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

No. 22-594

In The

Supreme Court of the United States

HJALMAR RODRIGUEZ, JR.,

Petitioner,

v.

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 THE RUTHERFORD INSTITUTE AND THE

JEWISH COALITION FOR RELIGIOUS LIBERTY AS

AMICI CURIAE SUPPORTING PETITIONER

John W. Whitehead

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

Howard Slugh

JEWISH COALITION FOR

RELIGIOUS LIBERTY

2400 Virginia Ave N.W. C619

Washington, DC 20037

February 17, 2023

Theodore A. Howard

*Counsel of Record

Krystal B. Swendsboe

William Turner

WILEY REIN LLP

2050 M St NW

Washington, DC 20036

202.719.7314

thoward@wiley.law

Counsel of Record for

Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 7

I. The Court Should Grant Certiorari Because the

Eleventh Circuit’s Opinion Guts the Turner

Standard and Creates a Circuit Split. ................ 7

A. The Eleventh Circuit’s Opinion Renders

Three of the Four Turner Factors a Nullity.. 8

B. Compounding

the

Eleventh

Circuit’s

Misapplication of the Turner Factors, the

Panel’s Refusal to Consider Individualized

Accommodations Conflicts With Turner and

Every Other Circuit to Address the Issue... 13

II. This Case Presents an Issue of Exceptional

Importance Because the Failure to Faithfully

Apply the Turner Factors Threatens Free

Exercise By Prisoners. ....................................... 16

A. The Eleventh Circuit’s Opinion Validates

Unconstitutional Policies and Threatens Free

Exercise For All Prisoners. .......................... 18

ii

B. The Eleventh Circuit’s Opinion Creates

Perverse Results and Undermines Turner’s

Core Principles. ............................................ 22

CONCLUSION .......................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Beard v. Banks,

548 U.S. 521 (2006) .............................................. 11

Dehart v. Horn,

390 F.3d 262 (3d Cir. 2004) ................................. 15

Emad v. Dodge Cnty.,

No. 19-CV-0598, 2022 WL 1408044 (E.D. Wis.

May 3, 2022) ......................................................... 21

Figel v. Overton,

121 F. App’x 642 (6th Cir. 2005).......................... 15

Flagner v. Wilkinson,

241 F.3d 475 (6th Cir. 2001) .............. 15, 21, 23, 25

Heyer v. U.S. Bureau of Prisons,

849 F.3d 202 (4th Cir. 2017) ................................ 14

Heyer v. U.S. Bureau of Prisons,

984 F.3d 347 (4th Cir. 2021) ............................... 10

Jehovah v. Clarke,

798 F.3d 169 (4th Cir. 2015) .......................... 14, 20

iv

Rich v. Woodford,

210 F.3d 961 (9th Cir. 2000) ................................ 20

Salaam v. Lockhart,

905 F.2d 1168 (8th Cir. 1990) .............................. 21

Shaw v. Murphy,

532 U.S. 223 (2001) ............................. 9, 10, 12, 13

Turner v. Safley,

482 U.S. 78 (1987) ............................................ 2–26

Ward v. Hatcher,

172 F.3d 61 (9th Cir. 1999) .................................. 19

Ward v. Walsh,

1 F.3d 873 (9th Cir. 1993) .............................. 14, 18

Whitney v. Brown,

882 F.2d 1068 (6th Cir. 1989) ...... 10, 11, 15, 19, 20

1

INTEREST OF AMICI CURIAE1

The Rutherford Institute is a nonprofit civil

liberties

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute provides

legal assistance at no charge to individuals whose

constitutional rights have been threatened or violated

and educates the public about constitutional and

human rights issues affecting their freedoms. The

Rutherford Institute works tirelessly to resist tyranny

and threats to freedom by seeking to ensure that the

government abides by the rule of law and is held

accountable when it infringes on the rights

guaranteed by the Constitution and laws of the United

States.

The Jewish Coalition for Religious Liberty

(“JCRL”) is an organization of Jewish rabbis, lawyers,

and professionals who are committed to defending

religious liberty. JCRL aims to protect the ability of

all Americans to freely practice their faith and foster

cooperation between Jews and other faith

1 No party’s counsel authored this brief in whole or in part, and

no person or entity, other than amici or their counsel, made a

monetary contribution to fund the brief’s preparation or

submission. All parties in this case were provided timely notice

of amici’s filing of this brief.

2

communities. To that end, JCRL is committed to

defending First Amendment precedent, like Turner v.

Safley, 482 U.S. 78 (1987), that offers broad protection

for religious liberty.

JCRL is particularly interested in ensuring

prisoners’ religious liberty. As its members may

adhere to practices many in the majority may not

know or understand, JCRL has an interest in

ensuring that prisoners are able to practice the tenets

of their faith without unconstitutional limitation and

that government actors are held to the appropriate

legal standard when burdening a prisoner’s religious

exercise. To protect that interest, JCRL has filed

amicus briefs in the Supreme Court of the United

States, as well as in state supreme courts and lower

federal courts, and it has submitted op-eds to

prominent news outlets.

3

SUMMARY OF ARGUMENT

This case is about protecting prisoners’ First

Amendment right to freely exercise their faith in

prison. Petitioner Hjalmar Rodriguez is a devout

Muslim who seeks to exercise his faith through a daily

ritual bathing (ghusl) and personal modesty. He is

prevented from doing so by a prison policy that limits

him to three showers a week—rendering his prayers

“void,” Pet.App. at 36a–38a—and requires him to strip

to his boxers to travel to and from the showers. See

Pet.App. at 3a–4a. This policy severely impairs

Petitioner’s ability to exercise his faith and he has

been denied all accommodations that would allow him

to exercise his faith as described. And, due to the

Eleventh Circuit panel’s misinterpretation and

distortion of Supreme Court precedent, all prisoners

are at risk of similar infringement.

More than 35 years ago, in Turner v. Safley, 482

U.S. 78 (1987), this Court articulated a four-factor test

to evaluate whether a prison policy violates the First

Amendment rights of prisoners. See id. at 89. To that

end, Turner held that “several factors are relevant in

determining the reasonableness of the regulation at

issue.” Id. “First, there must be a ‘valid, rational

connection’ between the prison regulation and the

legitimate governmental interest put forward to

justify it.” Id. (citation omitted). Second, courts

consider “whether there are alternative means of

4

exercising the right that remain open to prison

inmates.” Id. at 90. Third, courts are required to

assess “the impact accommodation of the asserted

constitutional right will have on guards and other

inmates, and on the allocation of prison resources

generally.” Id. And, finally, courts must consider “the

absence of ready alternatives [as] evidence of the

reasonableness of a prison regulation.” Id. Each of

the four factors plays an important role in

determining whether a restriction on a prisoner’s

constitutional rights is acceptable in light of the

prison setting.

Due to the unique circumstances of a prison, the

Turner standard seeks to balance prisoners’

fundamental

rights

and

the

government’s

institutional and penological interests. See id. at 85

(“Our task . . . is to formulate a standard of review for

prisoners’ constitutional claims that is responsive

both to the ‘policy of judicial restraint regarding

prisoner complaints and [to] the need to protect

constitutional rights.’” (citation omitted)). At bottom,

the Turner standard is designed to protect prisoners’

fundamental First Amendment rights and, taking into

account the need for deference to prison officials’

judgments regarding issues of safety and cost, it is an

important check on broad government power over

prisoners. As the Court clearly established, “[p]rison

5

walls do not form a barrier separating prison inmates

from the protections of the Constitution.” Id. at 84.

The Eleventh Circuit panel disregards and

imperils this important precedent in several ways.

Critically, the Eleventh Circuit panel misinterpreted

the Turner standard, effectively ignoring the majority

of the Turner factors and reducing it to a mere

“rational connection” test under which the

government will undoubtedly always win. The Turner

decision made clear that each of the four factors “are

relevant in determining” whether a prison regulation

implicating constitutional rights may be upheld. Id.

at 89. Although the Eleventh Circuit panel purported

to apply the Turner standard, it failed to engage with

each of the factors, giving short shrift to three of the

four factors this Court commanded lower courts to

consider. To justify its error, the panel distorted

additional Supreme Court precedent, twisting it to

make pronouncements this Court has never made.

The Eleventh Circuit panel further erred by

refusing

to

evaluate

the

individualized

accommodations proposed by Petitioner. This refusal

is inconsistent with Turner and, in refusing, the panel

created a circuit split. Turner made no statement

disqualifying individualized accommodations from

consideration, and every circuit to address the

matter—except the Eleventh Circuit—has found that

individualized

accommodations,

or

as-applied

6

challenges, to prison policies are appropriate. And on

a purely practical level, the panel’s refusal hamstrings

a prisoner seeking redress of constitutional

infringement by requiring him or her to propose

sweeping, prison-wide policy changes that will no

doubt be refused as expensive, burdensome, and

impractical to implement.

The Eleventh Circuit panel’s failure to faithfully

interpret and apply the Turner factors threatens the

free exercise of prisoners across the United States.

Turner is designed to be a constitutional check on

prison power, and the panel’s undermining of that

standard in the Eleventh Circuit weakens that check

elsewhere. Indeed, examples of unconstitutional

prison policies that were rejected elsewhere but would

pass muster in the Eleventh Circuit under the panel’s

opinion are abundant.

Finally, and perhaps most immediately, the

panel’s refusal to consider Petitioner’s proposed

individualized accommodations creates a perverse

result that further undermines Turner. By refusing

to consider individualized accommodations, the panel

perversely requires prisoners to seek broad, prisonwide policy changes. To the extent these proposed

accommodations are not rejected out of hand for being

too expensive and disruptive to the prison, they are

certain to disrupt the daily maintenance of a prison

that belies Turner’s policy of “judicial restraint.” Id.

7

at 85. Further, by eliminating consideration of a wide

scope of accommodations that may be used to show a

prison policy is not reasonable, courts are less able to

correct infringement based on pretextual or

exaggerated policy responses. These sorts of arbitrary

or irrational policies are the precise harm that Turner

sought to prevent. See id. at 89–90.

The Court, therefore, should grant review to

correct

the

Eleventh

Circuit’s

erroneous

interpretation of the Turner four-factor standard and

to ensure that the important interests protected by

the First Amendment—including a prisoner’s right to

freely practice a sincerely held religious belief—are

upheld.

ARGUMENT

I. THE COURT SHOULD GRANT CERTIORARI

BECAUSE THE ELEVENTH CIRCUIT’S OPINION

GUTS THE TURNER STANDARD AND CREATES A

CIRCUIT SPLIT.

The four-factor Turner standard is designed to

protect prisoners from unconstitutional infringement

of their fundamental rights. As discussed above, the

Turner factors are a robust test of the reasonableness

of a prison’s policy. But under the panel’s opinion, if

the “rational connection” between a prison regulation

and the prison’s legitimate penological interests

8

“exists, the policy will stand.” Pet.App. at 7a–8a. The

legal conclusions resulting from the panel’s abridged

test cannot be reconciled with—and, indeed, distort—

the approach that this Court has embraced in Turner

and its progeny.

Moreover, compounding its own error, the

Eleventh Circuit panel misapprehends the scope an

accommodation must take under Turner, conflicting

with Turner and creating a circuit split with all other

circuits to have addressed the issue. At bottom, the

panel penalizes Petitioner (and any other potential

litigant) for seeking a modest “individual

exemption”—rather than seeking sweeping policy

reform that would be expensive and burdensome to

implement—by

denying

the

exemption

as

inappropriate under Turner. Pet.App. at 11a. That

logic not only contradicts the approach of every other

circuit to address the issue but is also nonsensical as

a practical matter.

A. The Eleventh Circuit’s Opinion Renders

Three of the Four Turner Factors a

Nullity.

Rather than faithfully interpreting the Turner

standard, the Eleventh Circuit panel created its own,

abbreviated standard. Instead of engaging with the

four Turner factors, the panel relied entirely on the

first Turner factor, concluding that “if the [rational]

9

connection exists” between the prison regulation and

a legitimate governmental interest, “the policy will

stand.” Pet.App. at 7a–8a. Under the panel’s opinion,

this inquiry is all but dispositive. Indeed, the panel

states that the last three factors are merely additional

“angles” to consider. Pet.App. at 7a. More than poor

wording, the panel’s cursory application of factors two

through four demonstrates that it fails to take them

seriously. For example, and of particular concern, the

panel unquestioningly accepted the prison’s fatuous

argument that allowing Petitioner additional access to

the showers to complete his daily bathing ritual, or

allowing him to wear a shirt when walking to the

showers, would unduly strain prison resources.

Pet.App. at 11a, 14a. Indeed, the panel accepted these

assertions without considering, as it must under

factor four, easy alternatives that would impose no

more than a de minimis burden on prison officials,

including application of the prison’s pre-existing

clothing policies. See Pet.App. at 14a.

This panel’s emphasis on a single Turner factor, to

the exclusion of others, is incorrect as a matter of law.

To be sure, the first factor of the Turner test can be

dispositive.

But only to the extent that “the

connection between the regulation and the asserted

goal is ‘arbitrary or irrational.’” Shaw v. Murphy, 532

U.S. 223, 229–30 (2001) (citing Turner, 482 U.S. at

90). Under those circumstances, “the regulation fails,

10

irrespective of whether the other factors tilt in

its favor.” Shaw, 532 U.S. at 229–30.2 The inverse,

however, is not true. When a prison satisfies the first

Turner factor, as this Court has explained, the lower

“courts should consider [the] three other factors[.]” Id.

And the importance of the latter three Turner factors

is readily acknowledged and given effect by other

courts. See, e.g., Heyer v. United States Bureau of

Prisons, 984 F.3d 347, 357 (4th Cir. 2021) (“[C]ourts

must still analyze Factors Two through Four to

determine the reasonableness of the policy.”); Whitney

Notably, although the panel recognized “[i]f that rational

connection is missing, ‘the regulation fails,’” it upheld the

prison’s arbitrary policy of not allowing inmates to wear t-shirts

to the showers despite the prison unit’s “Standard Operating

Procedures” which allowed inmates to be safely removed from

their cells while wearing t-shirts. Pet.App. at 7a, 13a-14a. The

panel did not require any justification from the prison as to why

t-shirts were safe in one circumstance but not another, claiming

“we do not nitpick whether a policy could be adjusted to

accommodate a prisoner’s interest.” Pet.App. at 13a. This is

incorrect. Under Turner, it is a court’s duty to determine

“whether a policy could be adjusted to accommodate a prisoner’s

interest” to effectively safeguard prisoners’ First Amendment

rights. Thus, even if the panel were correct in its interpretation

of the Turner factors (it is not), it failed to apply even that

reduced standard.

2

11

v. Brown, 882 F.2d 1068, 1076 (6th Cir. 1989) (courts

“continue with [their] analysis” after factor one).

The panel purports to justify its misapplication of

Turner by distorting other important precedents of

this Court.

For example, the Eleventh Circuit

Opinion cites Beard v. Banks, in which this Court

stated that the Turner factors are not a balancing test.

Pet.App. at 7a. But the panel below made a logical

leap that went far beyond the Court’s holding in Beard

to suggest that the rational connection between a

prison regulation and a legitimate penological interest

is dispositive. See Pet.App. at 7a–8a. Beard demands

“more than simply a logical relation” between policy

and prison interest; indeed, it requires courts to

consider

“whether

[prison

officials]

show[]

a reasonable relation.” Beard v. Banks, 548 U.S. 521,

533 (2006) (emphasis in original).

The Eleventh Circuit Opinion similarly distorts

Shaw v. Murphy. Indeed, relying on Shaw, the panel

claimed that “[w]e do not inquire whether the prison

could make an individualized exception for the

complaining inmate—we assess ‘only the relationship

between the asserted penological interests and the

prison regulation.’” Pet.App. at 6a (quoting Shaw, 532

U.S. at 230). Read in context, however, Shaw does not

support the panel’s refusal to consider individual

accommodations. Rather, the quoted text from Shaw

merely makes clear that under the four-part Turner

12

analysis courts do not grant special status to certain

kinds of speech based on its value. Shaw, 532 U.S. at

230 (“But the Turner test, by its terms, does not

accommodate valuations of content.”). Shaw simply

does not address whether or not an individualized

accommodation is appropriate. The panel’s choice to

read out three-quarters of the Turner standard,

therefore, cannot be justified based on this Court’s

precedent.

Unless the lower courts examine all four factors,

Turner’s already deferential standard will become a

dead letter for prisoners of all religions in Florida,

Georgia, and Alabama. The Turner factors two

through four are safeguards to protect prisoners’

rights and to hold prison officials accountable. And

the Turner standard, and its application to prison

policies, is clearly established. The panel’s opinion,

however, effectively provides a constitutional free

pass to prison administrators once they invoke

discipline and security concerns and allows any

regulation that burdens free exercise to survive

provided that the prison can imagine some connection

to a legitimate government interest. This cannot be

the case. The Eleventh Circuit’s failure to require

more renders illusory the promise that “[p]rison walls

do not form a barrier separating prison inmates from

the protections of the Constitution.” Turner 482 U.S.

at 84.

13

B. Compounding the Eleventh Circuit’s

Misapplication of the Turner Factors, the

Panel’s

Refusal

to

Consider

Individualized Accommodations Conflicts

With Turner and Every Other Circuit to

Address the Issue.

The panel’s error in misinterpreting the Turner

standard is further compounded by its refusal to

consider

Petitioner’s

proposed

individualized

accommodations. This refusal conflicts with Turner,

and it is out of step with every other circuit to address

the possibility that individual accommodations might

resolve a Turner claim.

As an initial matter, the Eleventh Circuit

Opinion’s refusal to consider Petitioner’s proposed

accommodation is inconsistent with Turner. As

alluded to above, the panel refused to consider

Petitioner’s proposed accommodations and required

Petitioner to “present an obvious alternative policy

that could replace the current one on a prison-wide

scale,” Pet.App. at 12a, and provides a single citation

to Turner for this strict standard. Nothing in Turner,

however, disqualifies individualized accommodations

from consideration. And, as noted above, the same is

true of Shaw. Instead, in Turner, this Court explained

that “the existence of obvious, easy alternatives may

be evidence that the regulation is not reasonable, but

is an ‘exaggerated response’ to prison concerns.”

14

Turner, 482 U.S. at 90.

Here, the multiple

accommodations proposed by Petitioner are just such

“obvious, easy alternatives.” See Pet. at 11.

In addition to Turner itself, every other circuit to

consider the question has left open the possibility of

individual accommodations or as-applied challenges

for a Turner claim. For example, the Ninth Circuit

has rejected an interpretation of the Turner standard

that avoids considering individual accommodation.

Indeed, in that case, the Ninth Circuit ordered

remand, finding that the trial court had failed to

examine all proposed accommodations, including

“provid[ing] a special meal for one prisoner.” Ward v.

Walsh, 1 F.3d 873, 878 (9th Cir. 1993), cert. denied,

510 U.S. 1192 (1994). The Fourth Circuit similarly

rejected a trial court’s conclusion that “a system-wide

solution would be required.” Heyer v. U.S. Bureau of

Prisons, 849 F.3d 202, 217 (4th Cir. 2017); see also

Jehovah v. Clarke, 798 F.3d 169, 178–79 (4th Cir.

2015) (reversing summary dismissal, in part, because

“[a] reasonable jury could find” that the man’s

individualized “accommodation to drink wine” was an

“alternative . . . so ‘obvious’ and ‘easy’ as to suggest

that the ban [wa]s ‘an exaggerated response’” (citation

omitted)), cert. denied, 578 U.S. 962 (2016). And the

Third and Sixth Circuits have similarly assessed the

viability of individualized accommodations without

requiring

plaintiffs

to

propose

prison-wide

15

alternatives. See, e.g., Dehart v. Horn, 390 F.3d 262,

271–72 (3d Cir. 2004) (considering plaintiff’s

individualized diet request); Flagner v. Wilkinson, 241

F.3d 475, 486–87 (6th Cir. 2001) (allowing as-applied

challenge and finding that having the individual

plaintiff “search his own beard” was a viable

alternative under Turner), cert. denied, 534 U.S. 1071

(2001); see also Pet. at 20–25 (discussing circuit split).

The benefits of considering individualized

accommodations make this approach eminently

sensible. Individualized accommodations can help

courts determine whether a policy is “an exaggerated

response to speculative security objectives, and,

therefore, . . . invalid.” Whitney, 882 F.2d at 1078.

Accommodations recognize that legitimate security

concerns are not always disturbed by those who

merely want to exercise a religious tradition. See

Flagner, 241 F.3d at 487 (noting that Orthodox Jewish

prisoner’s sidelocks did not implicate the security

concerns that inspired prison grooming policy). And

individual accommodations might be warranted

where prison policies are non-responsive to the issue

presented. See Figel v. Overton, 121 F. App’x 642, 646

(6th Cir. 2005) (addressing prison’s allowance of

certain religious literature that came from a religious

institution that had not yet been approved to provide

such literature). And there is no question that

16

Petitioner provided just such sensible,

alternatives here. See Pet.App. at 11a, 14a.

“easy”

The Court should therefore grant certiorari to

correct the Eleventh Circuit’s misinterpretation and

distortion of the Turner standard and to address the

circuit split created by the panel’s refusal to consider

Petitioner’s individual accommodations.

II. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL

IMPORTANCE BECAUSE THE FAILURE TO

FAITHFULLY APPLY THE TURNER FACTORS

THREATENS FREE EXERCISE BY PRISONERS.

If allowed to stand, the Eleventh Circuit’s

weakening of Turner would undermine protections for

prisoners of all faiths. As discussed above, Turner

already takes account of the unique circumstances of

a prison, expressly recognizes the extent to which a

prison’s internal safety and security concerns may

inevitably conflict with prisoners’ exercise of their

religious rights and, in that specific context, crafted a

test to ensure that these rights would not be unduly

burdened. It is for this reason that the Eleventh

Circuit panel’s failure to give effect to the Turner

standard is especially troubling and pernicious.

Indeed, policies that were previously struck down as

unconstitutional by other courts applying Turner

would be acceptable under the panel’s opinion, as all

that is required to infringe a prisoner’s free exercise

17

would be for the prison to come up with a “rational

connection” between the challenged policy and some

penological interest.

The panel’s opinion also threatens prisoners, of a

majority or minority faith, by perversely encouraging

courts

to

reject

modest,

individualized

accommodations on the nonsensical basis that such

proposed remedies are too narrow in scope. Under the

panel’s misinterpretation, a prisoner is required to

“replace” a challenged prison policy with “one on a

prison-wide scale.” Pet.App. at 12a. Not only does

this set up prisoners for failure—requiring them to

propose broad accommodations that are, by definition,

more expensive, cumbersome, and less practical than

an individualized or limited accommodation—but it

also conflicts with the principles of judicial restraint

and equal protection espoused in Turner.

18

A. The Eleventh Circuit’s Opinion Validates

Unconstitutional Policies and Threatens

Free Exercise For All Prisoners.

Examples suggesting the harm to prisoners likely

to flow from the panel’s opinion are unsurprisingly

abundant. Indeed, certain regulations that courts in

other jurisdiction have held failed the Turner analysis

and violated the First Amendment would be upheld

under the panel’s opinion.

A very different result, for example, would have

come about if Ward v. Walsh, 1 F.3d 873 (9th Cir.

1993), were decided in the Eleventh Circuit. In Ward,

the trial court failed to make sufficient factual

findings regarding the latter three Turner factors,

effectively determining—like the Eleventh Circuit

here—that only the logical connection between the

prison’s policy and the legitimate governmental

interest mattered.

The Ninth Circuit reversed,

clarifying that “[t]he right to the free exercise of

religion is to be jealously guarded,” and “[i]t is not a

right to be readily trammeled by the state.” Id. at 876.

The fact that a court must also consider the prison’s

interests allows courts to take into account “the degree

of intrusiveness into the right of free exercise” as well

as “the cost of accommodation, giving appropriate

deference to prison officials’ assessment of the costs,”

and each of the Turner factors must be considered to

“help focus this determination.” Id. at 877. The trial

19

court’s failure to give appropriate consideration to

three of the four factors, “[made] it [] impossible for

[the Ninth Circuit] to determine whether the denial of

a kosher diet is reasonably related to the prison’s

legitimate interest in streamlined food service.” Id. at

879. The Ninth Circuit ultimately determined that,

although the first Turner factor weighed in favor of

the prison, the latter three factors all weighed in

Ward’s favor, clearly demonstrating that the prison’s

policy was “not reasonably related to a legitimate

penological interest.” Ward v. Hatcher, 172 F.3d 61,

*3 (9th Cir. 1999) (Table Opinion).

Similarly, under the panel’s opinion here, the

challenge in Whitney v. Brown, 882 F.2d 1068 (6th Cir.

1989), would have turned out very differently. In

Whitney, after weighing each of the Turner factors in

turn, the Sixth Circuit found that the prison’s policy

of denying Jewish prisoners intercomplex travel to

weekly Sabbath services and annual Passover Seders

was unreasonable. Id. at 1074, 1078. In so holding,

the court criticized the generalized argument of the

prison officials, which was effectively adopted by the

panel here, that “[a]ny time the normal routine of an

institution is altered, the good order and security of

that facility are potentially compromised.” Id. at 1074

(quoting Prison Officials’ Brief); see Pet.App. at 13a

(rejecting Rodriguez’s request to wear a t-shirt to the

shower because “[q]uite simply, more clothing

20

presents a greater safety threat”). The Sixth Circuit

observed that the prison officials “seem to

read Turner and O’Lone as saying that anything

prison officials can justify is valid because they have

somehow justified it.” Whitney, 882 F.2d at 1074. But

this is incorrect. Neither precedent requires federal

courts to “uphold prison policies which can somehow

be supported with a flurry of disconnected and selfconflicting points.” Id. Indeed, the Sixth Circuit

explained, this “misunderstanding” of the applicable

legal standard is “[p]erhaps the greatest weakness in

the prison officials’ arguments,” as “prison officials do

not set constitutional standard by fiat.” Id.; Rich v.

Woodford, 210 F.3d 961, 964–65 (9th Cir. 2000)

(Reinhardt, J., dissenting from denial of en banc

rehearing)

(“‘[D]eference

does

not

mean

abdication. . . . The Turner standard is ‘not toothless’

. . . .”).

The panel opinion’s refusal to consider less-thanprison-wide accommodations would similarly allow

otherwise unconstitutional policies to stand. For

example, in Jehovah v. Clarke, 798 F.3d 169 (4th Cir.

2015), the Fourth Circuit reversed the trial court’s

award of summary judgment, in part because the trial

court failed to consider the various accommodations

presented,

including

an

individualized

accommodation that would allow the prisoner to drink

communion wine. In reversing, the Fourth Circuit

21

noted that “at least one of these alternatives is so

‘obvious’ and ‘easy’ as to suggest that the ban is ‘an

exaggerated

response.’”

Id.

at

179

(quoting Turner, 482 U.S. at 90); see also Salaam v.

Lockhart, 905 F.2d 1168, 1174 (8th Cir. 1990) (finding

that trial court misapplied Turner’s accommodation

factor because it overestimated cost of accommodation

for a prison to recognize or use converted prisoner’s

new legal name); Emad v. Dodge Cnty., No. 19-CV0598, 2022 WL 1408044, at *6 (E.D. Wis. May 3, 2022)

(finding that Turner factors weighed in favor of

rejecting prison policy that prohibited individual

worship in prison day room, in part because prison

officials had failed to articulate any legitimate

penological interest in the policy and worshipping in

the day room provided an “obvious, easy alternative[]”

that allowed the prisoner to “pray elsewhere in his cell

pod in rooms without a toilet, all of which were already

supervised by officers”).

There is no question regarding the importance of

individualized accommodations in the context of a

Turner claim. Individualized accommodations are an

important avenue by which prisoners may obtain

relief from constitutional infringement, particularly

prisoners of minority faiths, of whom there may be few

in a prison population. See, e.g., Flagner, 241 F.3d at

479. And individualized accommodations are a costeffective means for prisons to resolve policy

22

challenges. Yet the panel’s opinion wholly excludes

them from consideration.

B. The Eleventh Circuit’s Opinion Creates

Perverse

Results

and

Undermines

Turner’s Core Principles.

The panel’s categorical refusal to consider

potential

individualized

accommodations

also

encourages the perverse result of championing large,

prison-wide policy changes over modest measures that

largely maintain the status quo. That is, under the

panel’s opinion, requests for sweeping change that are

more likely to burden prison officials are cognizable,

but the courthouse door is closed to prisoners seeking

limited remedies crafted to address particular needs.

This result is illogical and runs counter to the

principles of judicial restraint and equal protection

this Court embraced in Turner.

Notably, the RLUIPA accommodation rubric for

individualized exemptions simply does not capture all

of these circumstances. As this case demonstrates, for

many reasons, there are instances where RLUIPA

claims do not proceed and only a First Amendment

challenge to a specific prison policy remains in

litigation. Thus, the Court should not rely on RLUIPA

alone to avoid the conundrum arising from the

decision below.

23

The discouraging of challenges that seek modest or

individualized accommodation to an unconstitutional

prison policy defies logic and common sense. The

Sixth Circuit case of Flagner v. Wilkinson, 241 F.3d

475 (6th Cir. 2001), demonstrates the absurdity of this

approach.

In that case, Flagner was the only

Orthodox Jew in a prison population of more than

2,500 prisoners, and he requested an exemption to the

prison grooming policy that prohibited him from

growing his beard and sidelocks in a manner

consistent with his religious beliefs and, on multiple

occasions, resulted in the forcible cutting of his hair.

Id. at 479, 487. Under the panel opinion below, an

Orthodox Jew like Flagner would have to seek to

completely reshape an otherwise reasonable and

constitutional prison grooming policy to obtain relief.

Such a wholesale change might have undue negative

impacts on the prison community and its resources

and could not be successful.

The decision below is doubly damaging for

prisoners. On the one hand, requiring a request for

broad policy change makes it more difficult for certain

prisoners who merely want a small accommodation to

get to court in the first place. On the other, prisoner

plaintiffs who do make it to court will have difficulty

showing why a broad change to the policy should

satisfy the Turner standard, which requires

evaluating the cost of accommodation in light of the

24

burden imposed on the prison. Put differently, the

Eleventh Circuit’s approach deprives courts of

important context.

Because the panel excludes

individual accommodations from consideration, courts

may uphold a policy due to security concerns where

those concerns are, in fact, an “exaggerated response,”

Turner 482 U.S. at 90, as applied to a particular

plaintiff. This might lead to courts rubberstamping

all but the most extreme violations of religious

exercise rights.

Moreover, Turner demands “a policy of judicial

restraint.” Id. at 85. This approach furthers the

Constitution’s separation of powers principles. Id. By

imposing a requirement that a prisoner bringing a

free exercise claim under the Turner framework

demand change on “a prison-wide scale,” Pet.App. at

12a, the panel invites courts to delve further into

constitutionally sensitive terrain. What’s more, the

institutional and litigation costs prisons face when

responding

to

policy

challenges—including

determining whether a proposed alternative is as

“easy” and “obvious” as it appears at first glance—

undoubtedly increase when the proposed alternative

is a prison-wide policy change, as compared to a more

limited accommodation. Thus, the panel’s opinion has

the consequence of also increasing the burden on

prisons in responding to policy challenges.

25

Even more perversely, the panel’s interpretation of

the Turner standard would work to prevent

challenges where the asserted penological interest in

the policy is pretextual or an exaggerated concern.

For example, in Flagner, the prison argued that its

policy allowing the forcible shaving of Flagner’s beard

and sidelocks “reduce[d] gang activity by suppressing

‘gang identifiers.’” Flagner, 241 F.3d at 485. But the

Sixth Circuit recognized the absurdity of claiming

that an Orthodox Jew’s beard and sidelocks could be

“mistaken for a ‘gang identifier,” and it further noted

that “the fact that the defendants managed to wait

five years before forcibly cutting Flagner’s beard and

sidelocks . . . only further suggests that the

defendants may be exaggerating their response to the

potential security threats.” Id. at 486–87.

This is the precise scenario that Turner sought to

prevent. Indeed, Turner was adopted, in large part, to

prevent prisons from creating policies “where the

logical connection between the regulation and the

asserted goal is so remote as to render the

policy arbitrary or irrational.” Turner, 482 U.S. at 89–

90; see id. at 99 (noting that Missouri’s asserted

“rehabilitative objective” supporting policy of allowing

prisoner marriages only with the warden’s approval

was “itself suspect” because it was applied more

stringently to female prisoners and marriages of male

prisoners were “routinely approved”).

Absent

26

correction, bigoted, prejudiced, and plainly irrational

policies are no longer checked by the Turner standard

in the Eleventh Circuit. This has severe consequences

for all prisoners and courts that look for guidance in

addressing these complicated constitutional issues.

This Court must step in to correct the panel’s

misinterpretation and, ultimately, its evisceration, of

the Turner standard.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

John W. Whitehead

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

Theodore A. Howard

*Counsel of record

Krystal B. Swendsboe

William Turner

WILEY REIN LLP

2050 M St NW

Washington, DC 20036

202.719.7314

thoward@wiley.law

Howard Slugh

JEWISH COALITION FOR

RELIGIOUS LIBERTY

2400 Virginia Ave N.W. C619

Washington, DC 20037

Counsel of Record for

Amici Curiae

February 17, 2023