Amicus Curiae Brief — Lester J. Smith, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

No. 21-1405

In the

Supreme Court of the United States

________________

LESTER J. SMITH,

v.

Petitioner,

TIMOTHY WARD, COMMISSIONER OF GEORGIA

DEPARTMENT OF CORRECTIONS IN HIS OFFICIAL

CAPACITY,

Respondent.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

________________

BRIEF OF AMICUS CURIAE

RELIGIOUS FREEDOM INSTITUTE

IN SUPPORT OF PETITIONER

________________

JOHN A. MEISER

Counsel of Record

NICOLE STELLE GARNETT

RICHARD W. GARNETT IV

FRANCESCA GENOVA MATOZZO

NOTRE DAME LAW SCHOOL

RELIGIOUS LIBERTY CLINIC

1338 Biolchini Hall of Law

Notre Dame, IN 46556

(574) 631-3880

jmeiser@nd.edu

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE.............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................2

ARGUMENT ................................................................6

I.

The opinion below defies RLUIPA, which

demands relief when the State fails to

justify a substantial burden on religious

exercise ..............................................................6

II.

The Eleventh Circuit’s rule contradicts the

approach of other federal circuits ..................12

III.

The Eleventh Circuit’s rule forces religious

believers to either accept an all-or-nothing

approach to RLUIPA relief or negotiate

against themselves .........................................15

CONCLUSION ..........................................................19

ii

TABLE OF AUTHORITIES

Cases

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................ 8, 9, 11

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ................................................ 14

Couch v. Jabe,

679 F.3d 197 (4th Cir. 2012) .................................. 12

Discount Tobacco City & Lottery, Inc. v. United

States, 674 F.3d 509 (6th Cir. 2012) ...................... 14

Faver v. Clarke,

24 F.4th 954 (4th Cir. 2022)............................. 12, 13

Green v. Tudor,

685 F. Supp. 2d 678 (W.D. Mich. 2010) ................. 18

Hamilton v. Schriro,

74 F.3d 1545 (8th Cir. 1996) ............................ 14, 15

Holt Civic Club v. City of Tuscaloosa,

439 U.S. 60 (1978) .................................................. 16

Holt v. Hobbs,

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

Kemp v. Liebel,

877 F.3d 346 (7th Cir. 2017) .................................. 14

Kuba v. 1-A Agr. Ass’n,

387 F.3d 850 (9th Cir. 2004) .................................. 13

Makin v. Colo. Dep’t of Corr.,

183 F.3d 1205 (10th Cir. 1999) .............................. 17

McAllen Grace Brethren Church v. Salazar,

764 F.3d 465 (5th Cir. 2014) .................................. 12

iii

Mo. Broadcasters Ass’n v. Schmitt,

946 F.3d 453 (8th Cir. 2020) .................................. 14

Oklevueha Native Am. Church of Haw., Inc. v.

Lynch, 828 F.3d 1012 (9th Cir. 2016) .................... 17

Ramirez v. Collier,

142 S. Ct. 1264 (2022) ........................ 4, 9, 10, 11, 13

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) (per curiam) ........................... 11

Shakur v. Selsky,

391 F.3d 106 (2d Cir. 2004).................................... 14

South Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) .............................................. 11

Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007)..................................... 12

Tandon v. Newsom,

141 S. Ct. 1294 (2021) .............................................. 8

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) .............................................. 16

Turner v. Safley,

482 U.S. 78 (1987) .................................................. 14

United States v. Christie,

825 F.3d 1048 (9th Cir. 2016) ................................ 13

United States v. Wilgus,

638 F.3d 1274 (10th Cir. 2011) .................. 10, 14, 15

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005) .................................. 12

Washington v. Klem,

497 F.3d 272 (3d Cir. 2007).............................. 12, 13

iv

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) .................................. 19

Statutes

42 U.S.C. § 2000cc-1 .......................................... passim

42 U.S.C. § 2000cc-1(a) ........................................ 3, 4, 6

42 U.S.C. § 2000cc-2(a) ...................................... 3, 6, 16

Rules

Fed. R. Civ. P. 54(c) ................................................... 16

Other Authorities

Charles Wright et al., 10 Fed. Prac. & Proc. Civ.

(4th ed. 2022) .......................................................... 16

INTEREST OF AMICUS CURIAE 1

The Religious Freedom Institute (RFI) is

committed to achieving broad acceptance of religious

liberty as a fundamental human right, a source of

individual and social flourishing, the cornerstone of a

successful society, and a driver of national and

international security. RFI works to make religious

freedom a priority for government, civil society,

religious communities, businesses, and the general

public.

RFI envisions a world that respects religion as an

indispensable societal good and which promises

religious believers the freedom to live out their beliefs

fully and openly. RFI thus seeks to ensure that

governments do not inhibit the free exercise of religion

and that religious believers are entitled to the full

measure of protections afforded to religious practice

under laws like the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc-1.

Pursuant to Rule 37.6, amicus curiae affirms that no

counsel for a party authored this brief in whole or in part and

that no person other than amicus curiae, its members, and its

counsel made a monetary contribution to its preparation or

submission.

1

Counsel of record for all parties received notice of amicus

curiae’s intent to file this brief at least ten days prior to the due

date. All parties have consented in writing to the filing of this

brief. See Sup. Ct. R. 37.2(a).

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Lester Smith comes to this Court in unusual

circumstances: the district court found that the

Georgia Department of Corrections offered no

rationale that could justify its prohibition on beards

longer than half an inch under RLUIPA, and yet—

without disputing that finding—the Eleventh Circuit

ruled that the State may still enforce the half-inch

limitation against Smith. The Eleventh Circuit’s

denial of any relief from what has been shown to be an

unlawful burden on Smith’s religious exercise defies

the text of RLUIPA, contradicts this Court’s

precedents, conflicts with the approach of other

federal circuits, and contravenes basic principles of

judicial remedies.

As an initial matter, the Eleventh Circuit erred by

denying Smith the full accommodation that his

Muslim faith demands: the freedom to grow an

untrimmed beard, exactly as thirty-nine other prison

systems allow. As Smith demonstrates, that decision

cannot be reconciled with this Court’s opinion in Holt

v. Hobbs, 574 U.S. 352 (2015), or the law in many other

federal courts. See Pet. Parts I–II.

But even if it were assumed that Smith could be

denied the right to grow a full beard, there can be no

doubt that he is at least entitled to a lesser remedy. As

the district court found (and the Eleventh Circuit did

not dispute), the State “entirely failed to establish

safety, security, or manageability concerns regarding

three-inch beards” or shorter. Pet. App. 22 & n.10

3

(emphasis omitted). In the words of RLUIPA, the

State’s more severe half-inch limitation is not the

“least restrictive means” of furthering its interests—

and therefore Smith is entitled to “appropriate relief”

from that policy. 42 U.S.C. §§ 2000cc-1(a), 2000cc2(a). That is exactly what the district court gave

Smith, ordering that he be allowed to grow a beard at

least three inches long because the government could

justify nothing shorter. Pet. App. 9.

Yet, instead of following RLUIPA’s clear command,

the Eleventh Circuit vacated that order and denied

Smith all relief through an exception of its own

invention. According to the Eleventh Circuit, when

analyzing whether the government has shown that its

policy is the least restrictive way to further a

compelling interest, the only comparisons that matter

are to “[the plaintiff’s] proposed alternatives.” Pet.

App. 12a (quotation and emphasis omitted). Even if

the record demonstrates that there is a less restrictive

option available, the Eleventh Circuit said that a court

must ignore that alternative unless the plaintiff

specifically identified it himself. And because Smith’s

“final request for relief” was to fully vindicate his

religious needs by growing an untrimmed beard, the

Eleventh Circuit ruled that a court could not ask

whether any other remedy might be less restrictive

than the half-inch policy. Pet. App. 14 n.6. Thus, even

though Georgia cannot justify any prohibition of

beards shorter than three inches, it may continue to

enforce its overly restrictive half-inch limitation

against Smith.

4

This is not remotely how the least-restrictivemeans test works and it defies RLUIPA’s command

that relief be awarded “unless the government

demonstrates that imposition of the [challenged

policy]” is “the least restrictive means of furthering” a

compelling interest.

42 U.S.C. § 2000cc-1(a)

(emphasis added).

Even the Eleventh Circuit

admitted that its new limitation upon RLUIPA “is not

a rule that appears” in the statute, suggesting instead

that this Court had manufactured it. Pet. App. 13 n.4.

Of course, this Court has imposed no such

restriction. Its cases and the prevailing approaches in

other circuits confirm what the statute suggests: the

government bears the burden of refuting lessrestrictive alternatives, whether they be proposed by

the plaintiff or apparent on the face of the record. See

infra Parts I–II. Indeed, this Court flatly rejected the

Eleventh Circuit’s approach less than three months

ago, explaining that, “[o]nce a plaintiff has made out

his initial case under RLUIPA, it is the government

that must show its policy” is narrowly tailored—

including by “rebut[ting] . . . obvious alternatives.”

Ramirez v. Collier, 142 S. Ct. 1264, 1281 (2022).

Requiring the plaintiff to propose alternatives, as the

Eleventh Circuit did, “gets things backward.” Id.

The Eleventh Circuit’s rule not only gets leastrestrictive-means analysis backward, but it leads to

absurd and inequitable results for religious-exercise

claims. By barring courts from awarding partial relief

under RLUIPA, the Eleventh Circuit strips courts of

their inherent authority to craft appropriate remedies

5

in cases where a plaintiff might prove some but not all

of his claim. This denial of partial relief will uniquely

force RLUIPA plaintiffs to negotiate against

themselves. Plaintiffs like Smith will have to choose

between attempting to vindicate the full measure of

their religious needs or undercutting that effort by

naming all restrictions that would be less offensive

than the government’s current policy, even if those

alternatives would still significantly curtail religious

exercise. And this is especially absurd in cases, like

here, where the partial relief is simply a lesspermissive subset of the full relief the plaintiff seeks.

Must Smith specify every beard length he would

prefer to half an inch in the event that he cannot win

a fully untrimmed beard?

Lester Smith’s religious beliefs require him to grow

an untrimmed beard and he should be given that

right, like prisoners in so many other states. But if he

is unable to win full relief, RLUIPA does not prohibit

him from winning anything that falls short of total

victory simply because he tried. Nor does it allow the

government to enforce against him a policy that has

been found to violate RLUIPA’s demands merely

because a court concludes that he sought a remedy

that is too broad.

This Court should grant review to make clear that

it meant what it said in Holt: if “a less restrictive

means is available for the Government to achieve its

goals, the Government must use it,” whether it was the

plaintiff’s proposal or not. Holt, 574 U.S. at 365

(quotation omitted) (emphasis added).

6

ARGUMENT

I. The opinion below defies RLUIPA, which

demands relief when the State fails to justify

a substantial burden on religious exercise.

The Eleventh Circuit’s decision to let the prison

enforce a half-inch beard restriction that the prison

failed to justify cannot be squared with the most basic

text or design of RLUIPA.

As this Court has recognized, RLUIPA gives

“expansive protection for religious liberty.” Holt, 574

U.S. at 358. Under the statute, once a prisoner has

shown that a particular policy substantially burdens

his religious exercise, that policy may not be imposed

against him “unless the government demonstrates that

imposition of the [policy]” is both “in furtherance of a

compelling governmental interest” and “the least

restrictive means of furthering” that interest. 42

U.S.C. § 2000cc-1(a) (emphasis added).

If the

government fails to do so, the prisoner is entitled to

“appropriate relief.” Id. § 2000cc-2(a).

These basic principles lead to the straightforward

conclusion that Lester Smith is entitled to relief from

the half-inch beard policy here. The parties do not

dispute that the policy requiring Smith to keep his

beard no longer than half of an inch substantially

burdens his religious exercise. Pet. App. 10. The

district court found that the prison failed to show that

this policy is the least restrictive means to further its

interest in inmate health and security because such a

rationale could not sustain any ban on beards shorter

7

than three inches (the same length of hair allowed on

the top of a prisoner’s head). 2 See id. at 6–9, 22–23.

That should end any dispute about whether the prison

can, consistent with RLUIPA, continue to force Smith

to trim his beard to half of an inch—it cannot. Instead,

as the district court awarded, it means that Smith

must at least be allowed to grow a beard up to three

inches long. 3

The Eleventh Circuit denied Smith that relief by

erecting a new hurdle for RLUIPA claimants that the

Circuit acknowledged is nowhere to be found in the

statute itself. According to the Eleventh Circuit, the

government must adhere to a less-restrictive method

of achieving its interests only if the plaintiff explicitly

identified that alternative himself. Id. at 13–14. The

lower court acknowledged that RLUIPA contains no

such caveat but asserted that this Court carved one

into the statute in Holt v. Hobbs. Id. at 13 n.4. Under

this strained theory, the Eleventh Circuit concluded

that, because Smith asked for an untrimmed beard in

his “final request for relief,” he could never be awarded

2 Specifically, the prison argued that beards present hygiene

concerns, that they can be used to conceal contraband, that longer

beards can be grabbed during inmate fights, and that, in the

event of an escape, inmates with beards could obscure their

identities by shaving. See Pet. App. 6–9. The district court found

that these concerns were “underinclusive” and did not justify a

half-inch limitation for beards while the prison allowed hair up

to three-inches long on the head, which presents the same risks.

See id. For its part, the Eleventh Circuit did not reevaluate these

findings. See id. at 22 n.10.

3 Of course, as Smith demonstrates, he is entitled to more

than that. See generally Pet.

8

anything less. See id. at 14 n.6. Thus, the State has

been allowed to enforce a half-inch beard limitation

against Smith even though it has offered no rationale

that can justify that substantial burden on his freeexercise rights.

That is not how RLUIPA or least-restrictive-means

analysis works—and it is not what this Court said in

Holt or anywhere else. This Court has repeatedly

made clear that “the least-restrictive-means standard

is exceptionally demanding, and it requires the

government to show that it lacks other means of

achieving its desired goal without imposing a

substantial burden on the exercise of religion.” Holt,

574 U.S. at 364 (quotation & alterations omitted)

(emphasis added); accord Tandon v. Newsom, 141 S.

Ct. 1294, 1296–97 (2021). If “a less restrictive means

is available for the Government to achieve its goals,

the Government must use it.” Holt, 574 U.S. at 365

(quotation omitted) (emphasis added).

The

government may not adhere to a challenged policy

where there is “an alternative that achieves all of the

Government’s aims while providing greater respect for

religious liberty.” Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682, 688 (2014); see also Holt, 574 U.S. at 369

(“Courts must hold prisons to their statutory burden,

and they must not assume a plausible, less restrictive

alternative would be ineffective.” (quotation

9

omitted)). 4 As this Court observed in Holt, one

consequence of the government’s burden is that it

must refute any less-restrictive alternatives that are

proposed by the plaintiff. Holt, 574 U.S. at 367. But

Holt did not suggest that this is all the government

must do to show that its policy is the least-restrictive

means available. 5 And it certainly did not suggest

that a federal court must turn a blind eye to an obvious

less-restrictive alternative simply because the

plaintiff did not explicitly identify it himself or hoped

to win even more.

Indeed, less than three months ago, this Court

flatly rejected the Eleventh Circuit’s approach. In

Ramirez v. Collier, the Court held that Texas had

failed to show that prohibiting a pastor from speaking

or touching a prisoner in the execution chamber was

Hobby Lobby is a RFRA case but “RLUIPA . . . allows

prisoners to seek religious accommodations pursuant to the same

standard as set forth in RFRA.” Holt, 574 U.S. at 358 (quotation

omitted).

4

5 The lower court’s gross misreading of Holt rests on a single

phrase from the opinion, quoted in part and turned on its head.

Pet. App. 12. The supposedly critical sentence from Holt reads:

“In addition to its failure to prove that petitioner’s proposed

alternatives would not sufficiently serve its security interests, the

Department has not provided an adequate response to two

additional arguments that implicate the RLUIPA analysis.”

Holt, 574 U.S. at 367 (emphasis added). In other words, the

Court faulted the government for failing to refute less-restrictive

alternatives that the plaintiff had proposed, an obligation no one

disputes. But it does not follow that the government is free to

ignore all other apparent alternatives simply because the

plaintiff didn’t propose them.

10

the least-restrictive way to satisfy the State’s interest

in promoting security and preventing suffering during

an execution. 142 S. Ct. at 1281. The Court suggested

many less-restrictive alternatives to Texas’s total ban

and faulted the State for failing to refute them. Id. In

response, Texas argued exactly what the Eleventh

Circuit held here: that it was not required to address

these potential alternatives because it was the

prisoner’s “burden to identify any less restrictive

means.” Id. (quotation omitted). This Court rejected

that argument, explaining that it “gets things

backward.” Id. Rather, “[o]nce a plaintiff has made

out his initial case under RLUIPA, it is the

government that must show its policy” is narrowly

tailored—including

by

“rebut[ting] . . . obvious

alternatives.” Id. If for no other reason, review is

needed here to resolve this direct conflict with

Ramirez.

To be sure, a court need not attempt to conjure up

every conceivable way that a policy might be less

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

1274, 1289 (10th Cir. 2011) (requiring the inquiry to

be “tether[ed] . . . to the evidence in the record”). But

here the Eleventh Circuit did the opposite: it

demanded that the district court ignore a known and

obvious less-restrictive alternative merely because

Smith did not pursue a compromise position in his

litigation. No amount of imagination was needed to

consider the possibility of a three-inch beard. See Pet.

App. 30 (Martin, J., dissenting) (“[T]he parties were

aware that the relief of a three-inch beard was being

considered, presented testimony about it, and the

11

District Court was well within its authority to grant

it.”). That is simply a less-permissive subset of the full

relief that Smith sought, and three inches was tied

specifically to the length of hair already allowed on a

prisoner’s head. And Smith testified that, while not

fully satisfactory, a fist-length beard (which the

district court found to be approximately three inches)

would be religiously preferable to the current half-inch

limitation. Pet. App. 49, 70. The district court was

correct to require the government “to rebut these

obvious alternatives.” Ramirez, 142 S. Ct. at 1281.

Indeed, this Court has often faulted governments for

failing to refute less-restrictive options that were

apparent in the record. See, e.g., id.; Roman Catholic

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)

(per curiam) (listing possible “less restrictive rules

that could be adopted to minimize the risk” of COVID19 spread); South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 718 (2021) (statement of

Gorsuch, J.) (same); see also Hobby Lobby, 573 U.S. at

767 n.27 (Ginsburg, J., dissenting) (criticizing

majority opinion for awarding relief “on the ground

that [the government] could make an accommodation

never suggested in the parties’ presentations”).

The

Eleventh

Circuit’s

opinion

renders

meaningless RLUIPA’s demand that prisons conduct

their affairs in the way least restrictive to religious

exercise. This is not a case where there is any doubt

over whether a less restrictive approach might allow

the government to satisfy its interests. This is a case

where the record demonstrates and the court found

that such an alternative exists. RLUIPA dictates that

the government “must use” that alternative. Holt, 574

12

U.S. at 365. Review is needed to correct the Eleventh

Circuit’s drastic error.

II.

The Eleventh Circuit’s rule contradicts

the approach of other federal circuits.

The Eleventh Circuit’s dilution of least-restrictivemeans analysis not only contradicts a litany of this

Court’s precedents but also splits with the approach in

other federal circuits.

Several circuits have made clear that leastrestrictive means analysis requires the government to

“provide actual evidence, not just conjecture,

demonstrating that the [policy] in question is, in fact,

the least restrictive means.” McAllen Grace Brethren

Church v. Salazar, 764 F.3d 465, 476 (5th Cir. 2014)

(emphasis omitted). Indeed, many circuits require the

government to show that it actually considered and

rejected less-restrictive alternatives before settling on

the challenged policy. See, e.g., Spratt v. R.I. Dep’t of

Corr., 482 F.3d 33, 40–41 (1st Cir. 2007); Washington

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

Jabe, 679 F.3d 197, 203 (4th Cir. 2012); Warsoldier v.

Woodford, 418 F.3d 989, 999 (9th Cir. 2005). In the

words of the First Circuit, “to meet the least restrictive

means test, prison administrators generally ought to

explore at least some alternatives, and their rejection

should generally be accompanied by some measure of

explanation.” Spratt, 482 F.3d at 41 n.11; see also

Faver v. Clarke, 24 F.4th 954, 960 (4th Cir. 2022)

(“Because ‘least restrictive means’ is a relative term

that implies a comparison with other means, the

government must acknowledge and give some

13

consideration to less restrictive alternatives to

determine whether an alternative might be equally as

successful.” (quotation and emphasis omitted)).

Even before Holt and Ramirez, the Third Circuit

criticized a district court for doing exactly what the

Eleventh Circuit did here: shifting this burden to the

plaintiff to show “there were other less restrictive

means available” for a prison to satisfy its interests in

limiting prisoners’ storage of religious books in their

cells. Klem, 497 F.3d at 285. Although the prisoner

had “not suggested[] any way in which the Defendants

can better keep inmates’ cells safe,” the court faulted

the government for failing to meet its “burden to prove

that its policy is the least restrictive means” in the face

of other options the court suggested. Id. (quotation

omitted). The Ninth Circuit has similarly observed

that “figuring out that there are a number of obvious

alternatives is the first step in any ‘narrow tailoring’

analysis.” Kuba v. 1-A Agr. Ass’n, 387 F.3d 850, 862

n.12 (9th Cir. 2004). Thus, to satisfy the leastrestrictive-means test, “[a]t a minimum, the

government must address those alternatives of which

it has become aware during the course

of . . . litigation.” United States v. Christie, 825 F.3d

1048, 1061 (9th Cir. 2016) (emphasis added); see also

Faver, 24 F.4th at 960 (government must

“demonstrate that it considered and rejected the

14

alternatives brought to the government’s attention”

(quotation omitted)). 6

The Eleventh Circuit relied heavily on the fact that

some circuits have warned that least-restrictivemeans analysis is “not an open-ended invitation to the

judicial imagination,” Wilgus, 638 F.3d at 1289, and

that it “would be a herculean burden to require prison

administrators to refute every conceivable option,”

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

1996). But while these courts have cautioned that

there must be some limits on the inquiry, they have

not reduced the government’s burden to simply

“refut[ing] the alternative schemes offered by the

challenger,” as the Eleventh Circuit suggests. Wilgus,

638 F.3d at 1289. Rather, even under this approach,

the government must still “support its choice of

regulation”—and the court must “ensure that the

record supports the conclusion that the government’s

Guided by this Court, lower courts regularly consider

obvious alternatives even when conducting tailoring analyses

that are less demanding than the least-restrictive-means

standard. See, e.g., Mo. Broadcasters Ass’n v. Schmitt, 946 F.3d

453, 461–62 (8th Cir. 2020) (presence of “obvious lessburdensome alternatives to the restriction on commercial

speech . . . is certainly a relevant consideration in determining

whether the fit between ends and means is reasonable” (quoting

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417

n.13 (1993))); Discount Tobacco City & Lottery, Inc. v. United

States, 674 F.3d 509, 523 (6th Cir. 2012) (same); Kemp v. Liebel,

877 F.3d 346, 352 n.5 (7th Cir. 2017) (“[A]lthough the regulation

need not satisfy a least restrictive alternative test, the existence

of obvious alternatives may be evidence that the regulation is not

reasonable.” (quotation omitted) (citing Turner v. Safley, 482 U.S.

78, 89–90 (1987))); Shakur v. Selsky, 391 F.3d 106, 114 (2d Cir.

2004) (same).

6

15

chosen method of regulation is least restrictive.” Id.;

see also Hamilton, 74 F.3d at 1556 (“Although RFRA

places the burden of production and persuasion on the

prison officials [to show least-restrictive means], once

the government provides this evidence, the prisoner

must demonstrate what, if any, less restrictive means

remain unexplored.” (emphasis added)). Here, the

district court effectively found that Georgia failed this

test and that its proffered rationales did not actually

justify its choice to limit beards to anything shorter

than three inches. Where a less-restrictive alternative

is so clear in the record, even these cases do not hold

that a court should simply ignore it.

The Eleventh Circuit’s opposite rule barring courts

from considering apparent and obvious alternatives

supported in the record is out of step with these

prevailing approaches to least-restrictive-means

analysis. Review by this Court is needed to correct the

Eleventh Circuit’s errant rule and to make clear for all

courts the nature of the government’s obligation under

RLUIPA to justify the burden it has imposed.

III.

The Eleventh Circuit’s rule forces

religious believers to either accept an allor-nothing approach to RLUIPA relief or

negotiate against themselves.

The Eleventh Circuit’s mistaken approach results

in a bizarre remedial rule: a court may never award

partial relief on a RLUIPA claim unless the plaintiff

explicitly requests it. That rule disregards the text of

RLUIPA and basic principles of federal remedies. And

it forces religious claimants into the uniquely

precarious position of either seeking the full relief that

16

their religious exercise demands or undercutting their

claims by specifying every partial compromise they

might be willing to accept if complete relief cannot be

won.

Federal courts do not require plaintiffs in other

contexts to negotiate against themselves in this way,

and nothing in RLUIPA suggests it should be done

here. RLUIPA expressly entitles claimants to “obtain

appropriate relief against a government.” 42 U.S.C.

§ 2000cc-2(a). As this Court has explained, the phrase

“appropriate relief” is “open-ended” and broad. Tanzin

v. Tanvir, 141 S. Ct. 486, 491–92 (2020) (interpreting

“identical language” under RFRA). And federal courts

generally retain wide latitude to fashion remedies for

prevailing plaintiffs. Indeed, courts are expected to

“grant the relief to which each party is entitled, even

if the party has not demanded that relief in its

pleadings.” Fed. R. Civ. P. 54(c) (emphasis added). In

the normal course, “[t]he question is not whether

plaintiff has asked for the proper remedy but whether

plaintiff is entitled to any remedy.” Charles Wright et

al., 10 Fed. Prac. & Proc. Civ. § 2664 (4th ed. 2022);

see also Holt Civic Club v. City of Tuscaloosa, 439 U.S.

60, 65 (1978) (“[A] federal court should not dismiss a

meritorious constitutional claim because the

complaint seeks one remedy rather than another

plainly appropriate one.”).

District courts thus

routinely award relief that is less than the full amount

sought by the plaintiff.

Accordingly, federal courts do not expect plaintiffs

to undercut their demands by suggesting all the lesser

remedies that would be better than nothing. But now

the Eleventh Circuit requires exactly that of

17

individuals seeking to vindicate their fundamental

religious freedoms. If a prisoner is unsure whether he

will win full relief on his RLUIPA claim, the upshot of

the Eleventh Circuit’s opinion is a clear: suggest a

possible compromise or you may get nothing at all.

Religious claimants must essentially negotiate

against themselves by naming all restrictions that

would be less odious than the government’s current

policy, even if those restrictions would still

substantially curtail their religious exercise.

Requiring religious claimants to come forward

with compromise options will make it significantly

more difficult for them to vindicate the full measure of

their rights. Such suggestions of partial relief could

easily be seen to as a sign that a fuller remedy is

unnecessary, harming their chances of winning

complete relief from a court and diminishing their

bargaining power in settlement. This is especially

troublesome to free-exercise claims, where religious

practices may not be well understood by a court.

Making a believer suggest ways that his religious

exercise might be partially improved undermines his

ability to convince a court of what his religion fully

demands. See, e.g., Oklevueha Native Am. Church of

Haw., Inc. v. Lynch, 828 F.3d 1012, 1017 (9th Cir.

2016) (“[Plaintiffs] have produced no evidence that

denying them cannabis [substantially burdens their

religious exercise], since they have stated . . . that

many other substances . . . are capable of serving the

exact same religious function . . . .”); Makin v. Colo.

Dep’t of Corr., 183 F.3d 1205, 1213 (10th Cir. 1999)

(“[T]he fact that a spiritual exercise was only

diminished rather than denied may factor into the

18

strength of the penological interests necessary to

justify the infringement.”); Green v. Tudor, 685 F.

Supp. 2d 678, 703 (W.D. Mich. 2010) (prison policies

did not substantially burden religious exercise

because, among other things, “Plaintiff possesses

alternative means of practicing his Muslim faith”). 7 In

no normal case would a court require the plaintiff to

hamstring his own claim in this way.

The Eleventh Circuit’s approach yields especially

strange results in cases like this one, where the partial

accommodation is simply a less permissive subset of

the full relief the plaintiff seeks. Smith’s religious

exercise demands that he never trim his beard, so he

has sought permission to grow a beard without

limitation on length. Smith did not ask for only a

three-inch beard because that would not fulfill his

religious needs. But he did testify that such a remedy

would at least be less burdensome to his religious

practices than a half-inch beard. See Pet. App. 49, 70.

Yet, in the Eleventh Circuit’s view, he is stuck winning

all or nothing because he did not delineate every beard

length he would prefer to half an inch. How specific

must he be? And what is gained by doing so? If it is

offensive to be forced to cut one’s beard, surely it is no

surprise to learn that is less offensive to be forced to

7 This may be a problem especially for individuals with

minority religious beliefs, where courts may be less aware and

more skeptical of what actions those beliefs demand.

19

cut it less. 8 If a prisoner seeks permission to pray in a

particular way every day, must he specify that,

barring full relief, he would prefer praying twice a

week to none? And what in RLUIPA imposes that

demand?

These questions are left unanswered by the

Eleventh Circuit because there is no answer. Smith’s

religious exercise demands more than he was awarded

by the district court, and he continues in his effort to

vindicate those full demands. But if Smith does not

fully succeed in that effort, he is surely entitled to

whatever partial relief that a court finds is due. The

Eleventh Circuit’s denial of that relief, as a matter of

law, puts religious claimants in a uniquely precarious

position and will severely impair courts’ ability to

remedy burdens on religious freedom in the way that

RLUIPA and RFRA demand.

CONCLUSION

For the foregoing reasons, amicus curiae urges the

Court to grant certiorari and reverse.

8 Smith explained that the offense to his religious beliefs is

reduced not simply because he will be forced to cut his beard

fewer times as it grows longer, but indeed because a fist-length

beard helps satisfy his religious exercise in a way that shorter

beards do not. Pet. App. 49, 70. In any event, this is not a case

where there is any doubt that the partial remedy would provide

at least some improvement to the plaintiff’s religious exercise.

Nothing in RLUIPA prevents a court from awarding that partial

relief, even if it finds that the full measure of relief requested is

unjustified. Cf. Yellowbear v. Lampert, 741 F.3d 48, 64 (10th Cir.

2014) (Gorsuch, J.) (discussing how to address “questions of

degree” in RLUIPA analysis).

20

Respectfully submitted,

JOHN A. MEISER

Counsel of Record

NICOLE STELLE GARNETT

RICHARD W. GARNETT IV

FRANCESCA GENOVA MATOZZO

NOTRE DAME LAW SCHOOL

RELIGIOUS LIBERTY CLINIC

1338 Biolchini Hall of Law

Notre Dame, IN 46556

(574) 631-3880

jmeiser@nd.edu

Counsel for Amicus Curiae

JUNE 6, 2022