lobby and Holt. Thompson v. Holm, 809 F.3d

376, 380 (7th Cir. 2016) (collecting cases). After these recent

cases, there can be no doubt that when the state forces a pris-

oner to give away his last dime so that his daily meals will not

violate his religious practice, it is imposing a substantial bur-

den. We therefore have no need here to decide whether a truly

negligible or unquestionably affordable fine would similarly

be subject to attack under RLUIPA.

Jones’s case is not near any relevant line. Indeed, even be-

fore Hobby Lobby and Holt, other circuits found that asking

prisoners to pay daily for religiously compliant diets was a

8 No. 17-2836

substantial burden, especially where an inmate was indigent.

See Moussazadeh, 703 F.3d at 793–94 (holding it is a substantial

burden to require an inmate to pay for a kosher meal because

daily meals are a generally available benefit); Love v. Reed, 216

F.3d 682, 689 (8th Cir. 2000) (rejecting the argument that the

availability of food for purchase at the commissary alleviated

the substantial burden on an indigent inmate); Beerheide v.

Suthers, 286 F.3d 1179, 1188 (10th Cir. 2002) (calling a 25% co-

payment program for kosher meals that would require even

prisoners with financial support from their friends and family

“to sacrifice nearly all of that income to maintain their reli-

gious duties” a “Hobson’s choice rather than a true alterna-

tive”); Abdulhaseeb, 600 F.3d at 1317 (“[A]ny ability to pur-

chase is chimerical where a plaintiff is indigent….”).

The dissent suggests that the record before us is insuffi-

cient to hold that Jones is substantially burdened, and that we

ought to require a showing of indigency or other hardship to

satisfy the substantial burden test. To support the suggestion

that the court ought to further scrutinize Jones’s ability to pay,

the dissent relies on pre-Hobby Lobby cases from our sister cir-

cuits that required similar findings of indigency for inmates

requesting religious accommodations. See infra at 11 (citing

Abdulhaseeb, 600 F.3d at 1317–18, and Patel, 515 F.3d at 814).

When the Supreme Court was presented with a far sparser

record supporting the claimed substantial burden in Hobby

Lobby, however, the Court declined to inquire further into the

question of ability to pay, despite criticism in dissent both at

the Court and in the Tenth Circuit. Instead, it gave greater

weight to the religious freedom concerns and implicitly dis-

approved the ability-to-pay aspect of the earlier opinions

from our sister circuits. Hobby Lobby, 134 S. Ct. at 2775–76

No. 17-2836 9

(finding the large fines were clearly a substantial burden

without requiring Hobby Lobby to prove its inability to pay

or whether the fines would be “merely” significant or actually

crippling); id at 2798 (Ginsburg, J., dissenting) (criticizing the

majority opinion for “barely paus[ing] to inquire whether any

burden imposed … is substantial”); Hobby Lobby Stores, Inc. v.

Sebelius, 723 F.3d 1114, 1164 (10th Cir. 2013) (Briscoe, J., con-

curring in part and dissenting in part) (“At the hearing on

plaintiffs’ motion for preliminary injunction, plaintiffs pre-

sented no evidence of any kind. … As a result, we know very

little about any of the important facts of this case” including

evidence of substantial burden); id. at 1181, 1181 n.4 (10th Cir.

2013) (Matheson, J., concurring in part and dissenting in part)

(expressing concern that “plaintiffs have provided almost no

evidence” including “plaintiffs have failed, for example, to

provide the district court with complete information about

the financial strain they would bear”). The Supreme Court

thus consciously chose not to require a demonstration of

hardship—or detailed findings on finances—before deter-

mining that the fine at issue triggered protection for Hobby

Lobby’s owners. Hobby Lobby, 134 S. Ct. at 2759. Jones is enti-

tled to no less. He has testified to his meager sources of in-

come, and the state has confirmed that the cost to Jones of

subsidizing his own religiously compelled diet would sys-

tematically outpace his reliable income. That would be

enough under Hobby Lobby for the Supreme Court, and thus it

is enough for us.

DOC’s position also cannot be reconciled with the text of

RLUIPA. The statute applies to “any exercise of religion,” no

matter which faith or specific practice. §2000cc-5(7)(A); see

Holt, 135 S. Ct. at 860 (citing this language to reaffirm

10 No. 17-2836

RLUIPA’s strength and breadth). Some religious diets pro-

hibit certain foods; others require complex preparation.

Jones’s diet requires him to consume one additional item of

food beyond what he is currently being offered. We find no

principled reason for endorsing DOC’s practice of withhold-

ing a readily available food for Jones—one that it is serving to

many other inmates. See Willis, 753 F. Supp. 2d at 772 (requir-

ing the Indiana DOC to provide inmates with kosher diets,

though it was substantially more burdensome on the state to

do so). See also Moussazadeh, 703 F.3d at 793–94 (emphasizing

that the denial of generally available benefits such as a daily

meal is always a substantial burden, since such action is akin

to denying the otherwise available benefits in Sherbert v. Ver-

ner, 374 U.S. 398, 404 (1963), and Thomas v. Review Board of the

Indiana Employment Security Division, 450 U.S. 707, 717–18

(1981)).

The DOC’s final pitch is that it should not have to “subsi-

dize” or “underwrite” Jones’s religious diet. Perhaps it fears

escalating costs. It did not, however, appeal the question of

the state’s interest. The district court held that on this record,

DOC did not demonstrate that any such risk exists, and we

have no reason to take issue with its conclusion. This is not a

class action, and Jones is asking only to receive the same ko-

sher trays that DOC is already providing to other inmates. If

enough other inmates come along and express the same reli-

giously based need, then the state always has the option of

adding halal or kosher meat to its new kitchens (if that ap-

pears to be the cost-effective way to handle the issue). But that

is not our case, and we see no reason to opine on a hypothet-

ical situation. That forbearance is especially appropriate given

the fact that Jones’s belief that eating meat is a requirement

No. 17-2836 11

for devout Muslims appears to be a minority view within Is-

lam.

We AFFIRM the judgment of the district court.

12 No. 17-2836

BRENNAN, Circuit Judge, dissenting. To prevail on an

RLUIPA claim of this sort, an inmate must show his religious

exercise has been substantially burdened; a lesser burden is

insufficient. At issue in this case is whether the financial

responsibility placed on inmate Jones to include halal meat in

his diet rises to the level of a substantial burden. We do not

have enough evidence to make that determination because

the district court never reached the issue. Jones’s claim should

be remanded for the district court to conduct fact-finding as

to whether he is indigent or suffers other financial hardship,

and whether his religious exercise was substantially

burdened.

Our court addressed RLUIPA’s “substantial burden”

requirement in Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015),

in the wake of Holt v. Hobbs, 135 S.Ct. 853 (2015), and Burwell

v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). There we

noted that while Holt held that the “substantial burden”

requirement was met by a “serious violat[ion] [of] religious

beliefs,” what “serious” requires remained undefined.

Schlemm, 784 F.3d at 364–65 (quoting Holt, 135 S.Ct. at 862, in

turn quoting Hobby Lobby, 134 S.Ct. at 2775).

The majority opinion does not grapple with this unre-

solved question. Its interpretation of “substantial” effectively

means that any burden on an inmate’s religious diet, no

matter how slight, violates RLUIPA. While acknowledging

that Holt and Hobby Lobby “involved large fines and signifi-

cant disciplinary consequences,” the majority opinion states

that the “pressures of that severity [do not] represent[] the

floor for finding a substantial burden under RFRA or

RLUIPA.” Million dollar fines and serious prison disciplinary

actions, as in Hobby Lobby and Holt, might not be the floor for

No. 17-2836 13

a substantial burden. But 42 U.S.C. § 2000cc-1 requires some

sort of floor. Congress so provided when it incorporated a rel-

ative and proportionate term (“substantial”) into the statute.

The text of RLUIPA requires courts to assess the severity of

the burden placed on an individual inmate, and whether that

burden rises to the level of “substantial.” Anything less risks

rendering the statutory term “substantial” superfluous. See

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 174–79

(2012) (discussing the surplusage canon). This evaluation

requires a full factual record, which we do not have here.

Other courts have considered two factors to determine

whether a burden on an inmate’s diet is “substantial”: the

religious meal options available, and the ability of the

religious inmate to obtain them. See Abdulhaseeb v. Calbone, 600

F.3d 1301, 1317–18 (10th Cir. 2010) (“First, any ability to

purchase is chimerical where a plaintiff is indigent, as is Mr.

Abdulhaseeb. Second, … [because] no Halal vendors have

been approved by DOC … Mr. Abdulhaseeb could not have

purchased halal foods even if he had funds.”); see also Patel v.

U.S. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) (“[The

inmate] only offers his single, vague and unsupported state-

ment about the potential cost, and the record offers no

evidence regarding Patel’s financial status. … Patel has not

offered sufficient evidence to create a genuine issue of mate-

rial fact … [to show he] has been substantially burdened.”).1

Compare with Moussazadeh v. Texas Dept. of Criminal Justice,

1 Whether Patel will survive post-Holt and Hobby Lobby is currently on

appeal in the Eighth Circuit. For that case’s district court opinion, see Mu-

hammad v. Wheeler, No. 5:15-cv-130-KGB/PSH, 2018 WL 1558279 (E.D. Ark.

Mar. 30, 2018).

14 No. 17-2836

703 F.3d 781, 793–94 (5th Cir. 2012) (holding that denying a

Jewish inmate free kosher meal trays available to all other

Jewish inmates denies the inmate an “‘essential’ benefit given

to every prisoner”).2 This court should adopt a similar

standard.

The first inquiry can be assessed by examining the halal

(or kosher, or other religious) options available in a prison’s

cafeteria or commissary. The parties do not dispute Jones has

been housed in a prison facility with a vegetarian kosher

kitchen and a commissary stocked with halal meat. Indeed,

Jones purchased halal meat to supplement his vegetarian

kosher meals. This option is available to all inmates in facili-

ties with kosher kitchens. Rather than requesting a generally

available benefit, Jones asks to be given for free what other

inmates in his prison facility must purchase. Cf. Moussazadeh,

703 F.3d at 793 (“[D]enial of religiously sufficient food where

it is a generally available benefit would constitute a substan-

tial burden on the exercise of religion.”). The second inquiry

can be resolved by a showing of indigency or other hardship

for the particular inmate. For Jones, that remains a genuine

question of fact.

2The majority opinion cites Moussazadeh for the proposition that “the

denial of generally available benefits such as a daily meal is always a

substantial burden.” But the Fifth Circuit in Moussazadeh was careful to

distinguish the facts before it, in which a Jewish inmate was denied free

kosher cafeteria trays, from those in Patel, where kosher and halal food

was freely provided in the cafeteria “and satisfied all other Muslims in the

prison, [but did not meet the] particularly nuanced version of halal food”

preferred by the specific inmate. Moussazadeh, 703 F.3d at 794. Here, the

parties do not dispute that in the DOC cafeteria Jones has access to free,

nutritionally adequate, vegetarian kosher trays.

No. 17-2836 15

The majority opinion states that unless the district court is

affirmed, Jones will be forced to “give away his last dime” to

obtain halal meat. Were that true, the DOC’s policy may very

well impose a substantial burden on Jones. But because the

district court never made any findings of fact on this topic,

Jones’s financial situation—and the severity of the burden

commissary purchases place on him—is an unresolved fact

dispute. The DOC submitted evidence tending to impeach

Jones’s narrative of financial difficulty: for example, Jones reg-

ularly purchased halal meat at the prison commissary as re-

cently as nine months before his deposition in this case. The

majority opinion notes Jones makes “at most, $8.40 per week

at his prison job.” Yet Jones continues to make regular com-

missary purchases of up to sixty dollars a month. This implies

Jones has access to funds beyond his prison salary, possibly

contributed by friends and family members. The majority

opinion examines the conflicting testimony and resolves it in

favor of Jones. But the district court never addressed this

genuine issue of material fact in its opinion, and as a review-

ing court, we are not in a position to do so. Because this

remains unresolved, the severity of the burden placed on

Jones’s religious exercise by the DOC cannot be assessed as

“substantial,” or as insubstantial. We just do not know.

In addition to the claim’s other elements, to recover in this

lawsuit Jones should be required to show he is indigent and

unable to acquire halal meat on his own. The district court did

not hear the necessary evidence on the expenses of prison life

and made no finding as to Jones’s financial circumstances.

Because halal meat options are readily available within the

16 No. 17-2836

facility where Jones is housed, remand is warranted for fur-

ther fact-finding on these questions.

For these reasons, I respectfully dissent.