Petition for Writ of Certiorari — Lester J. Smith, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

No. _______

In the Supreme Court of the United States

__________

LESTER J. SMITH,

Petitioner,

v.

TIMOTHY WARD, COMMISSIONER OF GEORGIA

DEPARTMENT OF CORRECTIONS IN HIS

OFFICIAL CAPACITY,

Respondent.

__________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

__________

PETITION FOR A WRIT OF CERTIORARI

__________

MARK L. RIENZI

ERIC C. RASSBACH

NICHOLAS R. REAVES

CHRIS PAGLIARELLA

JAMES J. KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

J. SCOTT BALLENGER

Counsel of Record

SARAH SHALF

APPELLATE LITIGATION CLINIC

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Charlottesville, VA 22903

(202) 701-4925

sballenger@law.virginia.edu

Counsel for Petitioner

i

QUESTIONS PRESENTED

In Knight v. Thompson, the Eleventh Circuit

concluded—on remand following Holt v. Hobbs, 574

U.S. 352 (2015)—that the Religious Land Use and

Institutionalized Persons Act allows denial of

religious accommodations widely available in other

jurisdictions whenever the prison makes a “calculated

decision not to absorb [] added risks.” 797 F.3d 934,

937 (11th Cir. 2015). Here, it extended that logic to

reject a beard-length accommodation available to

religious adherents in at least thirty-nine other

prison systems. It excused Georgia from any

obligation to address the demonstrated safety of such

accommodations in dozens of other states, instead

relying only on the speculation of Georgia prison

officials who admitted that they had not even

attempted to determine how other states

accommodate inmates with beards.

The questions presented are:

1. Whether the Eleventh Circuit erred in applying

RLUIPA when it held that Georgia need not grant a

religious accommodation offered in 39 other prison

systems.

2. Whether RLUIPA allows religious accommodations

to be denied based on any plausible risk to penological

interests, if the government merely asserts that it

chooses to take no risks.

3. Whether RLUIPA prohibits courts from granting

any religious accommodation short of the full

accommodation sought by a plaintiff prisoner.

ii

PARTIES TO THE PROCEEDINGS

Petitioner Lester Smith was plaintiff below in

proceedings before both the U.S. Court of Appeals for

the Eleventh Circuit and the U.S. District Court for

the Middle District of Georgia.

This case was originally filed against Brian

Owens, as Commissioner of the Georgia Department

of Corrections. Subsequently Gregory Dozier was

substituted when he assumed that office.

Respondent Timothy Ward is currently the

Commissioner of the Georgia Department of

Corrections,

and

became

the

appropriate

Defendant/Respondent in this action by operation of

Rule 25(d) of the Federal Rules of Civil Procedure.

The Eleventh Circuit’s docket continues to list Mr.

Dozier as an additional defendant, but that is a

misnomer not affecting substantial rights that

should be disregarded pursuant to Rule 25(d).

Because there are no damages claims remaining in

the case, Mr. Ward is sued only in his official

capacity.

iii

RELATED PROCEEDINGS

Smith v. Owens, No. 14-10981, 848 F.3d 975 (11th

Cir. 2017) (judgment entered Feb. 17, 2017).

Smith v. Owens, No. 5:12-cv-26-WLS, 2014 WL

773678 (M.D. Ga. 2014) (judgment entered February

26, 2014).

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES ..................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

STATUTORY PROVISIONS INVOLVED ................ 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 4

A. Factual and Procedural Background .............. 4

B. Proceedings in District Court ......................... 6

C. The Eleventh Circuit’s Decision ..................... 9

REASONS FOR GRANTING THE WRIT............... 11

I. The Eleventh Circuit’s decision deepens

an existing, acknowledged, and

intractable 7-1 circuit split over the

weight given to the practices of other

prison systems. .............................................. 13

II. The decision below deepens an existing

4-3 split over what level of deference

prison officials receive under RLUIPA’s

strict scrutiny standard. ............................... 19

A. The Second, Fifth, Sixth, and Ninth

Circuits apply strict scrutiny while

respecting prison officials’ relevant

expertise. .................................................. 21

v

B. The Third, Fourth, and Eleventh

Circuits inappropriately defer to

prison officials’ “mere say-so” when

applying RLUIPA’s strict scrutiny

standard. .................................................. 25

III. The Eleventh Circuit’s denial of a

partial accomodation conflicts with this

Court’s decision in Ramirez. ........................ 29

IV. This petition presents an excellent

vehicle for addressing recurring

questions of nationwide importance. ........... 31

CONCLUSION ......................................................... 33

ADDENDUM

APPENDIX

Opinion of the United States Court of

Appeals for the Eleventh Circuit,

filed September 22, 2021 .................................... 1a

Opinion of the United States District Court

for the Middle District of Georgia,

Macon Division, filed August 7, 2019 .............. 46a

Order on Rehearing of the United States

Court of Appeals for the Eleventh Circuit,

filed December 29, 2021 ................................... 73a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Ackerman v. Washington,

16 F.4th 170 (6th Cir. 2021) .................... 16, 23, 24

Ali v. Stephens,

822 F.3d 776 (5th Cir. 2016)................................22

Chance v. Texas Dep’t of Criminal Justice,

730 F.3d 404 (5th Cir. 2013)................................22

Couch v. Jabe,

679 F.3d 197 (4th Cir. 2012)................................14

Crawford v. Clarke,

578 F.3d 39 (1st Cir. 2009) ..................................16

Cutter v. Wilkinson,

544 U.S. 709 (2005) ..............................................19

Davis v. Davis,

826 F.3d 258 (5th Cir. 2016)..........................19, 23

Faver v. Clarke,

24 F.4th 954 (4th Cir. 2022) ..........................26, 27

Greenhill v. Clarke,

944 F.3d 243 (4th Cir. 2019)............................7, 19

Hamilton v. Schriro,

74 F.3d 1545 (8th Cir. 1996)................................31

Holt v. Hobbs,

574 U.S. 352 (2015) ...................................... passim

Johnson v. Baker,

23 F.4th 1209 (9th Cir. 2022) ........................24, 25

vii

Jova v. Smith,

582 F.3d 410 (2d Cir. 2009) .................................14

Knight v. Thompson,

574 U.S. 1133 (2015) ........................................5, 15

Knight v. Thompson,

723 F.3d 1275 (11th Cir. 2013)......................15, 16

Knight v. Thompson,

797 F.3d 934 (11th Cir. 2015)...................... passim

Mast v. Fillmore County,

141 S. Ct 2430 (2021) ...........................................17

Nance v. Miser,

700 Fed. Appx. 629 (9th Cir. 2017) .....................16

Ramirez v. Collier,

142 S. Ct. 1264 (2022).................................. passim

Smith v. Owens,

848 F.3d 975 (11th Cir. 2017)............................ 4-5

Spratt v. Rhode Island Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) .................. 5, 14, 16, 20

Tucker v. Collier,

906 F.3d 295 (5th Cir. 2018)................................16

United States v. Wilgus,

638 F.3d 1274 (10th Cir. 2011)...................... 30-31

Ware v. Louisiana Dep’t of Corr.,

866 F.3d 263 (5th Cir. 2017).................... 16, 22, 23

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005)...................... 5, 14, 24

Washington v. Klem,

497 F.3d 272 (3d Cir. 2007) ...................................5

viii

Watson v. Christo,

837 Fed. Appx. 877 (3d Cir. 2020) .................25, 26

Williams v. Annucci,

895 F.3d 180 (2d Cir. 2018) ..................... 16, 21, 22

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014)................................14

Statutes

42 U.S.C. 2000cc-1 ..............................................13, 30

42 U.S.C. 2000cc-2 ....................................................13

Other Authorities

Barrick Bollman, Deference and Prisoner Accommodations Post-Holt:

Moving RLUIPA Toward “Strict in

Theory, Strict in Fact”, 112 Nw. U.

L. Rev. 839 (2018) ................................................20

David M. Shapiro, To Seek A Newer

World: Prisoners’ Rights at the

Frontier, 114 Mich. L. Rev. First

Impressions 124 (2016) ..................................20, 21

1

OPINIONS BELOW

The Eleventh Circuit’s opinion is reported at 13

F.4th 1319 and reproduced at App.1a. The Eleventh

Circuit’s order denying en banc review is unreported

and reproduced at App.73a.

The district court’s opinion is available at 2019 WL

3719400 and reproduced at App.46a.

JURISDICTION

The Eleventh Circuit’s judgment was entered on

September 22, 2021. App.1a. Rehearing was denied

on December 29, 2021. App.73a. On March 21, 2022,

Justice Thomas extended the time for filing. This

Court has jurisdiction under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The Religious Land Use and Institutionalized

Persons Act of 2000, codified at 42 U.S.C. 2000cc2000cc-5, provides:

(a) General rule

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution, as defined

in section 1997 of this title, 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

governmental interest; and

of

a

compelling

(2) is the least restrictive means of furthering

that compelling governmental interest.

2

INTRODUCTION

In Holt v. Hobbs, this Court held that the Religious

Land Use and Institutionalized Persons Act does not

permit “unquestioning deference” to prison officials.

574 U.S. 352, 364 (2015). The statute’s “exceptionally

demanding” standard instead puts the burden on

defendants “to prove,” with evidence, that actions

substantially burdening a prisoner’s sincere religious

belief “constitute[] the least restrictive means of

furthering a compelling governmental interest.” Id. at

364. And when many other prison systems offer an

accommodation,

a

defendant

must

provide

“persuasive reasons” why it is “so different” from

other systems that it must deny the same

accommodations. Id. at 367, 369.

Georgia is not following Holt. For more than a

decade, Lester Smith has been litigating his request

to grow a full beard in accordance with his Muslim

faith. After this lawsuit had been pending for several

years, Holt was decided. But Georgia’s response was

grudging, following only the facts of Holt, not the law

of Holt. The Georgia Department of Corrections

allowed Smith to grow a half-inch beard like Holt’s,

but has doggedly refused anything more. Indeed,

GDOC has intentionally maintained its ignorance of

the practices of other prison systems.

The

Eleventh

Circuit

blessed

GDOC’s

intransigence, even though it is undisputed that 39

other prison systems nationwide, including the

Federal Bureau of Prisons (“BOP”), accommodate

untrimmed beards. The court reasoned that “[i]t is

enough to show [a] risk” of danger and that GDOC

was entitled to make “a calculated decision not to

absorb the added risks that its fellow institutions

3

have chosen to tolerate.” App.21a, 25a (cleaned up).

In reaching these conclusions, the Eleventh Circuit

relied heavily on its prior decision in Knight v.

Thompson, 797 F.3d 934 (11th Cir. 2015)—an opinion

that was written before Holt and vacated and

remanded for reconsideration in light of Holt.

The Eleventh Circuit’s reasoning presents two

circuit splits meriting review.

First, the Eleventh Circuit’s affirmation of

GDOC’s decision to ignore the practices of the many

other

jurisdictions

that

have

successfully

accommodated untrimmed beards splits from the

decisions of seven other circuits and directly conflicts

with Holt. The Eleventh Circuit is the only court of

appeals in the country to adopt such an approach.

Second, the Eleventh Circuit deepened an existing

4-3 circuit split over the appropriate degree of

deference to prison officials by holding that religious

accommodations may be denied on the basis of any

“plausible” “risk” to penological interests, if the

government simply asserts that it chooses to take no

risks.

The Eleventh Circuit also made an additional

ruling that cannot survive Ramirez v. Collier, 142

S. Ct. 1264 (2022). Prior to appeal, the district court

entered partial relief for Smith. It found that even

under the deferential Knight standard, GDOC had

not presented any “plausible” reason a three-inch

beard could pose a risk. App.68. But the Eleventh

Circuit held the district court could not consider

accommodations outside of Smith’s “final request for

relief” at trial, even where Smith had identified the

relief as religiously preferable, and so vacated the

relief. App.14a n.6. As Ramirez explains—and earlier

4

precedents confirm—“suggesting that it is [the

plaintiff’s] burden to identify any less restrictive

means * * * gets things backward.” 142 S. Ct. at 1281

(internal quotation omitted). Indeed, even this

narrower mistake draws from the same broader

errors of the Eleventh Circuit’s RLUIPA

jurisprudence—lightening the state’s strict scrutiny

burden.

The consequences of the Eleventh Circuit panel’s

opinion are grave. As Judge Martin explained in

dissent, the majority’s reasoning “is inconsistent with

Holt” and “renders the Supreme Court’s command in

Holt meaningless” in the Eleventh Circuit. App.37a,

38a. This Court should grant certiorari to resolve the

splits, clarify the application of RLUIPA’s strict

scrutiny standard, and ensure that RLUIPA’s

protections are applied evenly nationwide.

STATEMENT OF THE CASE

A. Factual and Procedural Background

Lester Smith is a devout Muslim who wishes to

grow a full-length beard—a tenet of Islam and one of

Smith’s sincerely held religious beliefs. He filed this

lawsuit in 2012, initially pro se. At that time, GDOC

prohibited inmates from growing beards of any length

unless they had a medical exception to grow a beard

between one-eighth and one-quarter inch in length.

Prison officials denied Smith’s requests for a religious

exemption, and on at least three occasions they

restrained Smith and shaved his beard against his

will. App.49a.

After the district court granted GDOC’s first

motion for summary judgment in 2014, Smith

appealed. Smith v. Owens, 848 F.3d 975, 977 (11th

5

Cir. 2017). While that appeal was pending, this Court

decided Holt. Ibid. In response to Holt, GDOC

modified its grooming policy to allow all inmates to

grow half-inch beards, tracking the particular halfinch beard accommodation requested by the prisoner

plaintiff in Holt. Id. at 978. GDOC then argued on

appeal that Smith’s claim was moot because he had

previously noted that a quarter-inch beard policy was

an “alternative, less restrictive option” to GDOC’s flat

ban. Id. at 977. The Eleventh Circuit rejected that

argument, and remanded in light of Holt. Id. at 981.

Meanwhile, in a separate pending RLUIPA case

out of Alabama, this Court granted certiorari, vacated

the Eleventh Circuit’s judgment, and remanded for

further consideration in light of Holt. See Knight v.

Thompson, 574 U.S. 1133 (2015). On remand, the

Eleventh Circuit reissued its opinion in Knight with

only two sentences changed. Knight held that there is

no RLUIPA violation when a prison shows “that its

departure from the practices of other jurisdictions

stems not from a stubborn refusal to accept a

workable alternative, but rather from a calculated

decision not to absorb the added risks that its fellow

institutions have chosen to tolerate.” 797 F.3d at 947.

The Eleventh Circuit specifically rejected precedents

from three other circuits that, even predating Holt,

had held that the “efficacy of less restrictive

measures” already in use must be considered. Id. at

946 (citing Warsoldier v. Woodford, 418 F.3d 989, 999

(9th Cir. 2005); Spratt v. Rhode Island Dep’t of Corr.,

482 F.3d 33, 41 (1st Cir. 2007) (adopting Warsoldier);

Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007)

(same)).

6

On remand, Smith explained in his deposition that

some Islamic teachings permit adherents to grow a

fist-length beard if they cannot grow an untrimmed

beard. App.49a. Smith also explained that under his

understanding of Islam it is “preferable” to never trim

one’s beard but that, if forced to trim his beard, he

must maintain “at least a fistful of beard hair.”

App.49a, 79a.

The district court denied both parties’ motions for

summary judgment, and the case proceeded to a twoday bench trial.

B. Proceedings in District Court

At trial, GDOC admitted that its policy places a

substantial burden on Smith’s religious exercise.

App.10a. However, GDOC argued that it could not

allow any religious exemption beyond its new policy

of half-inch beards because of concerns over safety,

security, uniformity, minimizing the flow of

contraband, identification of inmates, hygiene, and

cost. App.10a n.2.

After trial, the district court issued lengthy

findings and conclusions. The district court found that

“Georgia is among a small minority of states that

restricts beards to one half-inch or less and does not

allow any religious exemptions.” App.50a. The trial

court found that 37 states, the District of Columbia,

and the BOP all permitted inmates to grow beards of

any length, with some requiring that they first apply

7

for a religious exemption. App.37a. 1 The trial court

found that an additional four states, while not

allowing full untrimmed beards, allowed religious

beards longer than GDOC’s half-inch limit. App.61a.

The district court found that “[n]otwithstanding

GDOC’s numerous assertions that beards lead to

more violence, contraband smuggling, and security

issues, GDOC offered no evidence showing that states

that allow beards experience more of these issues.”

App.66a (citations omitted). GDOC also failed to

identify any material difference between its

operations and prison systems that accommodate

longer beards. Ibid. (citing ECF No. 235 at 149-150).

The district court concluded that GDOC “has not even

attempted to determine how other states manage

inmates with beards.” App.66a (citation omitted).

Regarding GDOC’s contraband concerns, the court

noted that Smith’s expert, John Clark, explained how

a self-search method that takes “maybe three

seconds” is used by prisons nationwide and “every

time a police department or any other law

enforcement agency arrests somebody or books

somebody” with a beard. ECF No. 236 at 117-119; see

also App.70a. The district court credited Clark’s

testimony that this method is safe, and found that

“GDOC has offered no logical explanation as to why it

could not use the method currently employed by BOP

and other states for searching a beard.” App.62a. The

district court credited Clark’s testimony that prison

1

Since the trial court made its findings, Virginia has changed

its policy to allow prisoners to grow beards of any length unless

they have used a beard to conceal contraband, promote gang

identification, or disguise their identity. See Greenhill v. Clarke,

944 F.3d 243, 248 (4th Cir. 2019).

8

systems which permit longer beards have experienced

no difficulties with violence or safety, finding that “it

could very well be that GDOC’s interests in prison

safety and security would be furthered if it allows

longer beards.” App.67a. The district court also

determined that GDOC’s policy is underinclusive

because “[b]eards do not appear to present any more

of a problem than longer head hair or clothes.”

App.60a.

Relying on its factual findings, the district court

held that GDOC’s policy forbidding all beards longer

than

a

half-inch

was

“inconsistent

and

underinclusive” and not the least restrictive means of

pursuing any of the compelling interests GDOC had

identified. App.52a. The court thus declared that

GDOC’s “policy limiting inmates’ beard length to onehalf inch without any religious exemptions violates

[RLUIPA].” App.72a. The district concluded that

GDOC’s arguments were specifically “unpersuasive in

the context of allowing a three-inch beard because

GDOC has presented little evidence to show that a

three-inch beard is a significant security concern, and

it already allows three-inch head hair.” App.68a.

The court also held that GDOC could address its

concerns, at least as to three-inch beards, by

“enforc[ing], and amend[ing] if necessary, the

disciplinary policies it has for rule violations” in light

of the court’s finding, based on Clark’s testimony, that

“if prisoners violate rules with their facial hair, GDOC

should not allow it.” App.69a.

However, the district court did not extend its

holding to Smith’s request for an untrimmed beard,

holding that Knight’s understanding of the deference

due to prison officials was controlling. According to

9

the district court, “[w]hile three inches of head hair is

manageable, it is plausible that a beard of unlimited

length could be much more difficult for GDOC to

manage.” App.61a-62a. Based on this “plausible”

concern, and “with due deference to the experience

and expertise of prison and jail administrators,” the

court concluded that “GDOC has offered persuasive

reasons why it cannot allow untrimmed beards at this

time for which deference is due.” App.61a, 62a. An

untrimmed beard’s “ability to be used to cause harm

in the more violent male facilities, its ability to hide

contraband more easily, the added difficulty in

searching an untrimmed beard, and its ability to

disguise a face” sufficed under the Knight standard to

justify a ban on untrimmed beards, but not three-inch

beards. Ibid.

GDOC appealed and Smith cross-appealed.

C. The Eleventh Circuit’s Decision

The Eleventh Circuit panel majority purported to

affirm in part and vacate in part, although the effect

was to actually reverse the entire district court

decision. Relying heavily on its prior opinion in

Knight, the majority held that it was sufficient for the

district court to identify “plausible” security concerns

associated with untrimmed beards. App.20a. The

panel reasoned that “it would be actually

unmanageable to institute a grooming policy that

may plausibly result in harm to inmates, staff, or the

public,” that RLUIPA “does not require prison

systems to show with absolute certainty that an

alternative policy will have adverse effects,” and that

“[i]t is enough to show the risk of those effects” given

the deference that prison officials are entitled to.

App.21a.

10

The Eleventh Circuit acknowledged the district

court’s finding that 37 states, the District of

Columbia, and the federal Bureau of Prisons permit

untrimmed beards. App.24a. But, quoting Knight, the

panel restated that other jurisdictions’ practices are

“not controlling” as “RLUIPA does not pit institutions

against one another in a race to the top of the risktolerance or cost-absorption ladder.” App.25a (quoting

Knight, 797 F.3d at 947). Rather, GDOC’s burden was

to show only “a calculated decision not to absorb the

added risks that its fellow institutions have chosen to

tolerate.” Ibid. The panel majority held that GDOC

did not have to investigate other prison systems’

policies: “Holt does not require the GDOC to detail

other jurisdictions’ successes and failures with their

grooming policies to satisfy a RLUIPA inquiry.” Ibid.

The panel majority thus vacated the district

court’s holding that GDOC failed to justify its existing

half-inch limit under RLUIPA, as well as its directive

to permit a three-inch beard as a less restrictive

alternative. Despite Smith’s deposition testimony

that a fist-length limit was religiously preferable to

the half-inch limit, the court of appeals held that it

was reversible error for the district court to consider

any possible remedy other than the plaintiff’s “final

request for relief” at trial. App.14a n.6.

Judge Martin dissented. She explained that Holt

required GDOC “to do more than articulate mere

arguments for why Georgia is uniquely unable to

manage untrimmed beards,” and that on the actual

evidence presented at trial, “the only permissible

conclusion is that RLUIPA entitles Smith to grow an

untrimmed beard.” App.34a, 38a. Judge Martin

recognized that the district court had “systematically

11

rejected” the key GDOC testimony. App.42a. And on

GDOC’s efforts to distinguish other jurisdictions, she

noted that the district court held—and GDOC

admitted—both that “GDOC had not even attempted

to determine how other states manage inmates with

beards” and that “GDOC provided no information,” let

alone admissible evidence, to support distinguishing

their prison population from other states. App.36a

(cleaned up).

Finally, Judge Martin concluded that “the

majority opinion renders the Supreme Court’s

command in Holt meaningless, such that prisons in

Alabama, Georgia, and Florida can unjustifiably deny

prisoners religious freedoms they would enjoy almost

everywhere else in the country.” App.38a.

REASONS FOR GRANTING THE WRIT

This Court should grant review because the

Eleventh Circuit’s decision deepens two existing postHolt circuit splits concerning the amount of deference

owed to prison officials under RLUIPA.

Holt set a sensible balance for resolving prisoner

religious liberty claims. Under Holt, courts are bound

to “respect th[e] expertise” of prison officials on

certain factual matters within that expertise. 574

U.S. at 364. But courts also retain a “responsibility,

conferred by Congress, to apply RLUIPA’s rigorous

standard” in reaching an ultimate legal conclusion

about whether strict scrutiny is satisfied. Ibid.

Holt provides two important points of guidance

that have resulted in entrenched circuit splits.

First, where “many other” jurisdictions have

accommodated religious practices safely, a state

refusing that accommodation bears the burden “to

12

show * * * that its prison system is so different from

the many institutions that allow” the practice. Holt,

574 U.S. at 367. The prison “must, at a minimum,

offer persuasive reasons” why it cannot provide the

same accommodations. Id. at 369. This Court recently

reaffirmed that obligation in Ramirez. See 142 S. Ct.

at 1279 (“Respondents do not explain why.”). This

question has resulted in a 7-1 circuit split.

Second, the defendant bears the burden of proof to

“establish” that it has a compelling interest and that

its policies burdening religious exercise are the least

restrictive means available to achieve those interests.

Holt, 574 U.S. at 368. In making this determination,

a court may not defer to “prison officials’ mere say-so.”

Id. at 369; Ramirez, 142 S. Ct. at 1279 (rejecting

prison officials’ request that “we simply defer to their

determination. That is not enough under RLUIPA.”).

This has resulted in a 4-3 circuit split.

The Eleventh Circuit is on the wrong side of both

of these splits. It alone rejects a defendant’s burden to

distinguish other prison systems that have

successfully implemented an accommodation, and it

and two other circuits wrongly defer to prison officials’

conclusory assertions about security concerns rather

than subjecting them to meaningful factual scrutiny.

Finally, the Eleventh Circuit erred by reversing

the district court’s partial accommodation of a threeinch beard on the ground that Smith’s “final request

for relief” was an untrimmed beard. App.14a n.6. That

created a direct conflict with the plain text of

RLUIPA, which places the burden on defendants to

prove that they are pursuing the least restrictive

alternative. And it created direct conflicts with this

Court’s decision in Ramirez. There, this Court itself

13

proposed compromise positions that would both

accommodate prisoner religious exercise and prison

systems’ interests in safety and security.

The Eleventh Circuit’s decision in this case

deepens long-existing circuit splits—one side of which

denies inmates the ability to exercise their religion in

a safe manner and threatens the religious rights of

prisoners in a large portion of the country. Certiorari

is warranted.

I. The Eleventh Circuit’s decision deepens an

existing, acknowledged, and intractable 7-1

circuit split over the weight given to the

practices of other prison systems.

This Court held in Holt that when many other

jurisdictions accommodate a religious practice a

prison “must, at a minimum, offer persuasive

reasons” explaining why it is “so different” from those

other jurisdictions. 574 U.S. at 367, 369. That holding

flows directly from RLUIPA’s text, which puts the

burden of proof on prison officials to “demonstrate[]”

that policies substantially burdening sincere religious

belief both further a compelling state interest and are

“the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. 2000cc1(a); see also 42 U.S.C. 2000cc-2(a); 2000cc-2(b).

The decision below deepens a longstanding split

over the relevance and weight of evidence of religious

accommodations granted to prisoners in other prison

systems. On one side of the split stand seven

circuits—the First, Second, Fourth, Fifth, Sixth,

Ninth, and Tenth—which require prison officials to

consider accommodations granted in other prison

systems and explain why they cannot provide them.

On the other side stands just one circuit that does not

14

require prison officials to make this showing—the

Eleventh.

The split began before Holt was decided in 2015,

but has become only more entrenched since then.

Prior to Holt, five circuits interpreted the

government’s burden of proof under RLUIPA to

require that government defendants consider less

restrictive policies employed by other prison systems,

and demonstrate why they would not be workable.

See, e.g., Warsoldier, 418 F.3d at 1000 (holding that a

state must “explain why another institution with the

same compelling interests was able to accommodate

the same religious practice” to carry its burden);

Spratt, 482 F.3d at 41 (adopting Warsoldier and

holding that state failed to explain why less

restrictive alternative offered in another jurisdiction

“would be unfeasible”); Yellowbear v. Lampert, 741

F.3d 48, 63 (10th Cir. 2014) (Gorsuch, J.) (“[T]he

government’s burden here isn’t to mull the claimant’s

proposed alternatives, it is to demonstrate the

claimant’s alternatives are ineffective to achieve the

government’s stated goals.”); Couch v. Jabe, 679 F.3d

197, 203 (4th Cir. 2012) (approving Warsoldier and

requiring the government “acknowledge and give

some consideration to less restrictive alternatives”);

Jova v. Smith, 582 F.3d 410, 416 (2d Cir. 2009)

(approvingly noting that “other circuits have observed

that ‘the failure of a defendant to explain why another

institution with the same compelling interests was

able to accommodate the same religious practices’”

may defeat a strict scrutiny defense, citing

Warsoldier).

Shortly before Holt was decided, the Eleventh

Circuit expressly rejected these jurisdictions’ “more

15

strict proof requirement[s]” in Knight v. Thompson,

723 F.3d 1275, 1285-1286 (11th Cir. 2013), vacated,

574 U.S. 1133 (2015). The Knight panel considered

and rejected the holdings of “some of our sister courts”

that “prison administrators must show that they

‘actually considered and rejected the efficacy of less

restrictive measures before adopting the challenged

practice.’” Id. at 1285-1286. It also criticized the

plaintiff’s “heavy fixation on the policies of other

jurisdictions,” holding that “RLUIPA does not pit

institutions against one another in a race to the top of

the risk-tolerance or cost-absorption ladder.” Id. at

1286. The Knight panel held that prison officials may

show that a “requested exemption poses actual

security, discipline, hygiene, and safety risks” and

then simply assert that they have not “elected to

absorb those risks.” Ibid. Under Knight, a prison need

only demonstrate “that its departure from the

practices of other jurisdictions stems not from a

stubborn refusal to accept a workable alternative, but

rather from a calculated decision not to absorb the

added risks that its fellow institutions have chosen to

tolerate.” Ibid.

This Court vacated that original Knight panel

opinion and remanded for reconsideration in light of

Holt. See Knight, 574 U.S. 1133. But on remand the

Eleventh Circuit reinstated its opinion and changed

only two sentences not relevant here. See Knight, 797

F.3d at 946-947. Thus, immediately after Holt was

decided, the Eleventh Circuit doubled down on the

preexisting split.

Other Circuits took a different approach post-Holt.

Since Holt was decided, the Fifth and Sixth Circuits

have joined the majority view that defendants “face[]

16

a steep uphill battle when other prison systems can

accommodate a particular religious practice,” and

must show significant differences relevant to the

compelling

interest

analysis.

Ackerman

v.

Washington, 16 F.4th 170, 191 (6th Cir. 2021); see

also Tucker v. Collier, 906 F.3d 295, 305 (5th Cir.

2018) (state failed to rebut feasibility of

accommodation offered in “its neighboring state”);

Ware v. Louisiana Dep’t of Corr., 866 F.3d 263, 273

(5th Cir. 2017) (state failed to sufficiently distinguish

“the grooming policies of the prisons of 39 other

jurisdictions”). And other circuits previously

committed to that rule have reaffirmed it. See, e.g.,

Nance v. Miser, 700 Fed. Appx. 629, 632-633 (9th Cir.

2017) (prison failed under Holt to distinguish “other

well-run institutions permit[ting] the use of scented

oils”); Crawford v. Clarke, 578 F.3d 39, 44 (1st Cir.

2009) (continuing to apply Spratt and finding state

failed to “differentiate” other facilities “on the issues

of compelling governmental interest or least

restrictive means”); Williams v. Annucci, 895 F.3d

180, 193 (2d Cir. 2018).

The panel opinion below has made the split even

more intractable. The Eleventh Circuit relied heavily

on Knight, and in particular on Knight’s holding that

accommodations granted in other jurisdictions can be

ignored if the defendant merely claims to be more

“risk-averse.” 723 F.3d at 1286; App.25a.

The Eleventh Circuit’s approach directly conflicts

with Holt, in which the defendants also relied heavily

on Knight to defend their position of not seriously

considering the practices in other institutions. Brief

for Respondents at 42, Holt v. Hobbs, 574 U.S. 352

(2015) (No. 13-6827). This Court rejected those

17

arguments and held that a state can deny religious

accommodations that are commonly granted in other

jurisdictions only after proving that it is “so different”

that solutions employed elsewhere “cannot be

employed at its institutions.” Holt, 574 U.S. at 367.

The fact “[t]hat so many other prisons allow inmates

to grow beards while ensuring prison safety and

security suggests that the Department could satisfy

its security concerns through a means less restrictive

than denying petitioner the exemption he seeks.”

Holt, 574 U.S. at 368-369. And RLUIPA requires a

defendant to prove, with evidence, that less restrictive

alternatives are unavailable. Id. at 364-365.

In Ramirez, this Court reaffirmed those principles,

criticizing Texas’s failure to “explore any relevant

differences between Texas’s execution chamber or

process and those of other jurisdictions.” Ramirez, 142

S. Ct. at 1279. Cf. Mast v. Fillmore County, 141 S. Ct

2430, 2431 (2021) (Gorsuch, J., concurring) (“lower

courts failed to give sufficient weight to rules in other

jurisdictions” and “[i]t is the government’s burden to

show [those] alternative[s] won’t work”).

The Eleventh Circuit thus stands entirely alone in

stubbornly perpetuating an understanding of the

defendant’s burden of proof that renders unnecessary

any serious consideration of practices in other

jurisdictions.

GDOC did not provide evidence supporting any

differences between its prison operations and those of

the 38 other states (plus the BOP) that accommodate

untrimmed beards. GDOC’s claims about “more

violent inmates” and lower “staff ratios” were pure

conjecture. App.36a. In fact, “GDOC is staffed slightly

better than the BOP” and “in the middle for prison

18

systems in the United States,” “GDOC has no

information on the percentage of violent inmates in

other prison systems,” and it “has not even attempted

to determine how other states manage inmates with

beards.” App.65a-66a. GDOC’s concerns about

contraband were shown to be the product of not

searching beards, and of not understanding that

beards can be searched without any need for officers

to be near inmates. App.32a, 54a-55a, 57a.

The Eleventh Circuit did note that at least some of

the jurisdictions permitting untrimmed beards

reserved the right to deny them to particular

prisoners in light of individual security concerns, and

speculated that Smith would be denied an untrimmed

beard because of his disciplinary history. App.16a.

But that confuses the burdens again; because Georgia

was excused from addressing how other states handle

beard accommodations in response to other

disciplinary issues before the factfinder, this was

mere appellate speculation. GDOC never made any

individualized determination that granting Smith an

untrimmed beard would pose any special dangers;

GDOC simply applied its blanket policy that no

prisoners can grow beards longer than a half-inch.

The Eleventh Circuit was also mistaken. Smith’s

expert testified that—because untrimmed beards are

not considered to pose meaningful risks when paired

with best-practice search policies—many well-run

institutions do not restrict religious grooming

practices based on histories of discipline or violence

unrelated to the beard itself. App.35a n.2. And this

Court explained in Holt that, rather than denying an

accommodation initially, “an institution might be

entitled to withdraw an accommodation if the

claimant abuses the exemption in a manner that

19

undermines the prison’s compelling interests.” Holt,

574 U.S. at 369. Other circuits agree that religious

accommodations should be denied on disciplinary

grounds only if they are specifically abused. See, e.g.,

Davis v. Davis, 826 F.3d 258, 272 (5th Cir. 2016);

Greenhill, 944 F.3d at 248. The district court’s

original injunction likewise permitted withdrawal for

abuse. App.72a.

The Eleventh Circuit has had seven years and

numerous opportunities to bring its RLUIPA

jurisprudence in line with the plain text of the

statute, this Court’s decision in Holt, and the

interpretations adopted by a majority of other

circuits. Instead, it has doubled down on its erroneous

Knight precedent and denied rehearing en banc. This

Court should grant certiorari to resolve the question.

II. The decision below deepens an existing 4-3

split over what level of deference prison

officials receive under RLUIPA’s strict

scrutiny standard.

Courts of appeal are split 4-3 over the correct legal

standard to apply when analyzing the government’s

burden under RLUIPA. In Cutter v. Wilkinson, this

Court suggested that courts should apply RLUIPA’s

text by employing its strict scrutiny standard, but

with an extratextual “due deference to prison

administrators’ experience and expertise.” 544 U.S.

709, 710 (2005). While dicta, that language spawned

considerable confusion in the lower courts and created

an acknowledged circuit split over how “deference”

interacts with strict scrutiny in RLUIPA cases.

Following Cutter, scholars noted that, “[s]ince

strict scrutiny and deference to the government are in

a sense opposites,” this Court’s guidance threatened

20

“incoherence.” David M. Shapiro, To Seek A Newer

World: Prisoners’ Rights at the Frontier, 114 Mich. L.

Rev. First Impressions 124, 126 (2016). Lower courts

were also unsure how to reconcile these contradictory

commands, and the circuits split over “whether they

should offer deference to prison officials or if they

should take a ‘harder look’ at the explanations

offered.” Barrick Bollman, Deference and Prisoner

Accommodations Post-Holt: Moving RLUIPA Toward

“Strict in Theory, Strict in Fact”, 112 Nw. U. L. Rev.

839, 853 (2018). As the First Circuit explained in

Spratt, “[t]he level of deference to be accorded to

prison administrators under RLUIPA remains an

open question.” 482 F.3d at 42 n.14.

Holt attempted to bring order to this confusion.

This Court explained that the lower courts “thought

that they were bound to defer to the [government’s]

assertion that allowing petitioner to grow such a

beard would undermine its interest in suppressing

contraband.” Holt, 574 U.S. at 864. Not so: “RLUIPA,

like RFRA, ‘makes clear that it is the obligation of the

courts to consider whether exceptions are required

under the test set forth by Congress.’” Ibid.

Accordingly, Holt explained, the government was

required “not merely to explain why it denied the

exemption but to prove that denying the exemption is

the least restrictive means of furthering a compelling

governmental interest.” Ibid. (emphasis added). This

Court then went on to explain that prison

administrators deserve “respect” as “experts in

running prisons,” but “that respect does not justify

abdication of the responsibility, conferred by

Congress, to apply RLUIPA’s rigorous standard.”

Ibid. Cf. Fed. R. Evid. 702(a)-(b) (to be admissible,

21

expert testimony must be based on “knowledge” and

“sufficient facts or data”).

When articulating the legal standard for prisoner

RLUIPA claims, the Holt majority never once

suggested that “deference” was appropriate, and

conspicuously omitted any citation to Cutter’s

troublesome dicta. Shapiro, 114 Mich. L. Rev. First

Impressions at 127 (“[T]he omission of Cutter must

have been deliberate.”).

A. The Second, Fifth, Sixth, and Ninth

Circuits apply strict scrutiny while

respecting prison officials’ relevant

expertise.

At least four circuits take RLUIPA’s text—and

this Court’s guidance in Holt—seriously, respecting

the expertise of prison officials but holding the

government to its burden of proof. In practice, these

courts require prison officials to support their

assertions with probative evidence, rather than

deferring to otherwise conclusory, unsupported, or

uninformed assertions.

Second Circuit. In Williams v. Annucci, the Second Circuit recognized the dispute over “the specificity” with which the government was required to support its alleged compelling interest, and reaffirmed its

view that “Holt made it plain that courts need not accept the government’s claim that its interest is compelling on its face,” and that “courts abdicate their responsibility to ‘apply RLUIPA’s rigorous standard’ by

deferring to the government’s ‘mere say-so’ without

question.” 895 F.3d at 189-190.

The government relied on “only one declaration

that claims, in a conclusory manner,” that the

22

government “met its burden to show that it had a compelling interest in cost-efficient food service.” Williams, 895 F.3d at 191. The panel disagreed, explaining that the government failed to say “precisely how

much” accommodating the religious diet “would cost,”

or how much it would cost “relative to the overall cost

of feeding inmates.” Ibid. “Nor has it shown the added

cost, if any,” of adopting the inmate’s alternative suggestions. Ibid. In the end, the panel explained that the

government “did not discuss, much less demonstrate,

why it could not, at least,” provide the alternate requested accommodation of removing offending foods

from the meals it already prepares. Id. at 194. And

because under RLUIPA the government “must prove

that each of the inmate’s proffered alternatives is too

burdensome,” id. at 193, the court vacated the decision below and remanded for further proceedings.

Fifth Circuit. The Fifth Circuit has also repeatedly affirmed that respect for the expertise of prison

officials cannot devolve into blind deference to their

office. See, e.g., Ali v. Stephens, 822 F.3d 776, 783 (5th

Cir. 2016) (“Rather than deferring to the prison’s general policy regarding a matter, we have consistently

tested the prison’s asserted interests with regard to

the risks and costs of the specific accommodation being sought.”) (alteration in original) (quoting Chance

v. Texas Dep’t of Criminal Justice, 730 F.3d 404, 418

(5th Cir. 2013)).

In Ware v. Louisiana Department of Corrections,

for example, the panel was confronted with a request

from a Rastafarian inmate to grow long, uncut hair in

violation of the prison’s grooming policy. 866 F.3d at

266. The panel noted that “respect” for the expertise

of prison officials does not justify deference to “policies

23

grounded on mere speculation, exaggerated fears, or

post-hoc rationalizations.” Id. at 268 (quoting Davis,

826 F.3d at 265). Looking at the government’s

asserted compelling interest, the panel concluded

that Louisiana had failed to adequately explain why

its policies were so underinclusive, applying only to

some Department of Corrections inmates and not

others: “DOC offered no evidence to support its bare

assertion that this difference resulted in dreadlocks

among parish inmates presenting less of a risk to

DOC’s asserted interests than dreadlocks among

DOC inmates would.” Id. at 272. The court continued:

“In the face of this absence of evidence on the risks

posed by parish inmates, accepting DOC’s assertion

that parish inmates pose less of a security risk than

DOC inmates would afford DOC and Secretary

LeBlanc the sort of ‘unquestioning deference’ in our

RLUIPA analysis that the Supreme Court has

proscribed.” Ibid.

The panel therefore concluded that “DOC failed to

meet its burden under RLUIPA of showing both that

its grooming policies serve a compelling interest and

that they are the least restrictive means of serving

any such interest.” Ware, 866 F.3d at 274.

Sixth Circuit. The Sixth Circuit has also

recognized that respect for prison officials’ expertise

is distinct from deference to the government’s

unsupported assertions. In Ackerman v. Washington,

for example, the government argued that

accommodating Jewish inmates’ request for kosher

meat and dairy would be too expensive. 16 F.4th at

190. The panel noted that prison officials are due

“deference” when it comes to doing an “analysis” of the

actual costs related to providing accommodations but

24

explained that the government failed to even engage

in that analysis. Id. at 188. For example, the

government didn’t provide the court with any

information about how many other accommodations

would be needed (highly relevant to cost) and never

explained why it was able to provide compliant kosher

meals in the past. Id. at 190-191. Thus, although the

government articulated a cost concern (and the

requested accommodation certainly posed plausible

risks to their budget), the Sixth Circuit concluded that

the government failed “to ‘show that it lack[ed] other

means of achieving its desired goal[.]’” Id. at 191

(citing Holt, 574 U.S. at 364). This, the panel

explained,

was

consistent

with

RLUIPA’s

“exceptionally demanding” legal standard, id. at 191,

and with Holt.

Ninth Circuit. The Ninth Circuit has also

repeatedly looked beyond the government’s mere sayso, even before Holt. E.g., Warsoldier, 418 F.3d at 995.

Since then, then Ninth Circuit has held that courts

cannot “grant ‘unquestioning deference’ to the

government’s claim of a general security interest,”

and held that “prison officials cannot ‘justify

restrictions on religious exercise by simply citing to

the need to maintain order and security in a prison.’”

Johnson v. Baker, 23 F.4th 1209, 1217 (9th Cir. 2022).

In Johnson, a Muslim prisoner sought permission to

have a small vial of scented prayer oil in his cell for

daily prayer. Id. at 1213. The government, however,

offered the panel scant evidence to support its ban.

Even though the prison’s concern was that the smell

could hide other contraband, the prison could not

explain why prisoners were allowed to “keep many

[other] scented products in their cells,” and the

government’s witnesses failed to present any evidence

25

regarding the “quantity” of prayer oil needed to “cover

the smell of contraband.” Id. at 1217. The panel thus

concluded that the government had not put forward

the “detailed evidence, tailored to the situation before

the court, that identifies the failings in the

alternatives advanced by the prisoner.” Ibid.

B. The Third, Fourth, and Eleventh Circuits

inappropriately defer to prison officials’

“mere say-so” when applying RLUIPA’s

strict scrutiny standard.

Despite the decisions of four other circuits and this

Court’s guidance in Holt, at least three circuits

continue to inappropriately defer to prison officials’

unsupported conclusory assertions, failing to hold the

government to its burden to prove that its actions

satisfy RLUIPA’s strict scrutiny standard.

Third Circuit. The Third Circuit continues to

defer to prison officials’ unproven assertions. In

Watson v. Christo, the majority deferred to the

prison’s assertion that it could not properly supervise

an inmate while he was praying with tefillin (leather

boxes and straps used in Jewish prayer). 837 Fed.

Appx. 877, 879 (3d Cir. 2020). The majority relied

almost exclusively on the “risky attributes” of

tefillin—that they include long leather straps and

small boxes which could be used to hide contraband—

even though the government put on no evidence that

these were anything more than theoretical concerns.

Id. at 881.

As the dissent explained, the government failed to

provide the court with information crucial to testing

its arguments. Watson, 837 Fed. Appx. at 885 (Phipps,

J., dissenting). The government did not “provide the

details of its staffing model” to the court, preventing

26

the court from testing the assertion that it had

inadequate staff to supervise the prayer. Ibid. The

prison also failed to explain why paying overtime to

guards to supervise the prayer would fail as a less

restrictive means as the prison “already authorizes

around 3,000 eight-hour overtime shifts per month.”

Ibid. Indeed, the government “fail[ed] to prove that

denying Watson access to Tefillin is the least

restrictive means of achieving its compelling

interests[.]” Id. at 883 (emphasis added). Proof is

what is needed, and “[w]ithout any such evidence, the

prison has not met its burden.” Id. at 885.

Fourth Circuit. The Fourth Circuit also relies on

Cutter’s deference dicta to deny accommodations

without holding the government to its statutory

burden of proof. In Faver v. Clarke, the panel deferred

to the government’s assertion that excluding all but a

single outside vendor from its facilities was the least

restrictive means of advancing its compelling interest

in safety and security, as contracting with a vendor

for repeated business gives the prison better

assurance that the products received are not

contraband. 24 F.4th 954, 957-958 (4th Cir. 2022). To

justify this exclusion of an Islamic prayer oil vendor,

the panel relied on testimony from the government

that in the past, having many different vendors

caused safety and security issues. Ibid.

Judge Motz dissented, pointing out that the

government conceded it “had not considered

contracting with an Islamic vendor of prayer oils,”

even though VDOC had acknowledged that it was

“‘the contractual obligations and the fiduciary

responsibility’ that a contract with the vendor

provides” that “‘gives [the VDOC] the confidence’ in

27

the safety and security promoted by its current singlevendor policy.” Faver, 24 F.4th at 964 (Motz, J.,

dissenting) (emphasis added). In fact, the government

“offered no reason why entering into a contract with

an Islamic vendor would fail to provide the VDOC

with exactly the same ‘confidence’” it had in its

existing single vendor. Ibid. The dissent aptly

characterized the majority’s analysis: “we cannot

simply ‘rubber stamp or mechanically accept the

judgments of prison administrators.’” Id. at 965.

Eleventh Circuit. The Eleventh Circuit has

repeatedly insisted on deference to even the most

uninformed prison officials, first in Knight and again

here. App.19a. The panel below relied primarily on

two “findings” from the district court, that it was

“‘plausible that a beard of unlimited length could be

much more difficult for GDOC to manage’” and that

“it was ‘plausible that allowing a close security inmate

like Smith an untrimmed beard could be dangerous

for prison security.’” App.20a. The panel then

upcycled these plausible concerns into enough “risk”

to satisfy Knight’s minimal burden, suggesting that

“it would be actually unmanageable to institute a

grooming policy that may plausibly result in harm to

inmates, staff, or the public.” App.21a. Therefore,

according to the panel, the government satisfied

RLUIPA’s strict scrutiny standard because “[i]t is

enough to show the risk” of potential “adverse effects.”

App.21a. (citing Knight, 797 F.3d at 947).

But “plausible” proof that an accommodation

“could be dangerous” falls far short of what RLUIPA

and Holt demand. As the dissent explained in detail,

GDOC’s factual claims rested on little more than ipse

dixit assertions. The district court found GDOC’s

28

testimony about contraband hidden in beards

unpersuasive given both GDOC’s lack of experience

with beards and the undisputed evidence that

inmates hide contraband anywhere that is not

searched. App.56a-57a. The district court also found

that GDOC “failed to demonstrate why beards would

pose a contraband problem if they were searched

along with head hair, mouths, and clothes,” App.57a,

and found that the record “persuasively indicates that

officers do not have to put themselves in danger to

effectively search a beard as implied by GDOC,” but

instead can use a straightforward self-search protocol

that the BOP has used since it “began allowing full

beards and long hair for inmates in the late 1970s.”

App.54a, 55a.

GDOC also “offered no meaningful evidence to

support [its] factual assertion” that it could not

accommodate untrimmed beards due to staffing

problems or a supposedly higher ratio of violent

offenders. App.36a (Martin, J. dissenting). And

GDOC’s concerns about inmates disguising their

appearance by shaving simply reprised an argument

that this Court rejected in Holt, and that the district

court found “could be addressed by enforcing the

policy that GDOC already has and making

improvements.” App.64a.

*

*

*

As these cases illustrate, the disagreements

among the lower courts below stem from Cutter and

Holt. On one side, courts are willing to accept

conclusory, uninformed testimony of prison officials

as sufficient to satisfy the government’s burden of

proof under RLUIPA’s strict scrutiny standard. These

courts rely heavily on Cutter’s deference dicta. On the

29

other side, courts emphasize respect for prison

officials’

knowledge,

but

nevertheless

hold

governments accountable for proving (with probative

evidence) that they have satisfied both elements of

RLUIPA’s demanding legal standard. Only this Court

can resolve the split.

III. The Eleventh Circuit’s denial of a partial

accommodation conflicts with this Court’s

decision in Ramirez.

The Eleventh Circuit also made a ruling on

remedies that directly conflicts with this Court’s

decision in Ramirez. The panel majority held that

once the district court had rejected Smith’s preferred

relief of an untrimmed beard, it was not permitted to

order a partial accommodation of Smith’s request in

the form of a three-inch beard. The panel majority

held that Georgia’s burden was solely to “prov[e] that

the untrimmed beard option would not sufficiently

serve its security interests,” and that the district

court could not consider “compromise[s].” App.12a,

15a (emphasis in original).

Although the opinion contains language

suggesting the three-inch possibility was not raised

below, App.13a-14a, that suggestion is plainly

inconsistent with the record and the district court’s

specific findings. The district court acknowledged

Smith’s testimony and sincere belief that Islam

requires “that he not trim his beard and, that if he

must trim it, to maintain at least a fistful of beard

hair.” App.15a, 49a. Like this Court in Holt, the

district court recognized that GDOC’s own policies

about head hair raised obvious questions about why

GDOC could not accommodate beards of a similar

length—questions GDOC was unable to answer.

30

The Eleventh Circuit’s actual holding on this point

can be found in footnote 6: that because “[i]t is not

always clear what a plaintiff’s final request for relief

will be before, or even during, trial,” Smith’s

deposition testimony about a fist-length alternative,

and even the questions that GDOC asked its own

witnesses about that alternative, must be entirely

disregarded. App.14a n.6.

This see-no-evil holding is in direct conflict with

Ramirez, where this Court itself proposed several

possible ways that Texas might “reasonably

address[]” its interests “by means short of banning all

touch in the execution chamber.” Ramirez, 142 S. Ct.

at 1281. Yet Texas had “do[ne] nothing to rebut these

obvious alternatives,” and instead “suggest[ed] that it

is Ramirez’s burden to ‘identify any less restrictive

means.’” Ibid. That “gets things backward”: “[o]nce a

plaintiff has made out his initial case under RLUIPA,

it is the government that must show its policy ‘is the

least restrictive means of furthering [a] compelling

governmental interest.’” Ibid. (quoting 42 U.S.C.

2000cc-1(a)(2)).

So too here. The Eleventh Circuit’s holding that

obvious less restrictive alternatives can be ignored if

the plaintiff did not specifically request them (or did

not specifically request them in his final request for

relief) “gets things backward,” effectively shifting to

plaintiffs a burden RLUIPA assigns to defendants

and preventing compromises RLUIPA was designed

to foster. The Eleventh Circuit relied on a body of

lower court jurisprudence positing that Congress,

despite putting the burden of proof on defendants,

could not have intended for defendants to prove a

negative. See, e.g., United States v. Wilgus, 638 F.3d

31

1274, 1288-1289 (10th Cir. 2011) (collecting cases).

Perhaps defendants and courts need not speculate

about alternatives that were never suggested and

might not serve the plaintiff’s religious needs at all.

See Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir.

1996) (plaintiff actively disclaimed any alternatives to

the sweat lodge ceremony he desired). But here the

Eleventh Circuit has weaponized that principle to

deny obviously lesser-included relief that Smith

specifically testified would be better than nothing.

The Eleventh Circuit even vacated the district court’s

declaration that GDOC failed to justify its existing

half-inch policy under RLUIPA. Smith requested that

relief throughout these proceedings and RLUIPA

permits him to challenge GDOC’s existing policies,

whether he is entitled to his preferred alternative or

not.

While correcting this error in isolation would not

give Smith the full relief to which he is entitled,

clarity on this issue in the lower courts is much

needed and could be provided in the course of

resolving the additional questions presented by this

petition.

IV. This petition presents an excellent vehicle

for addressing recurring questions of

nationwide importance.

This petition offers the Court an excellent vehicle

for resolving two entrenched circuit splits and

providing significant, meaningful relief to religious

32

prisoners in three of the Nation’s largest prison

systems. 2

With respect to prison grooming policies alone, the

Knight rule has prevented prisoners of numerous

faiths from complying with religious mandates, even

as 39 other prison systems have safely accommodated

long beards for Jews, Muslims, Sikhs, and adherents

of other religions. Yet the Eleventh Circuit’s overly

deferential interpretation of RLUIPA’s strict scrutiny

command, and similar holdings in the Fourth and

Third Circuits, restrict inmates’ rights to religious

diets, prayer, worship services, consumption of

religious materials, and a host of other religious

activities.

Reining in the errant decision in Knight will not

only ensure justice for the thousands of incarcerated

religious adherents who are being wrongfully

deprived of religious exercise. It will also draw a clear

line between due respect for actual expertise rooted in

knowledge and data and blind deference to the mere

say-so of prison officials just because they are prison

officials.

This case also presents an excellent vehicle for

addressing these important and recurring questions.

The issues were squarely presented to the courts

below, and there are no procedural obstacles to

reaching the questions presented. Moreover, this case

presents a unique opportunity to consider these

issues after a full bench trial, including significant

2

As of 2019, Georgia, Alabama, and Florida had a combined

prison and jail inmate population of 277,449 inmates. State Statistics Information, National Institute of Corrections,

https://perma.cc/AHY2-ZDHZ.

33

expert testimony on both sides, rather than in the

context of purely legal preliminary motions.

The key facts are also undisputed. The record

shows that a strong majority of other jurisdictions

accommodate untrimmed beards. App.24a. GDOC’s

witnesses acknowledged that they had no experience

with beards, had no knowledge about how other states

accommodate them, and made no investigations into

those issues. App.52a-60a. And the district court

made detailed findings that make clear that GDOC’s

reasons for opposing full beards rested on

assumptions that were admittedly speculative.

App.61a, 68a.

*

*

*

The decision below “renders the Supreme Court’s

command in Holt meaningless” in the Eleventh

Circuit. App.38a. The Eleventh Circuit has directly

acknowledged that it has split from other circuits and,

with this decision, entrenched and deepened the

acknowledged splits. This Court should protect the

rights of religious inmates and clarify the proper level

of deference due to prison officials.

CONCLUSION

For all these reasons, the Court should grant the

petition.

34

Respectfully submitted.

MARK L. RIENZI

ERIC C. RASSBACH

NICHOLAS R. REAVES

CHRIS PAGLIARELLA

JAMES J. KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

J. SCOTT BALLENGER

Counsel of Record

SARAH SHALF

APPELLATE LITIGATION CLINIC

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Charlottesville, VA 22903

(202) 701-4925

sballenger@law.virginia.edu

Counsel for Petitioner

APRIL 2022