Amicus Curiae Brief — Hjalmar Rodriguez, Jr., Petitioner v. Edward H. Burnside, et al.

Supreme Court briefFeb 15, 2023

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No. 22-594

IN THE

Supreme Court of the United States

HJALMAR RODRIGUEZ, JR., Petitioner,

EDWARD H. BURNSIDE, ET AL., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE

MUSLIM ADVOCATES & MUSLIM JUSTICE

LEAGUE

IN SUPPORT OF PETITIONER

JUSTIN B. COX*

*Counsel of Record

LAW OFFICE OF JUSTIN B.

COX

P.O. Box 1106

Hood River, OR 97031

(541) 716-1818

justin@jcoxconsulting.org

NAOMI TSU

CHRISTOPHER

GODSHALL-BENNETT

STEPHANIE R. CORREA

REEM SUBEI

MUSLIM ADVOCATES

P.O. Box 34440

Washington, D.C. 20043

February 15, 2023

Counsel for Amici

Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................ i

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

INTERESTS OF AMICI CURIAE .......................... 1

SUMMARY OF ARGUMENT .................................. 2

ARGUMENT .............................................................. 5

I. THE COURT’S OVERSIGHT OF FIRST AMENDMENT

PROTECTIONS FOR THE MOST VULNERABLE IS

INDISPENSABLE TO RESPECT FOR RELIGIOUS

EXERCISE. .............................................................. 5

A.The Free Exercise Clause Gives Practical

Meaning to the Protections of the First

Amendment. ...................................................... 5

B. Protections for Religious Minorities Are

Essential to a Strong Free Exercise Clause ...... 6

C. State Prisons Are Where the Court’s

Intervention to Protect Free Exercise Has Been

Most Needed ...................................................... 7

D. The Court’s Recognition of Constitutional

Claims Raised by Practitioners of Minority

Faiths Have Furthered the Religious Liberty of

All Incarcerated People. .................................. 12

II. THE ELEVENTH CIRCUIT’S INTERPRETATION OF

TURNER WOULD RENDER FREE EXERCISE

CHALLENGES VIRTUALLY IMPOSSIBLE, ESPECIALLY

FOR RELIGIOUS MINORITIES................................. 15

A.Turner Sets a Constitutional Floor Important

to Free Exercise in Prisons. ............................. 15

B. Turner Fills an Important Gap in the

Statutory Protections for Religious Exercise in

Prisons. ............................................................ 16

C. The Eleventh Circuit’s Interpretation of

Turner Will Make Free Exercise Challenges

Nearly Impossible, Especially for Religious

Minorities. ....................................................... 17

CONCLUSION ......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).......... 5

Braunfield v. Brown, 366 U.S. 599 (1961) .................. 7

Cantwell v. Connecticut, 310 U.S. 296 (1940) ........ 6, 7

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993)............................... 6, 7

Cooper v. Pate, 378 U.S. 546 (1964) ................ 7, 10, 13

Cruz v. Beto, 405 U.S. 319 (1972) ............................. 13

Cutter v. Wilkinson, 544 U.S. 709 (2005).............. 7, 13

DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000) ............. 20

Employment Div., Dep’t of Hum. Res. of Oregon v.

Smith, 494 U.S. 872 (1990) ...................................... 7

Flagner v. Wilkinson, 241 F.3d 475 (6th Cir. 2001) . 20

Forde v. Zickefoose, 612 F. Supp. 2d 171 (D. Conn.

2009) ....................................................................... 18

Goldman v. Weinberger, 475 U.S. 503 (1986) ............. 7

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006) .................................... 7

Hassan v. City of New York, 803 F.3d 277 (3d Cir.

2016) ......................................................................... 9

Henderson v. Muniz, 196 F. Supp. 3d 1092 (N.D. Cal.

2016) ....................................................................... 10

Holt v. Hobbs, 574 U.S. 352 (2015) ....................... 7, 13

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407

(2022) ........................................................................ 7

Knott v. McLaughlin, No. 5:17-CV-36, 2017 WL

6820151 (M.D. Ga. Nov. 1, 2017)........................... 10

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) ........... 20

Malloy v. Hogan, 378 U.S. 1 (1964) ............................ 5

Martin v. City of Struthers, 319 U.S. 141 (1943)........ 5

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rts.

Comm’n, 138 S. Ct. 1719 (2018) .......................... 6, 7

McDaniel v. Paty, 435 U.S. 618 (1978) ....................... 7

McEachin v. McGuinnis, 357 F.3d 197

(2d Cir. 2004).......................................................... 10

Murphy v. Collier, 139 S. Ct. 1475 (2019) .................. 7

Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009) ......... 16

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ...... 8

Rendelman v. Rouse, 569 F.3d 182 (4th Cir. 2009) .. 16

Reynolds v. United States, 98 U.S. 145 (1878) ........... 7

Roddy v. Banks, 124 Fed. Appx. 469 (8th Cir. 2005)10

Rodriguez v. Burnside, 38 F.4th 1324 (11th Cir. 2022)

............................................................................ 4, 18

Sabir v. Williams, 52 F.4th 51 (2d Cir. 2022) .......... 10

Sandin v. Conner, 515 U.S. 472 (1995)....................... 8

Sherbert v. Verner, 374 U.S. 398 (1963) ..................... 7

Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007) ........ 16

Soriano v. Spearman, No. 2:17-CV-1617, 2018 WL

4292270 (E.D. Cal. Sept. 7, 2018).......................... 10

Sossamon v. Lone Star State of Texas, 560 F.3d 316

(5th Cir. 2009) ........................................................ 16

Thornburgh v. Abbott, 490 U.S. 401 (1989) .............. 20

Turner v. Safley, 482 U.S. 78 (1987) ................. 1, 4, 15

Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993) ............... 20

Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013) 16

Watford v. Harner, No. 18-CV-1313, 2018 WL

3427805 (S.D. Ill. July 16, 2018) ........................... 10

Wells v. Hendrix, No. 1:20-CV-01065, 2022 WL 19415

(S.D. Ind. Jan. 3, 2022) .......................................... 19

Wisconsin v. Yoder, 406 U.S. 205 (1972) .................... 7

Wright v. Stallone, No. 9:17-CV-0487, 2018 WL

671256 (N.D.N.Y. Jan. 31, 2018) ........................... 10

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ...... 6

Statutes

42 U.S.C. § 1983 ........................................................ 16

Other Authorities

AMITH GUPTA, SPYING ON THE MARGINS: THE HISTORY,

LAW, AND PRACTICE OF U.S. SURVEILLANCE AGAINST

MUSLIM, BLACK, AND IMMIGRANT COMMUNITIES AND

CONTEMPORARY STRATEGIES OF RESISTANCE (2021) 9

Expert Report and Declaration of Professor Craig

Haney, Ph.D., J.D., Gumm v. Sellers, No. 15-0041

(D. Ga. Feb. 12, 2015), ECF No. 159-1. ................... 2

FAIZA PATEL & MEGHAN KOUSHIK, COUNTERING

VIOLENT EXTREMISM (2017) ..................................... 8

Formerly Incarcerated, Convicted People, and

Families Movement, Human Contact ................... 17

Jeffery Ian Ross, Resisting the Carceral State:

Prisoner Resistance from the Bottom Up, 36 SOC.

JUSTICE 28 (2009-10).............................................. 13

vii

Jesse J. Norris & Hanna Grol-Prokopczyk,

Estimating the Prevalence of Entrapment in Post9/11 Terrorism Cases, 105 J. CRIM. L. &

CRIMINOLOGY 609 (2015) .......................................... 8

Kenneth L. Marcus, Jailhouse Islamophobia: AntiMuslim Discrimination in American Prisons, 1

RACE & SOC. PROBLEMS 36 (2009) ........................... 9

KUMAR RAO & CAREY SHENKMAN, EQUAL TREATMENT?

MEASURING THE LEGAL AND MEDIA RESPONSES TO

IDEOLOGICALLY MOTIVATED VIOLENCE IN THE

UNITED STATES (2018) .............................................. 8

Sarah Beth Kaufman, The Criminalization of

Muslims in the United States, 2016, 42

QUALITATIVE SOCIO. 521 (2019) ............................... 8

SpearIt, 9/11 Impacts on Muslims in Prisons, 27

MICH. J. RACE & L. 233 (2021) ............................... 11

SPEARIT, FACTS AND FICTIONS ABOUT ISLAM IN

PRISON: ASSESSING PRISONER RADICALIZATION IN

POST-9/11 AMERICA (2013) ............................... 11, 12

SpearIt, Muslims in American Prisons: Advancing

the Rule of Law Through Litigation Praxis, 3 J.

ISLAMIC L. 29 (2022) ............................... 9, 10, 14, 17

Todd R. Clear et al., The Value of Religion in Prison:

An Inmate Perspective, 16 CONTEMP. CRIM. J. 53

(2003) ................................................................ 11, 12

viii

U.S. COMM’N ON CIVIL RTS., ENFORCING RELIGIOUS

FREEDOM IN PRISON (2008) ................................ 9, 14

INTERESTS OF AMICI CURIAE 1

Amicus curiae Muslim Advocates is a nonprofit

organization that works on the frontlines of civil rights

to advocate for freedom and justice for Americans of

all faiths. The issues at stake in this case directly

relate to Muslim Advocates’ work to support prisoners

by promoting in carceral settings the availability of

religious freedom, including opportunities to perform

or abstain from acts mandated or prohibited by one’s

faith. Muslim Advocates’ litigation on behalf of

incarcerated people, both within the Eleventh Circuit

and in other circuits, relies on the framework set out

in Turner v. Safley, 482 U.S. 78 (1987), at issue in this

petition.

Amicus Muslim Justice League is committed to

supporting the fair treatment of people afflicted by the

criminal legal system in the United States. Muslim

Justice League’s mission is to organize and advocate

for communities whose rights are threatened under

the national security state in the United States. Led

by Muslims, their organizing brings justice for all

communities deemed “suspect.”

Amici write to highlight how the Eleventh

Circuit’s interpretation of Turner in this case will close

1 All parties received notice of amici’s intention to file this brief

at least 10 days prior to the deadline to file the brief. No party or

counsel for a party authored this brief in whole or in part. No

party, counsel for a party, or person other than amici curiae, its

members, or counsel made any monetary contribution intended

to fund the preparation or submission of this brief.

the courthouse doors to many incarcerated religious

practitioners’ valid claims arising from denials of basic

religious accommodations. Such claims cannot

succeed under the Eleventh Circuit’s conflicting

requirements of identifying a prison-wide policy

change that would create a de minimis cost to the

facility.

SUMMARY OF ARGUMENT

Petitioner Hjalmar Rodriguez Jr. lived under

horrific conditions in the Georgia Diagnostic and

Classification Prison’s Special Management Unit

(“SMU”). An expert who toured the facility in 2018 to

prepare a report in separate litigation described it as

“one of the harshest and most draconian facilities [he

had] seen in operation anywhere in the country.” 2

Prisoners in the SMU experience “nearly around-theclock periods of in-cell confinement” and a “near-total

deprivation of any social contact or positive

environmental stimulation from any source outside

the cell” resulting in “extremely harsh day-to-day

living conditions.” 3

Federal courts must ensure that such facilities

respect the rights guaranteed to prisoners by the

Federal

Constitution

irrespective

their

confinement. Among those guarantees is the free

exercise of religion protected by the First Amendment.

2 Expert Report and Declaration of Professor Craig Haney, Ph.D.,

J.D. at ¶ 19, Gumm v. Sellers, No. 15-0041 (D. Ga. Feb. 12, 2015),

ECF No. 159-1.

3 Id. at ¶ 36.

In conditions like those at the SMU, faith practices are

not luxuries, but tools of survival that states may not

prohibit without running afoul of the Constitution.

Yet that is what happened in this case. Mr.

Rodriguez was categorically prevented from

performing pre-prayer bathing (ghusl) and from

protecting his religiously required modesty. 4 One

relevant central tenet of Islam is the obligation for

adult Muslims to perform daily prayers (salah). Before

prayer one must be physically clean—including, for

many Muslims, the daily need to bathe in running

water (ghusl)—and protective of one’s modesty. Prayer

performed with an unclean body does not satisfy the

obligation to perform salah. Despite Mr. Rodriguez’s

requests for daily pre-prayer bathing and modesty, he

was transported to the unit showers only three times

per week and not permitted to cover himself during

transport. Pet’r’s Br. at 8.

Mr. Rodriguez proposed an easy and available

solution: move him into an empty cell with an in-unit

shower, where he could bathe and maintain his

modesty as demanded by his faith, eliminating both

burdens on his religious practice in a single move―and

Mr. Rodriguez believes that he must perform ghusl every

twenty-four hours. Rodriguez Dep. 58, ECF 175-3. He performs

ghusl every day by washing the right side of his body twice and

the left side of his body twice and repeating this process three

times. Id. at 59. He believes that, if ghusl is not performed, his

daily prayers are not accepted. Id. Furthermore, Mr. Rodriguez

believes he must “guard [his] bod[y]” by ensuring he is covered

“from mid-stomach or the naval to the bottom of the knees.” Id.

at 64-65.

at no cost to the facility. Id. at 9. The prison refused.

Id. In a ruling faithless to Turner, the Eleventh

Circuit created a categorical rule narrowing the

inquiry under Turner v. Safley, 482 U.S. 78, 90 (1987),

to consider only “an obvious alternative policy that

could replace the current one on a prison-wide scale.”

Rodriguez v. Burnside, 38 F.4th 1324, 1333 (11th Cir.

2022).

The Eleventh Circuit’s interpretation of Turner

will reverberate far beyond the facts at bar. The

decision to curtail Turner will gut the possibility of

relief for heretofore meritorious claims of incarcerated

people seeking to maintain their right to practice their

faith protected by

the

First

Amendment.

Furthermore, the requirement that alternative

policies apply on a prison-wide scale will render the

claims of minority religious adherents particularly

difficult because it will often be simply impossible to

construct a rule applicable to everyone that

accommodates a practice in which, by definition, most

people in the facility do not partake.

Imagine an imprisoned man who sincerely believes

in the importance of fasting during daylight hours

during the Muslim holy month of Ramadan. He

proposes an accommodation from the prison policy of

serving meals during daylight hours that would allow

him to eat before astronomical twilight and to break

his fast after sunset but would make no changes to the

timing of others’ meals. Under the Eleventh Circuit’s

rule, he could not challenge a denial of his request for

the absurd reason that his proposed policy did not

apply to everyone, i.e., did not require all imprisoned

persons to take meals before astronomical twilight

and after sunset. This is an illogical reading of Turner

that guts First Amendment protections for

incarcerated people of faith, especially minority

religious practitioners. This Court should grant the

petition and undo this perversion of Turner.

ARGUMENT

I. The Court’s Oversight of First Amendment

Protections for the Most Vulnerable Is

Indispensable to Respect for Religious

Exercise.

A. The Free Exercise Clause Gives Practical

Meaning to the Protections of the First

Amendment.

The freedom to practice one’s religion is central to

the laws of the United States. “[T]he promise of the

free exercise of religion [is] enshrined in our

Constitution; that guarantee lies at the heart of our

pluralistic society.” Bostock v. Clayton Cty., 140 S. Ct.

1731, 1754 (2020). The freedom is among “the

cherished rights of mind and spirit” protected by the

Constitution. Malloy v. Hogan, 378 U.S. 1, 5 (1964). As

Justice Murphy noted, “nothing enjoys a higher estate

in our society than the right given by the First and

Fourteenth Amendments freely to practice and

proclaim one’s religious convictions.” Martin v. City of

Struthers, 319 U.S. 141, 149 (1943) (Murphy, J.,

concurring). By including protection for the free

exercise of religion in the First Amendment to the

Constitution, “the people of this nation have ordained

in the light of history, that, in spite of the probability

of excesses and abuses, these liberties are, in the long

view, essential to enlightened opinion and right

conduct on the part of citizens of a democracy.”

Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

B. Protections for Religious Minorities Are

Essential to a Strong Free Exercise Clause

“The free exercise clause . . . was especially

concerned with the plight of minority religions.”

Zelman v. Simmons-Harris, 536 U.S. 639, 679 n.4

(2002) (Thomas, J., concurring) (quoting Akhil Reed

Amar, The Bill of Rights as a Constitution, 100 Yale

L.J. 1131, 1159 (1991)). Indeed, “it was ‘historical

instances of religious persecution and intolerance that

gave concern to those who drafted the Free Exercise

Clause.’” Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 532-33 (1993) (quoting

Bowen v. Roy, 476 U.S. 693, 703 (1986)). Minority

religious practice—often unfamiliar to society at large

or unpopular—is where the Free Exercise Clause is

most vulnerable and therefore where its robust

defense is most essential. “Popular religious views are

easy enough to defend. It is in protecting unpopular

religious beliefs that we prove this country’s

commitment to serving as a refuge for religious

freedom.” Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rts. Comm’n, 138 S. Ct. 1719, 1737 (2018) (Gorsuch,

J., concurring).

This Court has a long history of supervising lower

courts’ oversight of the scope of the Free Exercise

Clause. See, e.g., Kennedy v. Bremerton Sch. Dist., 142

S. Ct. 2407 (2022); Masterpiece Cakeshop, Ltd. v. Colo.

Civil Rts. Comm’n, 138 S. Ct. 1719 (2018);

Employment Div., Dep’t of Hum. Res. of Oregon v.

Smith, 494 U.S. 872 (1990) (abrogated in part by

statute); Goldman v. Weinberger, 475 U.S. 503 (1986);

McDaniel v. Paty, 435 U.S. 618 (1978); Braunfield v.

Brown, 366 U.S. 599 (1961); Reynolds v. United States,

98 U.S. 145 (1878). The Court has routinely rejected

efforts to improperly constrain minority religious

practice, even practices considered controversial. See,

e.g., Murphy v. Collier, 139 S. Ct. 1475 (2019)

(Buddhist); Holt v. Hobbs, 574 U.S. 352 (2015)

(Muslim); Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418 (2006) (Christian sect

that receives communion by drinking hallucinogen);

City of Hialeah, 508 U.S. (Santeria); Wisconsin v.

Yoder, 406 U.S. 205 (1972) (Amish); Cooper v. Pate,

378 U.S. 546 (1964) (Muslim); Sherbert v. Verner, 374

U.S. 398 (1963) (abrogation recognized by Holt, 574

U.S. 352) (Seventh Day Adventist); Cantwell, 310 U.S.

296 (1940) (Jehovah’s Witness).

C. State Prisons Are Where the Court’s

Intervention to Protect Free Exercise Has Been

Most Needed

The Court has rightly referred to prisons as among

those state-run institutions “in which the government

exerts a degree of control unparalleled in civilian

society and severely disabling to private religious

exercise.” Cutter v. Wilkinson, 544 U.S. 709, 720-21

(2005). Indeed, religious minorities in prison suffer

from the type of discrimination the First Amendment

was designed to prevent, at the hands of the very state

actors tasked with protecting their rights. “[P]risoners

do not shed all constitutional rights at the prison

gate,” Sandin v. Conner, 515 U.S. 472, 485 (1995), and

“clearly retain” the protection of the Free Exercise

Clause, “including its directive that no law shall

prohibit the free exercise of religion.” O’Lone v. Estate

of Shabazz, 482 U.S. 342, 348 (1987) (citations

omitted).

1. Muslim Religious Practice Is Uniquely

Vulnerable in Prison Settings.

Muslims are overrepresented in prisons 5 and

experience disproportionate rates of discrimination by

5 Muslims are overrepresented in prisons for reasons that include

governmental policies and practices that target Muslims for

surveillance, entrapment, and sentencing enhancements. See

Sarah Beth Kaufman, The Criminalization of Muslims in the

United States, 2016, 42 QUALITATIVE SOCIO. 521, 525 (2019);

KUMAR RAO & CAREY SHENKMAN, EQUAL TREATMENT?

MEASURING THE LEGAL AND MEDIA RESPONSES TO IDEOLOGICALLY

MOTIVATED VIOLENCE IN THE UNITED STATES (2018), available at

https://www.imv-report.org/ (prosecutors impose more serious

charges and seek sentencing enhancements); Jesse J. Norris &

Hanna Grol-Prokopczyk, Estimating the Prevalence of

Entrapment in Post-9/11 Terrorism Cases, 105 J. CRIM. L. &

CRIMINOLOGY 609 (2015) (majority of post-9/11 terrorism

prosecutions, contained indicia of entrapment or outrageous

governmental conduct); FAIZA PATEL & MEGHAN KOUSHIK,

COUNTERING VIOLENT EXTREMISM (2017), available at

https://www.brennancenter.org/our-work/researchreports/countering-violent-extremism

(federally

funded

surveillance conflating Muslim identity with criminality); AMITH

GUPTA, SPYING ON THE MARGINS: THE HISTORY, LAW, AND

PRACTICE OF U.S. SURVEILLANCE AGAINST MUSLIM, BLACK, AND

IMMIGRANT COMMUNITIES AND CONTEMPORARY STRATEGIES OF

prison officials. 6 As one scholar notes, “[the]

combination of animus against Islam and Blackness [.

. . motivates] officials who act with impunity and

intentionally disobey the law [to] make life in prison

far more painful than a mere prison sentence.” 7 In the

words of another scholar, “[w]hile other minority

religious prisoners face considerable discrimination,

the situation facing Muslim prisoners is both larger

and more complex. This is due to their substantial

percentage of the prison population, concerns about

Islamic radicalization in prison, and particular

animosities held towards members of the Muslim

faith.” 8 Indeed, “since prison officials perceive ‘the

close unity of Muslims’ under their authority as a

threat thereto, ‘officials in most prisons, at one time or

another, have banned the practice of Islam or imposed

RESISTANCE (2021), available at https://projectsouth.org/wpcontent/uploads/2021/04/FINAL-Project-South_Spying-on-theMargins_04.26.2021.pdf (documenting the long history of U.S.

government targeting of Muslim and Black communities);

Hassan v. City of New York, 803 F.3d 277 (3d Cir. 2016)

(challenging the New York Police Department's “intrusive

investigation and pervasive surveillance” of Muslims on account

of their faith).

6 See U.S. COMM’N ON CIVIL RTS., ENFORCING RELIGIOUS

FREEDOM IN PRISON 26 (2008).

7 SpearIt, Muslims in American Prisons: Advancing the Rule of

Law Through Litigation Praxis, 3 J. ISLAMIC L. 29, 36 (2022)

[hereafter Muslims in American Prisons].

8 Kenneth L. Marcus, Jailhouse Islamophobia: Anti-Muslim

Discrimination in American Prisons, 1 RACE & SOC. PROBLEMS

36, 37 (2009).

tight restrictions on Muslims but not on other

religious denominations.’” 9

Although it has been clear since Cooper in 1964

that prison officials must respect the religious rights

of their wards, Muslims have needed repeated judicial

intervention to ensure their right to practice

elemental requirements of the Islamic faith, including

the ability to pray, 10 to receive adequate nutrition, 11

to observe Ramadan, 12 and to access religious

literature. 13 The Court’s intervention is needed to

correct

the

Eleventh

Circuit’s

revisionist

Muslims in American Prisons, supra note 7, at 45 (quoting

William Bennett Turner, Establishing the Rule of Law in Prisons:

A Manual for Prisoners’ Rights Litigation, 23 STAN. L. REV. 473,

484 (1971)).

10 See Sabir v. Williams, 52 F.4th 51 (2d Cir. 2022) (policy

restricting prayer in groups of two); Soriano v. Spearman, No.

2:17-CV-1617, 2018 WL 4292270, at *1 (E.D. Cal. Sept. 7, 2018)

(prohibiting prayer inside chapel); Wright v. Stallone, No. 9:17CV-0487, 2018 WL 671256, at *5 (N.D.N.Y. Jan. 31, 2018)

(prohibiting prayer in the prison yard); Knott v. McLaughlin, No.

5:17-CV-36, 2017 WL 6820151, at *1 (M.D. Ga. Nov. 1, 2017),

report and recommendation adopted, No. 5:17-CV-36, 2018 WL

327288 (M.D. Ga. Jan. 8, 2018) (prohibiting prayer in dorms);

McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004) (guard

punished plaintiff after intentionally issuing an order during

prayer, knowing that plaintiff believed he may not respond until

completing prayer).

11 See McEachin, 357 F.3d. 197; Watford v. Harner, No. 18-CV1313, 2018 WL 3427805, at *2 (S.D. Ill. July 16, 2018) (denial of

Eid feast, halal meals, and Ramadan meals).

12 See Henderson v. Muniz, 196 F. Supp. 3d 1092 (N.D. Cal. 2016)

(denying hot meals during Ramadan).

13 See Roddy v. Banks, 124 Fed. Appx. 469 (8th Cir. 2005)

(denying religious books).

interpretation of Turner that would make

accommodations for religious practice nearly

impossible to obtain.

2. The Human Cost of Restrictions on Religious

Practice is Extreme.

Denying accommodations for religious practice in

prison harms incarcerated people of faith. Religious

practice in prison has been found to “promot[e]

survival” during incarceration 14 and to “support []

rehabilitation through healthier self-conceptions.” 15

Studies on the role of religion in prisoner

rehabilitation

demonstrate

“that

religious

involvement

associated

with

successful

rehabilitation and that involvement with Islam is

particularly successful.” 16 The rehabilitative power of

Islam is often attributed to its norms of collective

worship, egalitarianism, and mutual support, all of

which have particular resonance in prison. “The

bonding power of communal worship offers a new

circle of community, one connected by a scriptural

emphasis on egalitarianism and belief in God and

14 Todd R. Clear et al., The Value of Religion in Prison: An Inmate

Perspective, 16 CONTEMP. CRIM. J. 53, 73 (2003).

15 SPEARIT, FACTS AND FICTIONS ABOUT ISLAM IN PRISON:

ASSESSING PRISONER RADICALIZATION IN POST-9/11 AMERICA 16

(2013),

available

https://www.ispu.org/wpcontent/uploads/2012/12/ISPU_Report_Prison.pdf.

[hereinafter FACTS AND FICTIONS]

16 SpearIt, 9/11 Impacts on Muslims in Prisons, 27 MICH. J. RACE

& L. 233, 242 (2021) (summarizing studies).

righteous conduct, as opposed to skin color or political

creed.” 17

Indeed, many imprisoned people speak of the value

of Islam in managing the isolation, deprivation, loss of

freedom, threat of violence, and criminalizing

influences that are central features of life in prison. 18

Put simply, practicing Islam helps many Muslims

survive their incarceration.

In the absence of robust and tailored religious

accommodations that facilitate religious practice

(including Islam) inside prisons, already severe

conditions of confinement are made arbitrarily

punitive, which is out of step with this Court's free

exercise jurisprudence.

D. The Court’s Recognition of Constitutional

Claims Raised by Practitioners of Minority

Faiths Have Furthered the Religious Liberty of

All Incarcerated People.

Cases brought by imprisoned practitioners of

minority faiths often provide the vehicle through

which the Court ensures that the Constitution and

other federal laws protect religious exercise in prisons.

The landmark case bringing state prisons under the

17 FACTS AND FICTIONS, supra note 15.

18 Id. at 18; see generally Clear, The Value of Religion in Prisons,

supra note 14 (reflecting inmate interviews on how Islamic and

Christian practices help people cope with losses of freedom,

improve physical safety, admit guilt while building self-esteem,

create inner freedom, and build community).

review of federal courts, Cooper v. Pate, 378 U.S. 546

(1964), was started by a Muslim man challenging the

prison’s denial of religious services and imposition of

solitary confinement because he identified as Muslim.

Likewise, this Court’s affirmation of federal courts’

responsibility to protect the rights of imprisoned

people in Cruz v. Beto, 405 U.S. 319 (1972), began with

a Buddhist man’s federal court complaint seeking

access to a spiritual advisor and the freedom to

proselytize without being punished with solitary

confinement. Since these early cases, this Court has

consistently ensured that religious liberty has real,

practical meaning in prisons. See, e.g., Holt v. Hobbs,

574 U.S. 352 (2015) (allowing a Muslim inmate to

grow a half inch beard); Cutter v. Wilkinson, 544 U.S.

709, 721 (2005) (upholding Religious Land Use and

Institutionalized Persons Act, in a challenge brought

by Wiccans and other practitioners of “nonmainstream” religions).

Despite the line of cases from the Court upholding

religious liberty in prison, prisons too often frustrate

the freedom of adherents to minority religions to

practice their faith. As one study concluded,

“[d]epartments of correction have made it increasingly

difficult for many inmates to practice their religious

beliefs” with “Muslims and those practicing

nontraditional faiths” finding it even ‘more difficult’

than Christians and Jews.” 19

19 Jeffery Ian Ross, Resisting the Carceral State: Prisoner

Resistance from the Bottom Up, 36 SOC. JUSTICE 28, 32 (2009-10).

That questions about the proper application of the

Turner factors arise in a case brought by a Muslim

individual seeking to vindicate his free exercise rights

is unsurprising. Scholars have noted that Islam’s foci

on justice and care for the vulnerable leads many

Muslim prisoners to seek judicial intervention to

ameliorate wrongs and to create spaces for religious

practice. 20 Indeed, “Muslims . . . ‘have largely been

responsible for establishing prisoners’ constitutional

rights to worship.’” 21 “[Muslim] litigation has been

described as a ‘correctional law revolution, and the

beginning of an evolving concern of the courts in

correctional matters.’” 22

The Eleventh Circuit’s radical departure from the

universal—and only possible—understanding of

Turner dramatically weakens these tools for all

incarcerated religious practitioners and must be

corrected.

20 See Muslims in American Prisons, supra note 7, at 42. See also

U.S. COMM’N ON CIVIL RTS., ENFORCING RELIGIOUS FREEDOM IN

PRISON 26 (2008).

21 Muslims in American Prisons, supra note 7, at 34.

22 Id. at 31 (quoting Claire A. Cripe, Proceedings of the 106th

Annual Congress of Correction, Denver, August 22-26, 1976, 25

(1977)).

II. The Eleventh Circuit’s Interpretation of

Turner Would Render Free Exercise

Challenges Virtually Impossible, Especially

for Religious Minorities.

A. Turner Sets a Constitutional Floor Important to

Free Exercise in Prisons.

Turner established that the Constitution demands

burdens on an incarcerated person’s constitutional

rights be “reasonably related to legitimate penological

interests.” 482 U.S. at 89. The Court laid out four

factors to be considered when assessing a regulation’s

reasonableness, of which the fourth—the existence of

“obvious, easy alternatives”—is particularly relevant

here. Id. at 90. “[I]f an inmate claimant can point to

an alternative that fully accommodates the prisoner’s

rights at de minimis cost to valid penological interests,

a court may consider that as evidence that the

regulation does not satisfy the reasonable relationship

standard.” Id. at 91.

The contours of the constitutional protection for

religious exercise have, for almost four decades, been

defined by application of the Turner factors. The

Eleventh Circuit erred here in closing the courthouse

doors to individual litigants who propose tailored

alternatives with de minimis impact on prison

administration rather than prison-wide alternative

policies. As Mr. Rodriguez notes, this “deprives

plaintiffs of the opportunity to propose tailored

solutions that would minimize ripple effects and costs

to prison administrators, and that would accordingly

have a reasonable chance of success under Turner.”

Pet’r’s. Br. at 16.

B. Turner Fills an Important Gap in the Statutory

Protections for Religious Exercise in Prisons.

The analysis of First Amendment claims under

Turner does not exist in a vacuum. Indeed, such claims

are usually paired with claims brought under the more

protective Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) 42 U.S.C. § 2000cc-1(a). The

practical reason these claims are paired is that

RLUIPA, while mandating strict scrutiny analysis,

has been interpreted as allowing only injunctive relief.

See, e.g., Washington v. Gonyea, 731 F.3d 143 (2d Cir.

2013); Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009),

abrogated on other grounds by Bey v. Haines, 802 Fed.

Appx. 194 (7th Cir. 2020); Rendelman v. Rouse, 569

F.3d 182 (4th Cir. 2009); Sossamon v. Lone Star State

of Texas, 560 F.3d 316 (5th Cir. 2009), aff’d on other

grounds, 563 U.S. 277 (2011); Smith v. Allen, 502 F.3d

1255 (11th Cir. 2007), abrogated on other grounds by

Sossamon, 563 U.S. 277 (2011). First Amendment

claims brought via 42 U.S.C. § 1983 are thus the only

path to compensation (and its deterrent effect) for a

free exercise violation.

Perhaps more consequential, First Amendment

claims for damages cannot be mooted by the transfer

of an imprisoned litigant, as RLUIPA claims can be.

Thus, a genuine possibility of relief under Turner

lessens the incentive for prison officials sued by their

wards to use involuntary transfers to moot cases

because doing so cannot dispose of the entire case. 23

C. The Eleventh Circuit’s Interpretation of Turner

Will Make Free Exercise Challenges Nearly

Impossible, Especially for Religious Minorities.

The conflicting requirements that proposed

alternative regulations must both apply prison-wide

and create a de minimis cost to the facility would

render Turner claims particularly difficult—if not

impossible—for religious minorities. Regulations that

burden minority religious practice often have no

impact on the majority faith. Such regulations by

definition only burden the free exercise of religious

minorities. Acknowledgment of that fact will be fatal

to any claim they could bring under the Eleventh

Circuit’s interpretation of Turner, whereby prison

officials can ignore wholesale an obvious, available,

and costless way to permit an individual to practice

their minority faith—even if they are the only one of

that faith—unless and until they can “present an

obvious alternative policy that could replace the

current one on a prison-wide scale” without costing the

23 It must be noted that the decision to involuntarily transfer an

incarcerated person can be cruelly disruptive. See Muslims in

American Prisons, supra note 7, at 41-42; see also Formerly

Incarcerated, Convicted People, and Families Movement, Human

Contact, available at https://ficpfm.org/demands/ (“Maintaining

connections and contact with our families is crucial to surviving

prison, and to rejoining our communities as whole people. We

place great value on the ability to visit as a means of maintaining

our families, friendships, and a genuine relationship with our

community.”).

prison anything and without burdening others’

religious practice. Rodriguez, 38 F.4th at 1333.

In the context of a regulation that does not burden

majority faith practices but does burden those of

minority religions—that is, virtually every relevant

regulation—individualized accommodations have to

be an option available to balance free exercise rights

with the facility’s penological interests. Prison-wide

alternative policies will inevitably either create new

burdens on other religions, generate more than a de

minimis cost for the facility, or both. Facilities would

thus have a get-out-of-court-free card when they

burden minority religious practices.

The absurdity of this result is perhaps why courts

have not applied Turner in this way. For example, in

Forde v. Zickefoose, 612 F. Supp. 2d 171 (D. Conn.

2009), a Muslim woman was subjected to cross-gender

pat-down searches and photographed without her

hijab, substantially burdening her sincerely held

religious beliefs. Id. at 180. The court found both

policies—cross-gender pat-downs and maintaining

photos without head coverings—to be rationally

related to legitimate government interests, satisfying

Turner’s first factor. Id. at 181. Nevertheless, it found

both policies created a triable issue of fact that the

policies were irrational as applied to plaintiff because

an “easy, obvious alternative” with little to no cost

existed: exempting the plaintiff. Id. Had it instead

applied the Eleventh Circuit interpretation of Turner,

the court would have stopped after its analysis of the

first factor because the plaintiff did not propose all

cross-gender searches be banned, or all prisoners be

permitted to wear head coverings in photos. Given the

legitimacy of the policy in general, the only de minimis

accommodation was an exemption for the individual

whose religious liberty was burdened. The Eleventh

Circuit’s rule would have precluded the only path to

relief, rendering Turner meaningless in cases like

these.

While religious minorities will be most predictably

in this predicament, Christian prisoners will also have

a difficult time bringing Turner claims under the

Eleventh Circuit’s rule. A recent case in Indiana, Wells

v. Hendrix, No. 1:20-CV-01065, 2022 WL 19415 (S.D.

Ind. Jan. 3, 2022), involved a Christian prisoner whose

Bible was withheld upon transfer to another facility.

The reason for this delay was a decision by prison

officials to allocate staff away from property

processing in the face of a staff shortage. Id. at *8.

Noting that this delay did, of course, burden the

plaintiff’s religious exercise, the court applied the

Turner factors, finding that the staffing decision was

rationally connected to a legitimate interest. Id. When

it analyzed the staffing decision under the third and

fourth factors, the court considered a simple

alternative: “If digging through Mr. Wells' property to

find his Bible was too much trouble given the staff

shortage, prison administrators could have provided

him a Bible.” Id. at *9. Given this “easy, obvious

alternative,” the court found that a reasonable juror

could find the staffing decision violated the First

Amendment as applied to the plaintiff. This could not

have resulted under the Eleventh Circuit’s rule which

would have compelled the court to reject this

alternative because it does not displace the staffing

policy altogether.

The cases above illustrate the illogic of the

Eleventh Circuit’s interpretation of Turner. Other

circuits to have considered the question have applied

Turner to requests for individual accommodations

from policies rationally related to legitimate

penological interests in the general sense. See

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006); Flagner

v. Wilkinson, 241 F.3d 475 (6th Cir. 2001); DeHart v.

Horn, 227 F.3d 47 (3d Cir. 2000) (en banc); Ward v.

Walsh, 1 F.3d 873 (9th Cir. 1993). The Eleventh

Circuit’s outlier interpretation errs to the detriment of

incarcerated people in the circuit.

The Eleventh Circuit's categorical requirement of

a facial challenge is incorrect simply as a matter of

caselaw. The Sixth Circuit explained it best in

Flagner, 241 F.3d at 483 n.5: “[T]he proposition that

under Turner, courts are not to subject challenged

prison regulations to ‘a four-factor analysis tailored to

the plaintiff’s individual circumstances’ ignores

controlling Supreme Court precedent.” Id. (citations

omitted). The Sixth Circuit panel went on to explain

that in Thornburgh v. Abbott, 490 U.S. 401 (1989), this

Court found a prison policy facially valid under Turner

but remanded the case for analysis of whether it

violated the First Amendment on an as-applied basis.

Flagner, 241 F.3d at 483 n.5. The fact that Turner

contemplates as-applied challenges to facially valid

prison regulations is as clear in 2023 as it was to this

Court in 1989 when it decided Thornburgh.

These examples illustrate the absurdity of the

Eleventh Circuit’s interpretation of Turner and why it

has not been employed by any court, including this

one. There must be space for as-applied

determinations in appropriate circumstances. The

Eleventh Circuit’s rule improperly transforms a

possible result—that a proposed accommodation to

alleviate a burden is too costly—into an inevitability.

In so doing, it closes the courthouse doors to the people

most reliant on their opening.

CONCLUSION

For the reasons set forth above, amici request

that this Court grant the petition for a writ of

certiorari.

Respectfully submitted,