Respondents Brief — Richard R. Watkinson, Petitioner v. Alaska Department of Corrections, et al.

Supreme Court briefOct 24, 2022

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No. 22-108

In the

Supreme Court of the United States

RICHARD R. WATKINSON,

Petitioner,

ALASKA DEPARTMENT OF CORRECTIONS, ET AL.,

Respondents.

On Petition for Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

BRIEF IN OPPOSITION

TREG TAYLOR

Attorney General

State of Alaska

DAVID A. WILKINSON

Assistant Attorney General

Counsel of Record

1031 W. 4th Ave., Ste 200

Anchorage, AK 99501

(907) 269-5100

david.wilkinson@alaska.gov

OCTOBER 24, 2022

Counsel for Respondents

QUESTIONS PRESENTED

Petitioner Richard R. Watkinson is serving a

lengthy sentence for two convictions of first-degree

murder. In prison, he practices the Asatru religion and

worships at bonfires while drinking juice and honey.

Watkinson challenged the Alaska Department of Corrections’ refusal to purchase firewood for his faith

group with an institution’s prisoner welfare fund (an

account limited to funding charitable, recreational,

and educational programs). Watkinson also challenged the Department’s refusal to allow him and his

faith-group peers to create a virtual account for their

benefit within the prisoner welfare fund and then use

the fund to make discounted orders of juice and honey.

The questions presented are:

1. For a prisoner to establish that a prison violated his rights under the Free Exercise

Clause, must he show that the prison substantially burdened his religious exercise?

2. Under the Religious Land Use and Institutionalized Persons Act, did a prison substantially burden a prisoner’s religious exercise

without a compelling governmental interest

when it maintained a fund for charitable,

recreational, and educational purposes and

refused to use the fund to subsidize the prisoner’s religious purchases?

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iii

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

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

STATEMENT ............................................................. 1

REASONS FOR DENYING THE PETITION ......... 12

Watkinson’s case is a poor vehicle for

analyzing the substantial burden issue ........... 14

II. The law governing prisoner free exercise

claims does not require this Court’s review ..... 17

III. The Ninth Circuit correctly affirmed the

district court’s factual findings and

application of RLUIPA ...................................... 27

CONCLUSION ......................................................... 32

iii

TABLE OF AUTHORITIES

Cases

Abdulhaseeb v. Calbone,

600 F.3d 1301 (10th Cir. 2010)........................ 25, 29

Anspach ex rel. Anspach v. City of Philadelphia,

Dep’t of Pub. Health,

503 F.3d 256 (3d Cir. 2007) ................................... 20

Block v. Rutherford,

468 U.S. 576 (1984)................................................ 27

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v.

Grumet, 512 U.S. 687 (1994) ................................. 31

Boles v. Neet,

486 F.3d 1177 (10th Cir. 2007).............................. 19

Butts v. Martin,

877 F.3d 571 (5th Cir. 2017) ................................. 21

Carson v. Makin,

__ U.S. __, 142 S. Ct. 1987 (2022) ................... 23, 24

Cutter v. Wilkinson,

544 U.S. 709 (2005)........................ 10, 12, 28, 29, 30

DeHart v. Horn,

227 F.3d 47 (3d Cir. 2000) ..................................... 20

DeMarco v. Davis,

914 F.3d 383 (5th Cir. 2019) ................................. 21

Dorman v. Aronofsky,

36 F.4th 1306 (11th Cir. 2022) ........................ 19, 20

Espinoza v. Montana Dep’t of Revenue,

__ U.S. __, 140 S. Ct. 2246 (2020) ................... 23, 24

Ford v. McGinnis,

352 F.3d 582 (2d Cir. 2003) ................................... 22

Friedman v. Arizona,

912 F.2d 328 (9th Cir. 1990) ................................... 9

Graham v. C.I.R.,

822 F.2d 844 (9th Cir. 1987) ................................. 23

Green Haven Prison Preparative Mtg. of Religious

Soc’y of Friends v. N.Y. State Dep’t of Corr. &

Cmty. Supervision, 16 F.4th 67 (2d Cir. 2021) ..... 18

Hernandez v. C.I.R.,

490 U.S. 680 (1989).................................... 19, 21, 23

Hobbie v. Unemp’t App. Comm’n of Fla.,

480 U.S. 136 (1987)................................................ 23

Holt v. Hobbs,

574 U.S. 352 (2015).......................................... 28, 30

Johnson v. California,

543 U.S. 499 (2005)................................................ 26

Jones v. Williams,

791 F.3d 1023 (9th Cir. 2015) ............. 11, 19, 23, 25

Kay v. Bemis,

500 F.3d 1214 (10th Cir. 2007).............................. 19

Koger v. Mohr,

964 F.3d 532 (6th Cir. 2020) ................................. 18

Levitan v. Ashcroft,

281 F.3d 1313 (D.C. Cir. 2002) ........................ 18, 22

Mack v. Warden Loretto FCI,

839 F.3d 286 (3d Cir. 2016) ................................... 20

Mbonyunkiza v. Beasley,

956 F.3d 1048 (8th Cir. 2020) ............................... 19

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987)........................................ passim

Price v. Johnson,

334 U.S. 266 (1948)................................................ 14

Randall v. McLeod,

68 F.3d 470, 1995 WL 581973 (5th Cir. 1995)

(per curiam) (unpublished) .................................... 21

Robinson v. Superintendent Houtzdale SCI,

693 F. App’x 111 (3d Cir. 2017) ............................. 21

Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819 (1995) .............................. 31, 32

Salahuddin v. Goord,

467 F.3d 263 (2d Cir. 2006), cert. denied

142 S. Ct. 2676 (2022)............................................ 18

Sherbert v. Verner,

374 U.S. 398 (1963).................................... 22, 23, 25

Thomas v. Review Bd.,

450 U.S. 707 (1981).................................... 23, 24, 25

Thompson v. Ferguson,

849 F. App’x 33 (3d Cir. 2021) ............................... 21

Thompson v. Holm,

809 F.3d 376 (7th Cir. 2016) ................................. 19

Thornburgh v. Abbott,

490 U.S. 401 (1989)................................................ 11

Trinity Lutheran Church of Colombia v. Comer,

__ U.S. __, 137 S. Ct. 2012 (2017) ............. 23, 24, 26

Turner v. Safley,

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

Van Wyhe v. Reisch,

581 F.3d 639 (8th Cir. 2009) ................................. 27

Walker v. Beard,

789 F.3d 1125 (9th Cir. 2015) ......................... 12, 32

Williams v. Morton,

343 F.3d 212 (3d Cir. 2003) ................................... 20

Wright v. Lassiter,

921 F.3d 413 (4th Cir. 2019) ................................. 18

vii

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 2000bb-1(a) ............................................. 20

42 U.S.C. § 2000cc-1(a) ........................................ 19, 27

42 U.S.C. § 2000cc-3(c) ........................................ 10, 28

Rules

Fifth Circuit Rule 47.5.3 ........................................... 21

Supreme Court Rule 10 ............................................. 27

OPINIONS BELOW

The memorandum disposition of the court of appeals (Pet. App. A1–A5) is unreported. The decision of

the district court (id. at A6–A37) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 2, 2022. Pet. App. A1. The petition for a

writ of certiorari was filed on August 1, 2022. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATEMENT

1. The Alaska Department of Corrections (the

Department) maintains a prisoner welfare fund at

each of its prisons. See C.A. E.R. 187. Under Department policy, a prisoner welfare fund can be used, at

the discretion of a prison superintendent, to make

“loans or grants to prisoners or prisoner organizations

for activities not funded by general appropriations.”

Ibid. The fund is the sole source of money for prisoner

organizations such as cultural clubs, study or self-help

groups, and inmate counsels. Id. at 216–17. It pays for

“special events, recreation equipment, special programs and appliances purchased for prisoner use

and/or benefit.” Id. at 216. Prisoner welfare fund expenditures must be for “charitable, recreational and

educational purposes.” Id. at 188.

Typical prisoner welfare fund purchases might

include gym equipment or special food for events like

talent shows or Juneteenth celebrations. See C.A. E.R.

78, 168. The Goose Creek Correctional Center in

Wasilla, Alaska uses its prisoner welfare fund to buy,

among other things, firewood for a sweat lodge operated by its Alaska Native cultural group. Id. at 112,

139–40 ¶15, 151 ¶15.

A prisoner welfare fund’s revenue comes from

surcharges at the prison commissary but can also

come from special fundraising, donations, and earned

interest. C.A. E.R. 188, 218. Prisoners cannot dedicate

donations to the benefit of specific prisoners or prisoner groups. Id. at 99–100. And the Department prohibits its institutions from setting up any pooled, virtual accounts within a prisoner welfare fund—that is,

sub-accounts held for the benefit of particular prisoners or groups. Ibid. Prisoners can submit proposals for

prisoner welfare fund expenditures, but the superintendent has no obligation to approve them. See id. at

101, 218.

Separate from its prisoner welfare fund policies,

the Department has a faith and chaplaincy policy “to

allow prisoners to participate in faith-based programs

and practices consistent with facility security and

available resources.” C.A. E.R. 220. Under that policy,

prisoners designate their faith group and are then “allowed to practice that faith consistent with guidelines

provided by the Chaplaincy Coordinator, including

services, property, special events and special dietary

needs for that faith group.” Id. at 221.

Prisoners are allowed to possess personal religious property. C.A. E.R. 223–24. And the institutions

will hold and secure faith group property. Id. at 224.

Faith group property can be “donated for use in the

institution by an approved faith group organization.”

Ibid. Prisoners cannot donate faith group property

without superintendent approval. Ibid. Under its faith

and chaplaincy policy, the Department “is not responsible for the procurement of any faith group property

or equipment.” Ibid.

2. Petitioner Richard Watkinson was sentenced

to prison for 100 years after he murdered his father

and stepmother. Watkinson v. State, 980 P.2d 469, 470

(Alaska Ct. App. 1999). In 2015, he was incarcerated

at the Goose Creek Correctional Center in Wasilla,

Alaska. 1 At that time, Goose Creek violated the Department’s statewide policies by allowing Watkinson

and other prisoners practicing the Asatru religion to

have special access to the institution’s prisoner welfare fund.

Asatru is a polytheistic religion in which adherents worship ancient Norse deities such as Thor, Odin,

and Freya. C.A. E.R. 139 ¶6, 150 ¶6. At Goose Creek,

Asatru prisoners have organized a congregation called

the Blodtryggr Kindred. Id. at 139 ¶4, 149–50 ¶4.

They hold weekly ceremonies known as “blots” where

1 Watkinson has since been transferred to Spring Creek Correc-

tional Center in Seward, Alaska. C.A. E.R. 79–80; VINE, Richard

Watkinson

Custody

Record,

https://vinelink.vineapps.com/person-detail/offender/1330205;tabIndexToSelect=0

(last visited Oct. 19, 2022). Watkinson’s transfer to Spring Creek

mooted his claims for declaratory and injunctive relief against

Goose Creek employees Earl Houser and Scott Dial, but not his

claims challenging statewide policies against the Department

and its chaplaincy coordinator James Duncan.

they build a bonfire and drink juice and honey. Id. at

69, 73–74. Between August 2015 and May 2017, Goose

Creek allowed Asatru inmates to donate money to the

institution’s prisoner welfare fund to be held in a virtual account. The prisoners could then use the prisoner welfare fund to buy juice and honey in bulk. Id.

at 141 ¶25, 152 ¶25. In response to a grievance from

Watkinson, Goose Creek also began using its prisoner

welfare fund to buy firewood for Asatru blots. See id.

at 140 ¶19, 152 ¶19, 205.

In 2017, Goose Creek stopped granting the Asatru prisoners special access to the prisoner welfare

fund. See C.A. E.R. 141 ¶28, 153 ¶28, 208, 215. Goose

Creek no longer allowed the Asatru prisoners to pool

their money in a virtual balance and stopped using the

fund to buy them firewood. Id. at 208, 215. However,

Goose Creek erected a woodshed in the visitor parking

area to accept donated firewood, and it allowed the

prisoners to buy juice and honey from the commissary.

Id. at 206, 215. In a letter to Watkinson, the Department explained, “It is not a function of the Prisoner

Welfare Fund to finance religious faith groups but to

benefit all prisoners with respect to special events, recreation equipment, and special programs and appliances.” Id. at 227.

3. Watkinson sued the Department and several

of its employees. He sought a declaration that (1) the

defendants violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), the First Amendment, and the Fourteenth Amendment by depriving

“him of the right to compete for [prisoner welfare]

funds to purchase firewood and food/beverage products”; (2) that Department policies “are illegal insofar

as they categorically exclude religious organizations

from being eligible to obtain [prisoner welfare] funds”;

and (3) that “Watkinson and other religious practitioners can individually or collectively donate funds to reimburse the [prisoner welfare fund] for purchases that

would not otherwise have sufficiently broad appeal to

merit [prisoner welfare fund] purchase without inmate reimbursement, subject to the Superintendent’s

ability to deny particular requests for religiously neutral reasons.” C.A. E.R. 132. Watkinson further asked

the court to order the defendants to “cease discrimination against religion in general and Asatru in particular with respect to the [prisoner welfare fund]” and to

“develop criteria independent of religion for evaluating [prisoner welfare fund] requests.” Id. at 133.

At a one-day bench trial, Watkinson testified

that the Goose Creek Asatru group would burn about

$1000 worth of firewood each year. C.A. E.R. 71. When

Goose Creek stopped buying them firewood, Watkinson and the others relied on donations or purchased

wood with their own money. Id. at 73. At times, the

group lacked wood for a blot while they waited to collectively earn enough money or for family members to

donate. Ibid. Watkinson found it “uneconomical” to

purchase juice and honey through the prison commissary rather than “bringing out gallons” via the prisoner welfare fund. Id. at 76. Watkinson asserted there

were times when the Asatru group was “waiting on”

family for donations and “didn’t have the financial accommodations to be able to buy enough juice for [their]

service.” Ibid.

A Department administrator testified that

Goose Creek was “in direct violation” of state policy

when it gave the Asatru prisoners special access to the

prisoner welfare fund. C.A. E.R. 88–89. As for allowing

the Asatru prisoners to maintain a virtual balance in

the institution’s fund, the administrator testified that

the Department had “a significant concern about possible fraud and other crimes being committed in using

other accounts that people can trade back and forth,

people paying off debt, strong-arming, and that can go

on under the guise of a club, organization, or religious

practice.” 2 Id. at 97. Except for a long-standing greenhouse and plant sale project at a women’s prison,

whose financial arrangement with a prisoner welfare

fund had been grandfathered in, no other Department

2 Watkinson asserts that the administrator testified, with respect

to virtual balances, that he was “unaware of any security problems that did or could arise in that process.” Pet. 8. This is incorrect. That testimony was with respect to using the fund’s money

to purchase firewood, not letting inmates pool money:

Q: But as far as you know there weren’t any, say, security

problems that necessitated the prohibition on purchasing

firewood for Asatru from the Prisoner Welfare Fund,

right?

A: I’m unaware of any security problems that did or could

arise in that process.

Q: Because they’re still allowed to have the firewood, just

from a different source?

A: Right. C.A. E.R. 180.

With respect to pooling funds, the Administrator testified at his

deposition that he “would not deem it a security issue,” but conceded he is “a layman when it comes to security” and “you should

talk to someone from security.” Id. at 183. At trial he testified

that there was, in fact, “a significant concern.” Id. at 97.

prisoner organization maintains a virtual balance in a

prisoner welfare fund. Id. at 97–98. The Alaska Department of Administration and banking institutions

have otherwise prohibited virtual balances. Id. at 90,

97.

The administrator also explained that, in his

understanding, it would not be legally permissible to

use a prisoner welfare fund to purchase faith group

property. C.A. E.R. 91. Were the Department to allow

that, however, it would “have to treat everybody equitably and not . . . favor one religious group over another.” Ibid. To do so would be “extremely hard” and

“not feasibly administratively possible.” Id. at 89, 91.

In the end, if the prisoner welfare fund were used for

religious purchases, the administrator testified it

“would wind up being a hundred percent sucked into

that because that’s where the push would be.” Id. at

92. The district court found the administrator’s testimony credible. Pet. App. A15–A16.

Following trial, the district court held that the

Department did not violate Watkinson’s rights under

the First Amendment’s Free Exercise Clause. Pet.

App. A26–A32. At the outset, Watkinson failed to

show that his religious practice was burdened. Id. at

A27. While the Department’s “failure to administer

the [prisoner welfare fund] in a way that subsidizes

firewood, juice, and honey may be inconvenient to

Mr. Watkinson, it does not amount to a prohibition on

his ability to practice his religion or a punishment for

doing so.” Ibid. But even if Watkinson had shown a

burden on his religious exercise, the district court held

the Department’s policies were still reasonably related

to legitimate penological interests. Id. at A28 (citing

Turner v. Safley, 482 U.S. 78 (1987)). The district court

walked through the four factors identified in Turner

as “relevant in determining the reasonableness of the

regulation at issue.” 482 U.S. at 89–90; 3 Pet. App.

A28–A32.

First, refusing to use the prisoner welfare fund

for Watkinson’s religious activities was rationally related to the Department’s legitimate interest in fairly

and equitably administering the fund. Pet. App. A28.

Using the fund for religious activities “would effectively end the use of the fund for its intended purpose:

funding activities for all inmates to enjoy regardless of

religious affiliation.” Id. at A28–A29.

Second, the court found that Watkinson still

had alternative means of practicing the exact same religious right he asserted was burdened. Pet. App. A29.

He still could hold blots and obtain firewood, juice, and

honey. Ibid.

Third, the court found that using the prisoner

welfare fund to subsidize Watkinson’s religious purchases would negatively impact the prison and other

3 The Turner factors include the “valid, rational connection be-

tween the prison regulation and the legitimate governmental interest put forward to justify it”; “whether there are alternative

means of exercising the right that remain open to prison inmates”; “the impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on the allocation of prison resources generally”; and “the absence of ready alternatives” or “the existence of obvious, easy alternatives.” 482

U.S. at 89–90 (cleaned up).

inmates. Pet. App. A29–A30. The court noted that

Watkinson sought “an exemption from [the Department’s] policy that it is not responsible for the procurement of faith group property.” Id. at A30. But giving

him that exemption “would be unfair to other religious

groups” and to “the general inmate population that

benefits from the secular activities the fund is intended to sponsor.” Ibid. The court also noted that allowing Watkinson and the other Asatru prisoners to

pool money in the fund raises a possibility of “fraud

and other criminal activity” and could result in “resentment and unrest” or “in the elimination of the

[prisoner welfare fund] altogether.” Ibid. 4

And fourth, the district court analyzed whether

there were “obvious, easy alternatives” that the Department could adopt to accommodate Watkinson.

Pet. App. A31–A32. The court found it would be “administratively burdensome, and in some ways impossible, to fashion an alternative to [the Department’s]

religious property procurement policy that still

achieves its interests with regard to administering the

[prisoner welfare fund].” Id. at A32. The district court

4 Watkinson states that “the district court recognized that the

DOC had ‘produced no evidence of actual fraud that has occurred’

in connection with virtual accounts.” Pet. 7–8. But he leaves off

the first half of the court’s sentence: “It is of no consequence that

Defendants produced no evidence of actual fraud that has occurred.” Pet. App. A30 (emphasis added) (citing Friedman v. Arizona, 912 F.2d 328, 332–33 (9th Cir. 1990) (explaining that under Turner prisons may anticipate security problems and adopt

solutions)).

held the Department did not violate Watkinson’s free

exercise rights. Ibid.

In addition to rejecting the free exercise claim,

the district court held that the Department did not violate Watkinson’s rights under RLUIPA. Pet. App.

A20–A26. RLUIPA “explicitly denies creating a right

for religious organizations to receive funding from the

government.” Id. at A20–A21 (citing 42 U.S.C.

§ 2000cc-3(c)). The Act was “[d]irected at obstructions

institutional arrangements place on religious observances”; it “does not require a State to pay for an inmate’s devotional accessories.” Id. at A21 (quoting

Cutter v. Wilkinson, 544 U.S. 709, 720 n.8 (2005) (emphasis added)). Declining to subsidize the Asatru

group’s religious purchases placed no substantial burden on Watkinson’s ability to practice his religion. Id.

at A20–A22.

And even if Watkinson had shown he suffered a

substantial burden, the district court held the Department’s policies were “the least restrictive means of furthering compelling government interests.” Pet. App.

A23–A26. These included the Department’s interests

in staving off the threat to institutional security posed

by allowing prisoners to pool money in a virtual account or by stoking interreligious strife with favoritism to select religious groups. Id. at A25. The court

also found compelling the Department’s interest in

“ensuring it does not violate the Constitution’s establishment clause by institutionally supporting religious

activities of the Asatru faith group.” Id. at A24. The

court held that prohibiting the Asatru group from having special access to the prisoner welfare fund was the

least restrictive means of furthering the Department’s

compelling interests. Id. at A26.

Watkinson appealed to the Ninth Circuit. In an

unpublished memorandum disposition, the Ninth Circuit affirmed. Pet. App. A1–A5.

Addressing the RLUIPA claim first, the Ninth

Circuit held that the Department did not substantially

burden Watkinson’s religious exercise in violation of

the Act. Pet. App. A3. It explained that the Department’s policies “do not deny [Watkinson] access to any

item necessary for his religious ceremonies, and [Watkinson] may procure all necessary items without access to the [prisoner welfare fund].” Ibid.

The Ninth Circuit likewise rejected Watkinson’s free exercise claim. Pet. App. A3–A4. The court

explained that “[a]s with the RLUIPA, a prisoner asserting a free exercise claim must show that the government policy has substantially burdened his practice of religion.” Id. at A4 (citing Jones v. Williams, 791

F.3d 1023, 1031 (9th Cir. 2015)). The Ninth Circuit reiterated that Watkinson’s religious exercise had not

been substantially burdened, but even if it had been,

the Department’s policies “were reasonably related to

legitimate penological interests.” Ibid. These interests

included “avoiding constitutional issues that might

arise from funding one specific religious group, maintaining prison security, avoiding favoritism, and ensuring that [prisoner welfare] funds support charitable, recreational, and educational opportunities available to the entire prison population.” Ibid. (citing

Thornburgh v. Abbott, 490 U.S. 401, 415 (1989);

Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015)).

The Ninth Circuit held there was no free exercise violation. Ibid.

Watkinson’s petition to this Court followed.

REASONS FOR DENYING THE PETITION

No law requires a State to directly subsidize a

prisoner’s worship. Yet that is what Watkinson

sought. The Department properly denied him special

access to the prisoner welfare fund. It did so because

the Department reserves prisoner welfare funds for

“charitable, recreational and educational purposes”;

the Department does not finance faith group property;

and the Department prohibits prisoners from creating

virtual, pooled accounts within the fund. C.A. E.R.

100, 188, 224, 227. Refusing to use the prisoner welfare fund to subsidize Watkinson’s worship placed no

“obstructions” on his religious exercise. Cutter, 544

U.S. at 720 n.8. To the contrary, the Department let

Watkinson hold blots, allowed him to purchase juice

and honey through the commissary, and facilitated his

acquisition of firewood by purchase or donation. C.A.

E.R. 73, 76, 206, 215. The lower courts were correct—

the Department did not violate Watkinson’s right to

freely exercise his religion.

Certiorari should be denied for three reasons:

1. Watkinson’s petition is a poor vehicle for addressing the threshold showing for a prisoner free exercise claim because the issue is simply not dispositive

of his case. Both lower courts held that even if he had

shown a substantial burden (and thus by extension,

even if no such showing was required), his constitutional claim still failed under the Turner reasonableness analysis. Moreover, because his identical

RLUIPA claim also failed under that statute’s more

protective standard, his parallel free exercise claim

necessarily could not succeed under the less protective

constitutional test. No matter the result of his free exercise arguments, Watkinson’s case—and his religious

exercise—will remain unaffected.

2. Even if this petition were an appropriate vehicle, there is no need for this Court to review the constitutional free exercise standards. First, the courts of

appeals are not deeply divided. The overwhelming majority of circuits that have addressed the issue require

a substantial burden, with one potentially unclear circuit and one outlier. And requiring a burden on religious exercise as a prerequisite is rooted in this

Court’s precedent. Second, the alleged circuit split is

disconnected from Watkinson’s core argument that recent government benefits precedent should be imported into the prison context. In fact, no courts of appeals—including the Ninth Circuit in this case—appear to have yet addressed that question. And third,

stepping beyond the threshold inquiry, Watkinson

identifies no persuasive reason for this Court to wholly

abandon Turner’s reasonableness analysis, which has

been the longstanding prisoner free exercise standard

since O’Lone v. Estate of Shabazz, 482 U.S. 342, 349

(1987).

3. The Ninth Circuit’s nonprecedential, unpublished application of RLUIPA to the facts of Watkinson’s case likewise presents no issue worthy of this

Court’s review.

This Court should deny Watkinson’s petition for

certiorari.

Watkinson’s case is a poor vehicle for analyzing the substantial burden issue.

Prisoners retain the right to freely exercise

their religions. But not at the expense of an institution’s valid penological objectives. Incarceration

“brings about the necessary withdrawal or limitation

of many privileges and rights, a retraction justified by

the considerations underlying our penal system.”

O’Lone, 482 U.S. at 348 (quoting Price v. Johnson, 334

U.S. 266, 285 (1948)). “To ensure that courts afford appropriate deference to prison officials,” this Court has

“determined that prison regulations alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitutional rights.” Id. at 349. A prison regulation that

“impinges on inmates’ constitutional rights . . . is valid

if it is reasonably related to legitimate penological interests.” Ibid. (quoting Turner, 482 U.S. at 89).

When they rejected Watkinson’s free exercise

arguments, the Ninth Circuit and the district court

applied the analysis set out in O’Lone and Turner. Pet.

App. A4, A28–A32. Watkinson concedes that across

the country “the lower courts all believe” this is the

proper analysis. Pet. 12. He takes issue, however, with

the Ninth Circuit’s requirement that to sustain a free

exercise claim he must first show that the Department

has substantially burdened his religious practices. Id.

at 12–14. But the question is not dispositive of his

case, making this a poor vehicle for discerning

whether the substantial burden test is the appropriate

threshold inquiry. In the end, substantial burden test

or not, Watkinson’s free exercise claim fails.

Both the Ninth Circuit and the district court

held that even if Watkinson had shown a substantial

burden on his religious exercise, his claim was still futile because the Department’s policies were reasonably related to legitimate penological interests. Pet.

App. A4, A28–A32. As the Ninth Circuit explained,

these interests included “avoiding constitutional issues that might arise from funding one specific religious group, maintaining prison security, avoiding favoritism, and ensuring that [prisoner welfare] funds

support charitable, recreational, and educational opportunities available to the entire prison population.”

Id. at A4. Thus, even if this Court were to agree with

Watkinson that the “substantial-burden prerequisite

is wrong” (Pet. 14), he would be entitled to no remedy.

His free exercise claim fails the Turner reasonableness

analysis.

If this Court went further and accepted Watkinson’s invitation to abandon Turner and substitute it

with strict scrutiny (Pet. 14–15), Watkinson would

still be entitled to no relief. In rejecting Watkinson’s

RLUIPA claim, the district court held that the Department satisfied RLUIPA’s statutorily mandated strict

scrutiny test because its policies are “the least restrictive means of furthering compelling governmental interests.” Pet. App. A23–A26. The same would be true

for a parallel constitutional claim. The district court

explained that the Department had a compelling interest in mitigating the threats to institutional security posed by allowing prisoners to pool money in a virtual account and by showing favoritism to a religious

group. Id. at A25. The court also held that the Department had a compelling interest in avoiding the constitutional issues that might flow from institutionally

supporting a single faith group’s worship activities. Id.

at A24. And given that it would be “effectively impossible” to maintain a virtual balance in the prisoner

welfare fund and that “Watkinson proposed no alternatives” to using the fund to purchase his religious

items, the Department’s practices were, the court

held, “the least restrictive means of furthering their

compelling governmental interests.” Id. at A26. The

district court was correct, and Watkinson’s claim fails

even under strict scrutiny.

Finally, if Watkinson were to succeed on all of

his arguments, there is no assurance that his religious

exercise would be tangibly affected. Below, he sought

the ability to “compete for [prisoner welfare] funds to

purchase firewood and food/beverage products” for his

religious worship and to pool money in the prisoner

welfare fund “subject to the Superintendent’s ability

to deny particular requests for religiously neutral reasons.” C.A. E.R. 132. Any individual disbursement

from the prisoner welfare fund would be within a

prison superintendent’s discretion. Id. at 187, 218.

Watkinson cannot contest that a superintendent could

still deny his purchase request as not in line with the

prisoner welfare fund’s charitable, recreational, and

educational purposes. See id. at 188. Moreover, the

Department could satisfy Watkinson’s claim by doing

away with its prisoner welfare funds entirely. In either event, Watkinson’s demands would be met but his

religious exercise would remain unchanged.

This Court should decline to grant certiorari to

take up issues that will change neither the outcome of

the case nor Watkinson’s religious exercise.

II.

The law governing prisoner free exercise

claims does not require this Court’s review.

Watkinson asserts that the circuits are “deeply

divided” over whether a prisoner’s religious exercise

must be substantially burdened for the prisoner to

sustain a constitutional free exercise claim. 5 Pet. 12.

He urges the Court not only to do away with a threshold substantial burden inquiry, but to wholly abandon

the reasonableness test adopted in O’Lone. Pet. 14–15.

The divide on the threshold inquiry is not nearly so

deep, nor so consequential, as Watkinson argues. Nor

does it implicate Watkinson’s core argument that recent government benefits case law should be imported

to the prison context. The alleged split does not war-

5 Watkinson made this argument to the Ninth Circuit in a single

sentence in his reply brief. C.A. Reply Br. 12 (Dkt. 32). The Ninth

Circuit did not address it. See Pet. App. A1–A5.

rant certiorari. Moreover, Watkinson raises no persuasive reason for abandoning the Court’s settled prisoner free exercise precedent.

1. The asserted tension among the courts of appeals is largely abstract. While there is one outlier on

the substantial burden question, across the circuits

prisoners must show some infringement of their religious exercise to support a free exercise claim—no circuits appear take up bare challenges to policies that

have no impact on a prisoner’s religious exercise.

The overwhelming majority of circuits that

have addressed the question have adopted a “substantial burden” test as the measure of infringement that

may trigger a prisoner free exercise claim. This includes the D.C., Second, Fourth, Sixth, Seventh,

Eighth, Ninth, and Tenth Circuits. See Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (noting

“[t]his requirement accords with the Supreme Court’s

discussion in O’Lone”); Green Haven Prison Preparative Mtg. of Religious Soc’y of Friends v. N.Y. State

Dep’t of Corr. & Cmty. Supervision, 16 F.4th 67, 84 (2d

Cir. 2021) (“The prisoner must show at the threshold

that the disputed conduct substantially burdens his

sincerely held religious beliefs.” (quoting Salahuddin

v. Goord, 467 F.3d 263, 274–75 (2d Cir. 2006))), cert.

denied 142 S. Ct. 2676 (2022); Wright v. Lassiter, 921

F.3d 413, 418 (4th Cir. 2019) (explaining the first

stage of the analysis is “essentially the same” for First

Amendment and RLUIPA claims: “the plaintiff must

show that the prison’s policies imposed a substantial

burden on his exercise of sincerely held religious beliefs”); Koger v. Mohr, 964 F.3d 532, 543 (6th Cir. 2020)

(rejecting inmate’s free exercise challenge to a grooming policy where he failed to show a substantial burden); Thompson v. Holm, 809 F.3d 376, 379 (7th Cir.

2016) (holding that to establish a free exercise claim a

prisoner had to demonstrate the defendants “personally and unjustifiably placed a substantial burden on

his religious practices” (citing, inter alia, Hernandez v.

C.I.R., 490 U.S. 680, 699 (1989))); Mbonyunkiza v.

Beasley, 956 F.3d 1048, 1053 (8th Cir. 2020) (“[T]o

warrant a Turner analysis of penological interests, the

inmate must show the challenged regulation ‘substantially burdens’ his sincerely held belief.”); 6 Jones v.

Williams, 791 F.3d 1023, 1031 (9th Cir. 2015); Kay v.

Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (“[T]he

prisoner–plaintiff must first show that a prison regulation ‘substantially burdened . . . sincerely-held religious beliefs.’ ” (quoting Boles v. Neet, 486 F.3d 1177,

1182 (10th Cir. 2007))).

The Eleventh Circuit has also effectively applied a substantial burden requirement, although by a

different route. The Eleventh Circuit has recognized

that “[i]f a claim fails under the RLUIPA—which embeds a heightened standard for government restrictions of the free exercise of religion—it necessarily

fails under the First Amendment.” Dorman v. Aronofsky, 36 F.4th 1306, 1313 (11th Cir. 2022). Thus, if a

prisoner cannot meet RLUIPA’s statutory substantial

burden test, 42 U.S.C. § 2000cc-1(a), he or she likewise

6 In light of Mbonyunkiza, 956 F.3d at 1053, Watkinson is incor-

rect to argue that the Eighth Circuit does not apply a substantial

burden requirement. See Pet. 13 n.3.

has no claim under the First Amendment’s less-protective free exercise framework. Dorman, 36 F.4th at

1313–14.

The Third Circuit applies a threshold inquiry

focused on the prisoner’s beliefs, but not necessarily a

substantial burden test. That court emphasizes that

“only those beliefs which are both sincerely held and

religious in nature are entitled to constitutional protection.” Williams v. Morton, 343 F.3d 212, 217 (3d

Cir. 2003) (quoting DeHart v. Horn, 227 F.3d 47, 51

(3d Cir. 2000)). In Williams the Third Circuit rejected

prison officials’ argument that an inmate had to make

a threshold showing that a policy denying Halal meats

to Muslim inmates substantially burdened religious

beliefs. Ibid.

The Third Circuit has not, however, clearly rejected a substantial burden test for all prisoner free

exercise claims. For example, the court implied a substantial burden requirement when, in the federal

prison context, it rejected a prisoner’s free-exercisebased Bivens claim because the Religious Freedom

Restoration Act (RFRA) already provided a “comprehensive remedial scheme for violations of substantial

burdens on his religious exercise.” See Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016). Like

RLUIPA, RFRA requires a claimant to show a substantial burden. 42 U.S.C. § 2000bb-1(a). The Third

Circuit also applies a substantial burden threshold to

free exercise claims outside of the prison context. See

Anspach ex rel. Anspach v. City of Philadelphia, Dep’t

of Pub. Health, 503 F.3d 256, 272 (3d Cir. 2007) (“[T]he

First Amendment is only implicated if the governmental burden on religion is ‘substantial.’ ” (quoting Hernandez, 490 U.S. at 699)). And the Third Circuit has

applied the substantial burden test to prisoner free exercise claims in non-precedential unpublished decisions. See, e.g., Robinson v. Superintendent Houtzdale

SCI, 693 F. App’x 111, 115 (3d Cir. 2017) (“The threshold question in any First Amendment or RLUIPA case

is whether the prison’s challenged policy or practice

has substantially burdened the practice of the inmate–plaintiff’s religion.”); Thompson v. Ferguson,

849 F. App’x 33, 36 (3d Cir. 2021) (holding a prisoner

failed to state a free exercise claim when he did not

allege a substantial burden).

The outlier is the Fifth Circuit, which “[g]enerally . . . has not required a preliminary showing that a

regulation substantially interferes with an inmate’s

religious rights.” Butts v. Martin, 877 F.3d 571, 585–

86 (5th Cir. 2017). Still, even in the Fifth Circuit a

plaintiff must show that a religious practice was in

some way infringed or restricted to raise a free exercise claim. See, e.g., Randall v. McLeod, 68 F.3d 470,

1995 WL 581973, at *4 (5th Cir. 1995) (per curiam)

(unpublished 7) (affirming the dismissal of a free exercise claim as frivolous where a prisoner could not show

that “failure to provide him with a pork-free meal on

two separate occasions burdened his right to freely exercise his religious beliefs”); cf. DeMarco v. Davis, 914

F.3d 383, 389–90 (5th Cir. 2019) (holding a prisoner

7 Unpublished

Fifth Circuit opinions issued before January 1,

1996, are precedent in that court. Fifth Circuit Rule 47.5.3.

stated a free exercise claim where he alleged that seizing books “placed a substantial burden on his practice

of reading religious literature” and his pleadings established the prison “burdened a sincere religious

practice”).

The Fifth Circuit’s different tack does not reveal

a deep conflict over the law demanding this Court’s intervention. Indeed, requiring prisoners to make some

showing that a policy burdens their religious exercise

before they can raise free exercise claims is rooted in

this Court’s precedent. Turner only applies when “a

prison regulation impinges on inmates’ constitutional

rights.” Turner, 482 U.S. at 89 (emphasis added). And

the substantial burden inquiry itself derives from free

exercise precedent outside of the prison context. See

Ford v. McGinnis, 352 F.3d 582, 591 (2d Cir. 2003) (Sotomayor, J.) (“The notion that a plaintiff must establish a substantial burden on his religious exercise to

claim constitutional protection is derived from the Supreme Court’s test in Sherbert v. Verner, 374 U.S. 398

(1963) . . . .”).

Moreover, given that O’Lone, 482 U.S. at 349,

established a higher burden for prisoner free exercise

claims by applying the Turner reasonableness analysis, it would be illogical for it simultaneously to have

done away with a threshold inquiry to which even nonprisoners are held. See Levitan, 281 F.3d at 1320 (reasoning that O’Lone, which did not discuss the substantial burden inquiry, “assumed the importance of the

relevant ritual to the prisoners”). The Ninth Circuit

has thus merely incorporated the same threshold for

prisoner claims as it has applied to non-prisoner free

exercise claims. See Jones, 791 F.3d at 1031 (citing

Graham v. C.I.R., 822 F.2d, 844, 851 (9th Cir. 1987));

see also Pet. App. A4 (citing Jones, 791 F.3d at 1031).

The Ninth Circuit’s substantial burden test originates

in Graham v. C.I.R., a tax case where the court explained that “interference must be more than an inconvenience; the burden must be substantial and an

interference with a tenet or belief that is central to religious doctrine.” 822 F.2d 844, 850–51 (9th Cir. 1987)

(citing, inter alia, Hobbie v. Unemp’t App. Comm’n of

Fla., 480 U.S. 136, 141 (1987); Sherbert v. Verner, 374

U.S. 398, 404 (1963); Thomas v. Review Bd., 450 U.S.

707, 717–18 (1981)). This Court affirmed Graham in

Hernandez v. C.I.R. and held, “The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious

belief or practice . . . .” 490 U.S. at 699.

The Ninth Circuit’s substantial burden inquiry

is thus rooted in this Court’s free exercise jurisprudence and is applied by the overwhelming majority of

circuits. There is no deep divide requiring this Court’s

intervention.

2. The asserted circuit split is, moreover, disconnected from Watkinson’s core argument that the

Court should apply its recent government benefits

cases to the prison context. See Pet. 14 (citing Carson

v. Makin, __ U.S. __, 142 S. Ct. 1987 (2022); Espinoza

v. Montana Dep’t of Revenue, __ U.S. __, 140 S. Ct.

2246 (2020); Trinity Lutheran Church of Colombia v.

Comer, __ U.S. __, 137 S. Ct. 2012 (2017)). In Trinity

Lutheran Church of Colombia, this Court applied “the

most exacting scrutiny” to Missouri’s decision to categorically disqualify a church from receiving a playground resurfacing grant (for which it was otherwise

eligible) merely because it was a church. 137 S. Ct. at

2021–22. In Espinoza, the Court held the same when

a Montana law barred religious schools from a public

scholarship program merely because of their religious

character. 140 S. Ct. at 2255. And in Carson this Court

held that Maine penalized the free exercise of religion

when it refused to provide otherwise eligible students

with private-school tuition assistance solely because of

their schools’ religious character. 142 S. Ct. at 1997.

Watkinson identifies no circuit opinions, let

alone conflicting opinions, that apply this precedent in

the prison context. Pet. 14. The fact is that the circuit

courts have not yet been confronted with whether do

so. This Court should decline to grant certiorari on an

issue that has received no direct treatment in the circuit courts.

At any rate, the government benefits cases

would not do away with the substantial burden inquiry in the prison context. Rather, both the government benefits cases and prisoner substantial burden

cases apply the same underlying principles—albeit in

markedly different settings. In prison or not, the First

Amendment protects against being put “to a choice between being religious or receiving government benefits.” Espinoza, 140 S. Ct. at 2257. As this Court explained in Thomas, when a State “conditions receipt of

an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because

of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his

behavior to violate his beliefs, a burden upon religion

exists.” 450 U.S. at 717–18. These considerations underly the substantial burden analysis, which likewise

asks if a policy “tends to coerce the individual to forego

her sincerely held religious beliefs or to engage in conduct that violates those beliefs.” Jones, 791 F.3d at

1033 (citing, inter alia, Sherbert, 374 U.S. at 404;

Thomas, 450 U.S. at 717–18).

In the prison context, the substantial burden inquiry ensures prisons must defend only those policies

that truly infringe on an inmate’s religious exercise.

Being “put to a choice” in prison might arise where the

government benefit is a necessity regulated and distributed by the prison. If, for example, a prison provided no religious dietary accommodations, a religious

inmate might, at the extreme, be “forced to choose between violating his religious beliefs and starving to

death.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1325

(10th Cir. 2010) (Gorsuch, J., concurring) (analyzing

substantial burden under RLUIPA). No doubt that

would be a substantial burden. Ibid. But an inmate is

not put to a choice in all circumstances where a prison

refuses to provide religious variances. Watkinson’s

push to use an institution’s prisoner welfare fund to

finance his religious purchases is an example. He was

put to no choice to abandon his religious exercise

merely because the prison maintained a fund to finance charitable, recreational, and educational activities for all inmates (which Watkinson admitted he participated in, e.g., C.A. E.R. 80–81).

3. Stepping beyond the threshold inquiry, there

is no support for Watkinson’s assertion that “the

Turner reasonableness test should not even apply at

all here.” Pet. 14–15. In O’Lone this Court clearly endorsed Turner as the “proper standard” for reviewing

a prisoner’s alleged violation of free exercise rights.

482 U.S. at 349. Watkinson invokes this Court’s application of strict scrutiny review to racial classifications

in prison in Johnson v. California, 543 U.S. 499, 510

(2005). Pet. 15. Even there, however, this Court distinguished the right to be free from racial discrimination from rights that fall under Turner—including

“First Amendment challenges.” Johnson, 543 U.S. at

510 (citing O’Lone, 482 U.S. at 348).

Alaska agrees that religious discrimination is

“odious to our Constitution.” Pet. 15 (quoting Trinity

Lutheran Church of Colombia, 137 S. Ct. at 2025). But

the Turner reasonableness test remains the undisputed standard for protecting religious rights in

prison while ensuring “that courts afford appropriate

deference to prison officials.” O’Lone, 482 U.S. at 349.

As this Court explained, the reasonableness standard

strikes the proper balance among several competing

factors, among them convicted prisoners’ retained free

exercise rights, the “necessary withdrawal or limitation of many privileges and rights” attendant to incarceration, and valid penological objectives “including

deterrence of crime, rehabilitation of prisoners, and

institutional security.” Id. at 348–49. Indeed, in

O’Lone, this Court took the “opportunity to reaffirm

[its] refusal, even where claims are made under the

First Amendment, to ‘substitute our judgment on . . .

difficult and sensitive matters of institutional administration,’ . . . for the determinations of those charged

with the formidable task of running a prison.” Id. at

353 (quoting Block v. Rutherford, 468 U.S. 576, 588

(1984)).

This Court should refuse Watkinson’s invitation to abandon its prisoner free exercise precedent.

III.

The Ninth Circuit correctly affirmed the

district court’s factual findings and application of RLUIPA.

Watkinson urges this Court, in the alternative,

to grant certiorari to review the Ninth Circuit’s nonprecedential and unpublished application of RLUIPA

to the facts of his case. Pet. 15–18. But a petition for

certiorari is “rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a properly stated rule of law.” Supreme Court

Rule 10. This Court should decline to grant certiorari

to review the Ninth Circuit’s application of RLUIPA.

In any event, the Ninth Circuit’s ruling was correct.

RLUIPA gives inmates a statutory free exercise

cause of action that is more protective than the First

Amendment. See Van Wyhe v. Reisch, 581 F.3d 639,

651 (8th Cir. 2009). Under RLUIPA, States are prohibited from imposing “a substantial burden on the religious exercise of a person residing in or confined to

an institution.” 42 U.S.C. § 2000cc-1(a). A substantial

burden is permitted only if it is the least restrictive

means of furthering a compelling governmental interest. Ibid.

The Ninth Circuit affirmed the district court’s

finding that the Department had not substantially

burdened Watkinson’s religious exercise. Pet. App.

A2–A3. Because Watkinson’s RLUIPA claim failed at

that threshold, the Ninth Circuit did not analyze the

district court’s alternative finding that the Department’s policies were the least restrictive means of furthering compelling governmental interests. See id. at

A3, A23–A26.

Both lower courts were correct in concluding

that Watkinson failed to meet his initial RLUIPA burden of showing that his religious exercise was substantially burdened. See Holt v. Hobbs, 574 U.S. 352, 361

(2015). The Department had no obligation to use its

prisoner welfare fund to subsidize Watkinson’s religious purchases. RLUIPA is “[d]irected at obstructions

institutional arrangements place on religious observances” and, therefore, “does not require a State to pay

for an inmate’s devotional accessories.” Cutter, 544

U.S. at 720 n.8. By its terms, RLUIPA creates no right

“of any religious organization to receive funding or

other assistance from the government, or of any person to receive government funding for a religious activity.” 42 U.S.C. § 2000cc-3(c). Yet that is what Watkinson sought: that the Department subsidize his religious juice and honey by letting him create a virtual

account in an institution’s prisoner welfare fund and

that the Department purchase his religious firewood.

It is of no moment that for a time the Goose

Creek Correctional Center exceeded the requirements

of RLUIPA when, in contravention of Department pol-

icy, it subsidized Asatru purchases with that institution’s prisoner welfare fund. When the subsidies

stopped, no doubt Watkinson experienced new “expense, delay, and uncertainty.” See Pet. 17. But this

was, at most, “a moderate impediment to—and not a

constructive prohibition of—his religious exercise.”

Abdulhaseeb, 600 F.3d at 1325 (Gorsuch, J., concurring). And it was not because of any obstructions

placed by the Department. See Cutter, 544 U.S. at 720

n.8. To the contrary, Watkinson was still permitted to

hold his blots and to purchase or arrange for donations

of wood, juice, and honey. See C.A. E.R. 73, 215. The

Department even installed a woodshed at Goose Creek

to accept donations. Id. at 206. The Department did

not substantially burden Watkinson’s religious exercise.

The Ninth Circuit correctly stopped its analysis

there. With no substantial burden, Watkinson’s

RLUIPA claim fails. But even if this Court were to rule

to the contrary, the Ninth Circuit should be given the

first opportunity to review the district court’s further

conclusion that the Department’s policies are the least

restrictive means of serving compelling governmental

interests. See Cutter, 544 U.S. at 718 n.7 (declining to

consider arguments not addressed by the circuit court

and noting that this Court is “a court of review, not of

first review”).

Even so, the district court’s strict scrutiny analysis was sound. Giving Watkinson religious subsidies

from a prisoner welfare fund would have violated policies that taken together, serve compelling govern-

ment interests. See Pet. App. A23–A25. The Department prohibits prisoners from dedicating donations or

creating pooled accounts in the prisoner welfare fund.

C.A. E.R. 100. It does not buy property for individual

faith groups. Id. at 224. And prisoner welfare fund expenditures are limited to “charitable, recreational and

educational purposes.” Id. at 188.

As the district court explained, the Department

had an interest “in preventing . . . illegal criminal activity (fraud, strong-arming, debt payoff).” Pet. App.

A25. “[P]rison security is a compelling state interest,

and . . . deference is due to institutional officials’ expertise in this area.” Cutter, 544 U.S. at 725 n.13. Allowing prisoners to pool money in virtual accounts

within a prisoner welfare fund raises a “significant”

security concern. C.A. E.R. 97; Pet. App. A25. The Department has a compelling interest in refusing to allow that practice. The Department also furthers security by “preventing interreligious strife that may be

stoked by showing favoritism to certain groups over

others.” Pet. App. A25. It takes little imagination to

see how using discretionary expenditures from an institution’s prisoner welfare fund to support specific religious groups could foster strife, especially since the

account is intended to provide opportunities for all inmates and is funded with commissary surcharges.

C.A. E.R. 188, 227. The district court’s decision did not

rest on implausible explanations. See Pet. 18 (citing

Holt, 574 U.S. at 371 (Sotomayor, J., concurring)). And

it does not matter that Goose Creek apparently experienced no security issues during the aberrant period

when it violated Department policy by giving the Asa-

tru prisoners special access to the institution’s prisoner welfare fund. The Department did not need to

wait for a security problem before it could enforce policies intended to prevent one.

The district court also did not err in concluding

that the Department had compelling establishment

concerns with subsidizing Asatru faith group purchases. Pet. App. A24. Watkinson sued when the Department refused to use the prisoner welfare fund to

buy property for Asatru worship and to allow its members the unusual practice of maintaining a virtual account within the fund. C.A. E.R. 140–41 ¶¶ 23, 28;

152–53 ¶¶ 23, 28. The Department had “more than

merely a good faith belief,” Pet. App. A24, that it was

constitutionally required to avoid improperly “favor[ing] one religious group over another.” C.A. E.R.

91; see Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v.

Grumet, 512 U.S. 687, 703 (1994) (noting “a principle

at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion”). And the district court found the

Department administrator’s testimony credible that it

was “not feasibly administratively possible” to give all

religious groups a “fair share”—to do so would consume the prisoner welfare fund and “run counter to its

goals of providing recreational and educational activities for the benefit of the entire prisoner population.”

Pet. App. A16.

Watkinson’s reliance on Rosenberger v. Rector

& Visitors of the University of Virginia, 515 U.S. 819

(1995) is misplaced. See Pet. 17. There, this Court held

that the Establishment Clause did not require a university to deny copying funds for a student journal because of its religious viewpoint. Rosenberger, 515 U.S.

at 845. But Rosenberger does not stand for the proposition that there are no establishment concerns with

directly funding a faith group’s religious worship. In

fact, had the student organization been formed for the

purpose of practicing religious devotion (like the Asatru faith group), rather than as a student journal, it

would have been eligible for no funding at all. Id. at

826, 840. And although it did not confront such a case,

this Court noted the “special Establishment Clause

dangers where the government makes direct money

payments to sectarian institutions.” Id. at 842; see

also id. at 841 (noting that the student activity fund

at issue could not be used for “the illegitimate purpose

of supporting one religion”).

Finally, refusing to use the prisoner welfare

fund to subsidize Watkinson’s religious purchases was

the least restrictive means of furthering the Department’s interests. The district court correctly explained

that the Department did not need to “dream up alternatives” for furthering its interests when Watkinson

proposed nothing other than using the prisoner welfare fund in contravention of compelling policies. Pet.

App. A26 (quoting Walker, 789 F.3d at 1137).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.