Petition for Writ of Certiorari — Heidi E. Washington, Director, Michigan Department of Corrections, Petitioner v. James Harrison Fox, et al.
Supreme Court briefSep 25, 2023
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No. _________
In the Supreme Court of the United States
HEIDI E. WASHINGTON, DIRECTOR OF THE MICHIGAN
DEPARTMENT OF CORRECTIONS, PETITIONER
V.
JAMES HARRISON FOX; SCOTT DAVID PERREAULT
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Dana Nessel
Michigan Attorney General
Ann M. Sherman
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628
Joshua Smith
Assistant Attorney General
Corrections Division
Attorneys for Petitioner
i
QUESTION PRESENTED
Whether the Sixth Circuit failed to give adequate
deference under Cutter v. Wilkinson, 544 U.S. 709
(2005), to the Michigan Department of Corrections’
compelling interest in avoiding racial unrest and violence, and in doing so, adopted a least-restrictivemeans analysis that forced official recognition of a
white supremacist religious organization that is seeking communal worship within prison walls.
ii
PARTIES TO THE PROCEEDING
The petitioner is Heidi Washington, the Director
of the Michigan Department of Corrections (MDOC).
The respondents are James Fox and Scott Perreault,
prisoners in the custody of the MDOC and adherents
of the Christian Identity faith.
iii
TABLE OF CONTENTS
Question Presented...................................................... i
Parties to the Proceeding ........................................... ii
Petition Appendix Table of Contents ........................ iv
Table of Authorities .................................................. vii
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 1
Statutory Provisions Involved .................................... 2
Introduction ................................................................ 3
Statement of the Case ................................................ 4
A. Background Facts .......................................... 4
B. The First Trial................................................ 6
C. The First Appeal to the Sixth Circuit ........... 9
D. District Court Proceedings on Remand....... 10
E. The Second Appeal to the Sixth Circuit ...... 14
Reasons for Granting the Petition ........................... 16
I.
By not considering the MDOC’s compelling
governmental interest in avoiding racial
unrest and violence in order to maintain
secure and safe correctional facilities, the
Sixth Circuit’s analysis disregards this
Court’s decision in Cutter v. Wilkinson. ............ 16
A. The least-restrictive-means element of a
RLUIPA claim cannot be analyzed
without first considering the nature of
the compelling governmental interest. ....... 17
iv
B. Because MDOC’s interest in avoiding
racial violence for purposes of prison
security constitutes a compelling
governmental interest, a full analysis of
all RLUIPA factors would have led to a
different decision. ......................................... 23
II. The Sixth Circuit’s failure to adequately
consider the MDOC’s compelling interest and
its impact on the least-restrictive-means
analysis stands in tension with the other
circuits. ............................................................... 30
A. The other circuit courts of appeal analyze
the compelling governmental interest
before determining whether prison
officials chose the least restrictive means
of furthering that compelling interest. ....... 31
B. Other circuits have found security to be a
compelling governmental interest and
have analyzed the least restrictive means
accordingly. .................................................. 33
C. Other Sixth Circuit panels have analyzed
the elements of RLUIPA claims in
sequence. ...................................................... 35
Conclusion ................................................................. 37
PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals
for the Sixth Circuit
Opinion in 21-1694
Issued June 26, 2023 .................................. 001a–011a
v
United States District Court
Western District of Michigan
Case No. 1:13-cv-1003
Memorandum Opinion
Issued October 29, 2021.............................. 012a–029a
United States Court of Appeals
for the Sixth Circuit
Opinion in 19-1398
Issued February 6, 2020 ............................. 030a–054a
United States Court of Appeals
for the Sixth Circuit
Judgment in 19-1398
Issued February 6, 2020 ....................................... 055a
United States District Court
Western District of Michigan
Case No. 1:13-cv-1003
Memorandum Opinion
Issued March 27, 2019 ................................ 056a–077a
United States District Court
Western District of Michigan
Case No. 1:13-cv-1003
Memorandum Opinion and Order
Issued May 7, 2015 ..................................... 078a–083a
United States District Court
Western District of Michigan
Case No. 1:13-cv-1003
Report and Recommendation
Issued May 7, 2015 ..................................... 084a–107a
vi
Memorandum
To McKee from Leach
Signed request for recognition
August 3, 2017 ............................................ 108a–109a
vii
TABLE OF AUTHORITIES
Cases
Al Saud v. Days,
50 F.4th 705 (9th Cir. 2022) ............................... 31
AlAmiin v. Morton,
528 F. App’x 838 (10th Cir. 2013) ...................... 34
Allah v. Virginia,
601 F. App’x 201 (4th Cir. 2015) ........................ 34
Am. Tobacco Co. v. Patterson,
456 U.S. 63 (1982) .............................................. 21
Beard v. Banks,
548 U.S. 521 (2006) ............................................ 26
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ...................................... 20, 21
Charles v. Frank,
101 F. App’x 634 (7th Cir. 2004) ........................ 34
Christian Separatist Church Society of Ohio v.
Ohio Department of Rehabilitation &
Corrections,
No. 18-3404, 2019 WL 1964307 (6th Cir. Feb.
13, 2019)........................................................ 35, 36
Coleman v. Governor of Mich.,
413 F. App’x 866 (6th Cir. 2011) ........................ 35
Cutter v. Wilkinson,
544 U.S. 709 (2005) . i, 3, 13, 16, 18, 22, 23, 29, 35
Dawson v. Delaware,
503 U.S. 159 (1992) ............................................ 24
DeMoss v. Crain,
636 F.3d 145 (5th Cir. 2011) .............................. 34
viii
Fegans v. Norris,
537 F.3d 897 (8th Cir. 2008) .............................. 32
Fowler v. Crawford,
534 F.3d 931 (8th Cir. 2008) ........................ 28, 29
Fox v. Washington,
71 F.4th 533 (6th Cir. 2023) .... 14, 15, 18, 26, 27,
30, 32
Fox v. Washington,
949 F.3d 270 (6th Cir. 2020) ............ 10, 14, 18, 35
Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal,
546 U.S. 418 (2006) ............................................ 20
Gooden v. Crain,
353 F. App’x 885 (5th Cir. 2009) ........................ 34
Greenhill v. Clarke,
944 F.3d 243 (4th Cir. 2019) .............................. 32
Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242 (2010) ............................................ 21
Hoevenaar v. Lazaroff,
422 F.3d 366 (6th Cir. 2005) ........................ 26, 35
Holt v. Hobbs,
574 U.S. 352 (2015) .......................... 18, 19, 22, 23
Hudson v. Palmer,
468 U.S. 517 (1984) ............................................ 24
Jam v. Int’l Fin. Corp.,
__ U.S. __; 139 S. Ct. 759 (2019) ........................ 21
Jova v. Smith,
582 F.3d 410 (2d Cir. 2009) ................................ 33
Murphy v. Missouri Department of Corrections,
372 F.3d 979 (8th Cir. 2004) .............................. 33
ix
Murphy v. United States,
653 F.2d 637 (D.C. Cir. 1981) ...................... 24, 33
Ramirez v. Collier,
595 U.S. 411; 142 S. Ct. 1264 (2022) ........... 19, 20
Rich v. Sec’y, Fla. Dep’t of Corr.,
716 F.3d 525 (11th Cir. 2013) ............................ 32
Schlemm v. Wall,
784 F.3d 362 (7th Cir. 2015) .............................. 32
Spratt v. R.I. Dep’t of Corr.,
482 F.3d 33 (1st Cir. 2007) ................................. 32
Tucker v. Collier,
906 F.3d 295 (5th Cir. 2018) .............................. 32
Turner v. Safley,
482 U.S. 78 (1987) .............................................. 24
Van Wyhe v. Reisch,
581 F.3d 639 (8th Cir. 2009) .............................. 34
Washington v. Klem,
497 F.3d 272 (3d Cir. 2007) ................................ 32
Watson v. Christo,
837 F. App’x 877 (3d Cir. 2020) ......................... 34
Wilkinson v. Austin,
545 U.S. 209 (2005) ............................................ 24
Williams v. Annucci,
895 F.3d 180 (2d Cir. 2018) ................................ 32
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) .............................. 32
x
Statutes
28 U.S.C. § 1254(1) ..................................................... 1
28 U.S.C. § 1291 .......................................................... 1
28 U.S.C. § 1331 .......................................................... 1
42 U.S.C. § 1983 .......................................................... 1
42 U.S.C. § 2000bb et seq. ......................................... 20
42 U.S.C. § 2000cc et seq............................................. 5
42 U.S.C. § 2000cc-1 ............................................... 1, 2
42 U.S.C. § 2000cc-1(a) ............................................. 22
42 U.S.C. § 2000cc-5(7)(A) ........................................ 18
42 U.S.C. § 300gg-13(a)(4) ........................................ 20
1
OPINIONS BELOW
The opinion of the Sixth Circuit Court of Appeals,
App. 1a–11a, is reported at 71 F.4th 533. The opinion
of the United States District Court for the Western
District of Michigan, App. 12a–29a, is not reported
but available at 2021 WL 5039740. The decision appealed was the second appeal to the Sixth Circuit in
this case. The first opinion of the Sixth Circuit Court
of Appeals, App. 30a–54a, is reported at 949 F.3d 270.
The first opinion of the United States District Court
for the Western District of Michigan, App. 56a–77a, is
not reported but available at 2019 WL 1409375.
JURISDICTION
The district court had jurisdiction over this case
because the amended complaint asserted claims under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1, under which federal question jurisdiction
exists, 28 U.S.C. § 1331. The court of appeals had jurisdiction to review the district court’s final judgment under 28 U.S.C. § 1291. This Court’s jurisdiction is under
28 U.S.C. § 1254(1).
2
STATUTORY PROVISIONS INVOLVED
42 U.S.C. § 2000cc-1
§ 2000cc-1. Protection of religious exercise of
institutionalized persons
(a) General rule
No government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the
burden results from a rule of general applicability, unless the government demonstrates
that imposition of the burden on that person-(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
(b) Scope of application
This section applies in any case in which-(1) the substantial burden is imposed
in a program or activity that receives
Federal financial assistance; or
(2) the substantial burden affects, or
removal of that substantial burden
would affect, commerce with foreign
nations, among the several States, or
with Indian tribes.
3
INTRODUCTION
The Sixth Circuit held that the decision to deny
recognition to the Christian Identity faith, which is
based on an ideology of white separatism, violated
RLUIPA because the Michigan Department of Corrections (MDOC) did not use the least restrictive means
to achieve its compelling interest. But in only deciding
whether the least restrictive means were used, the
court did not consider the MDOC’s compelling interest
in avoiding racial unrest and violence in order to
maintain safe and secure correctional facilities.
Instead, the Sixth Circuit divorced the least-restrictive-means analysis from the compelling-interest
analysis, and in doing so contravened this Court’s decision in Cutter v. Wilkinson, 544 U.S. 709 (2005), the
plain language of RLUIPA, and decisions of the other
circuit courts of appeal, as well as prior Sixth Circuit
decisions. The least-restrictive-means analysis is inextricably enmeshed with the compelling governmental interest at issue, so a court cannot analyze the former without first analyzing, or at minimum recognizing, the latter. Accordingly, the Sixth Circuit failed to
conduct a complete RLUIPA analysis.
Indeed, the Sixth Circuit neither factored in reasoned guidance for prison officials faced with ensuring
both the religious liberty of prisoners and the safety of
prisoners and staff nor considered the MDOC’s compelling interest—yet with this incomplete analysis
struck down a reasonable decision to deny recognition
to Christian Identity. This amounted to throwing a
match into the already racially charged tinderbox of
prisons. The Court should grant this petition.
4
STATEMENT OF THE CASE
A. Background Facts
This appeal arises out of the efforts of two prisoners in the custody of the MDOC, Respondents James
Fox and Scott Perreault, to obtain official recognition
for their religion, Christian Identity, which is based
on an ideology of white separatism. (Trial Tr., 8/13/18,
R. 141, Page ID # 1171, 1191–92.) According to Fox
and Perreault, this means that the different races
should be separated, including while worshipping and
cohabitating. (Id., Page ID # 1190–92, 1210.) Fox testified at a bench trial that this “is [b]iblically commanded and ordained.” (Id., Page ID # 1210.) Perreault testified that he believes:
[T]he white people are the Israelites of the Bible and are called to be the servant people of
God. In this capacity, they have built the
churches, translated the Bible, clothed the
world and provided food for the world. But we
do teach white separatism, black separatism,
brown separatism and yellow separatism.
(Id., Page ID # 1209.) In both their complaint and
their amended complaint, Fox and Perreault state
that “Christian Identity adherents must congregate
for worship services.” (Compl., Page ID # 3; Am.
Compl., Page ID # 44.)
The MDOC denied recognition to Christian Identity because recognizing an expressly racist religion at
correctional facilities, which already have tense race
relations, would threaten security by provoking racial
violence. In addition, Christian Identity has similar
5
beliefs and practices to other Christian groups recognized by the MDOC, which could meet their basic
Christian requirements. Fox and Perreault filed suit,
alleging that the MDOC violated the Free Exercise
Clause of the First Amendment and RLUIPA, 42
U.S.C. § 2000cc et seq., in denying their request for
formal recognition of the Christian Identity religion.
Pursuant to MDOC policy, group religious services and activities are offered only to recognized religious groups. (Mot. Summ. J. Br. Ex. A, Policy Directive, R. 119-2, Page ID # 785–86.) After receiving
Fox and Perreault’s request, Special Activities Coordinator (SAC) David Leach presented it to the
MDOC’s Chaplaincy Advisory Council (CAC), which is
“comprised of representatives of various faiths and denominations” and “serves in an advisory capacity to
the [MDOC] regarding religious policy and programming.” (Id., Page ID # 783.) On August 3, 2017, Leach
wrote a memorandum to Deputy Director of the Correctional Facilities Administration Kenneth McKee,
who was charged with deciding whether to recognize
Christian Identity, stating that the CAC advised “that
the request for recognition be denied.” (Mot. Summ. J.
Ex. B, Leach Mem., R. 119-3, Page ID # 797.) App.
108a–109a.
Leach’s memorandum noted that “although it
would not factor into whether or not the Christian
Identity religion should be recognized as a religious
group, the Christian Identity movement is known to
have extreme racist and anti-Semitic views with a history of violence in the United States.” (Id.) Consequently, he explained that “practice of the Christian
6
Identi[t]y movement would pose a threat to the custody, and security of our correctional facilities.” (Id.)
McKee, the ultimate decision-maker on the matter, reviewed Leach’s memorandum on August 7,
2017. (Id.) On the bottom of the memorandum, he explained, “I approve that the recognition of the Christian Identity religious group be denied due to the
threat to the custody and security at our correctional
facilities.” (Id.)
B. The First Trial
On August 13, 2018, a bench trial was held in the
United States District Court for the Western District
of Michigan. Perreault, Fox, and Kenneth Robinson
testified on behalf of Respondents. The MDOC called
McKee and Leach.
Perreault testified that the Christian Identity
Church requires group worship. (Trial Tr., 8/13/18, R.
141, Page ID # 1168–69.) Fox and Perreault both testified that they could not attend group worship with
members of another Christian denomination due to
the Christian Identity Church’s focus on racial separatism. (Id., Page ID # 1191–92, 1217.) Specifically,
Fox testified that non-Christian-Identity worshippers
do not “fit [in with] what it is . . . [he] believes” because
“[t]hey don’t practice racial separatism.” (Id., Page ID
# 1217.)
Both Leach and McKee testified regarding the
MDOC’s decision to deny formal recognition of the
Christian Identity religion. Ultimately, after reviewing its religious tenets and beliefs, the CAC determined that the Christian Identity religion’s needs
7
could be adequately met by an existing recognized religious group. (Id., Page ID # 1254, 1266.)
In addition to this recommendation, Leach also
explained that “the Christian Identity movement is
known to have extreme racist and anti-Semitic views
with a history of violence in the United States.” (Id.)
Specifically, Leach noted:
It is a movement uniting many of the white
supremacist groups in the United States, with
the Ku Klux Klan reportedly the largest group
within the Christian Identity movement. Interestingly, the Southern Poverty Law Center
itself has stated that the Christian Identity
movement has a “unique anti-Semitic and racist theology.”
(Id.)
Consequently, Leach explained that he believed
that “the practice of the Christian Identi[t]y movement would pose a threat to the custody, and security
of . . . [the MDOC’s] correctional facilities.” (Id.)
At trial, Leach explained the steps he took to
reach these conclusions. For example, he conducted
research that showed that “the Christian Identity
movement is on . . . the watch list of the FBI . . . as a
group to be concerned about as far as violence and terrorism in the United States.” (Trial Tr., 8/13/18, R.
141, Page ID # 1254.) He also testified that he read
the FBI’s Megiddo Report, an “article titled ‘Religious
Tolerance’ by the Ontario Consultants on Religious
Tolerance[,]” and articles from Newsweek and the
Southern Poverty Law Center on the Christian
8
Identity faith. (Id., Page ID # 1254–55, 1257.) After
reviewing these documents, he concluded that the
MDOC “needed to be very careful because there wa[s]
. . . report after report[] of violent acts committed
by . . . members of the Christian Identity” religion.
(Id., Page ID # 1256.) Leach also testified that he did
not come across any documents in his research that
led him to believe that the Christian Identity religion
had changed its purported violent ways in recent
years. (Id., Page ID # 1257–58.)
McKee also testified about Leach’s memorandum
recommending that the MDOC deny Fox and Perreault’s request to formally recognize the Christian
Identity faith. (Id., Page ID # 1237.) He noted that the
memorandum contained two propositions: (1) that the
Christian Identity faith’s needs could be met by existing programming, and (2) that formal recognition presented a safety and security concern. (Id., Page ID
# 1237.) McKee explained that he took both concerns
into consideration when making his final determination regarding Fox and Perreault’s request for formal
recognition. (Id., Page ID # 1238.) McKee testified
about both points:
In prison, custody and security is first and
foremost, so at the tail end of that memorandum, that’s what I read. But I also took into
consideration that the second paragraph of
the memo also states that their . . . core beliefs
could be recognized or done through other recognized religious groups that we already have
in the Department of Corrections. So it was
definitely two-fold.
(Id.)
9
Ultimately, given these concerns, McKee made
the final decision to deny Fox and Perreault’s request.
(Def.’s Mot. Summ. J., Ex. B, R. 119-3, Page ID # 797.)
Following the bench trial, the district court found
for the MDOC on all of Fox and Perreault’s claims.
App. 56a–57a. Specifically as to Fox and Perreault’s
RLUIPA claim, the district court determined that
they “failed to meet their burden of establishing that
the non-recognition of the Christian Identity faith
substantially burdened their exercise of that religion.”
App. 72a–73a. Accordingly, the district court did not
analyze whether the MDOC had a compelling interest
or whether refusing to recognize Christian Identity as
a religious group was the least restrictive means of
furthering that compelling interest. Fox and Perreault appealed the dismissal of their RLUIPA claim,
but not the dismissal of their First Amendment claim.
C. The First Appeal to the Sixth Circuit
On appeal, the Sixth Circuit recognized that
RLUIPA requires a three-step analysis:
Analysis under RLUIPA is a three-act play.
First, the inmate must demonstrate that they
seek to exercise religion out of a sincerely held
religious belief. Second, the inmate must show
that the government substantially burdened
that religious exercise. Upon satisfaction of
these two steps, the burden then shifts to the
government for the third act: it must meet the
daunting compelling-interest and least-restrictive-means test.
10
Fox v. Washington, 949 F.3d 270, 277 (6th Cir. 2020)
(cleaned up) (Fox I). App. 40a–41a.
The Sixth Circuit reversed the district court’s decision regarding the RLUIPA claim, concluding that
MDOC placed “a substantial burden on plaintiffs’ religious exercise.” Id. at 281. App. 50a. It remanded the
case “for consideration and a ruling on whether the
[MDOC] satisfied the standard of strict scrutiny under RLUIPA’s third step.” Id. at 273. App. 32a.
On remand, the Sixth Circuit directed the district
court “to take additional evidence as necessary, with
the understanding that the [MDOC] will face a heavy
burden at this step.” Id. at 283. App. 53a. Further, the
MDOC would:
[b]e limited to raising the justifications it cited
at the time it made the decision to deny plaintiffs’ request for recognition of Christian Identity: (1) that the religious beliefs and practices
of the Christian Identity religion can be adequately met by an existing recognized religious group; and (2) that it would threaten the
custody and security at all correctional facilities.
Id. (internal citation omitted).
D. District Court Proceedings on Remand
On April 9, 2021, the district court conducted an
evidentiary hearing, “limited to the issues of whether
the MDOC’s denial of recognition of the Christian
Identity faith serves a compelling government interest and whether it is the least restrictive means of
11
furthering that compelling interest.” App. 13a. The
MDOC called two witnesses: Todd Bechler, a senior
intelligence analyst with the MDOC (Hrg Tr., 4/9/21,
pp. 8–41; R. 219, Page ID #2014–47); and Steve Adamson, a retired MDOC Special Activities Coordinator (Hrg Tr., 4/9/21, pp. 43–58; Page ID #2049–64).
App. 14a. The MDOC also offered the deposition testimony of Leach, who had by that time retired. (Id.
(citing Hrg. Tr., 4/9/21, R. 219, pp. 58–59, Page ID #
2064–65; 2/8/21 Leach Dep., R. 221).) Both Fox and
Perreault testified on their own behalf. (Hrg. Tr.,
4/9/21, R. 219, Perreault, pp. 60–70, Page ID # 2066–
76; Fox, pp. 70–74, Page ID # 2076–80.) The district
court “also considered the testimony of the August 13,
2018, bench trial as well as the parties’ post-trial and
post evidentiary hearing briefs.” App. 14a.
Bechler testified “that he has a master’s degree in
homeland security, focusing on domestic terrorism,
and that he has significant law enforcement experience concerning gangs and terrorist organizations.”
(Hrg Tr., 04/9/21, R. 219, Page ID # 2015–16.) Bechler’s studies included information about the Christian
Identity faith. (Id., Page ID # 2016–17.) In 2017, he
was “asked by the MDOC Deputy Director to opine on
the [Christian Identity] faith as a religious group.”
(Id., Page ID # 2016.) Bechler noted that the Christian
Identity faith “tends to be more towards a white supremacist-type of ideological perspective,” and that
adherents believe that “the Caucasian race is part of
the lost tribe of Israel.” (Id., Page ID # 2017.) Nonwhite people are perceived as “mud people or preAdamic people, individuals that were not present with
[G]od’s blessing in the Garden of Eden.” (Id.)
12
According to Bechler, while “the [Christian Identity] faith itself did not advocate violence, leaders of
some . . . white supremacist organizations involved in
violence were adherents of that faith.” (Id., Page ID
# 2018) In his key testimony, Bechler said, “It is already a tense situation. A prison is a microcosm of society and racial tensions always exist in the prison.
And taking a certified step towards that would only
worsen existing racial tensions.” (Id., Page ID # 2019.)
Bechler also testified that “[a]ll prisoners and all
staff are entitled to [a] safe time in our facilities, and
part of our mission is to eliminate whatever violence
we can through the mechanisms, lawful mechanisms
that we have to do so. And minimizing racial tensions
would definitely be one of those.” (Id.) Compounding
these concerns is the fact that the prison population
consists of individuals who have difficulty “following
normal social rules.” (Id., Page ID # 2019–20.)
Adamson was an institutional chaplain with the
MDOC in 2017 and served as a member of the CAC.
(Id., Page ID # 2049–50.) While on the CAC, he participated in the recommendation against recognition
of the Christian Identity religion. (Id., Page ID
# 2050–51.) Adamson testified that, pursuant to
MDOC policy, any prisoner can join a religious group,
regardless of the prisoner’s race. (Id., Page ID # 2053.)
Accordingly, Adamson testified that if the MDOC recognized the Christian Identity religion, the MDOC
“could not exclude a non-white prisoner from attending the religious services of that group should the prisoner choose to attend.” (Id., Page ID # 2054.)
Perreault testified that, while he would not preclude non-white prisoners from attending services, he
13
would “advise any such person attending that ‘this
service has—have the emphasis on teaching the Caucasian history and heritage, Christian heritage.” (Id.,
Page ID # 2068.) Fox stated that he would “give the
non-white prisoner a warning similar to what Mr. Perreault described.” (Id., Page ID # 2077.) In contrast to
their initial testimony, in which they said that racial
segregation “is [b]iblically commanded and ordained,”
(id., Page ID # 1190–92, 1210), they now testified that
they would not exclude non-white prisoners from attending services, but would “advise any such person
attending that this service has—have the emphasis on
teaching the Caucasian history and heritage, Christian heritage,” (id., Page ID # 2068, 2077).
The district court held “[t]hat the MDOC has a
compelling interest in maintaining prison security is
beyond debate.” App. 25a (citing Cutter, 544 U.S. at
722). The court further noted that Fox and Perreault
“seek formal recognition of a faith that believes and
promotes beliefs regarding race and ethnicity that, by
their own admission, require an explicit warning to
non-adherents.” App. 27a. The district court pointed
out that “neither [Christian Identity] adherents nor
the MDOC could prohibit non-whites from attending
[Christian Identity] religious services.” (Id.) Thus, the
district court concluded, “That such a circumstance is
a recipe (if not an outright guarantee) for racially motivated disruption and violence is obvious and cannot
reasonably be disputed.” App. 27a–28a. The district
court held that the “MDOC has a compelling interest
in creating within its prisons an environment that
minimizes the likelihood of violence and disruption
and ensures the safety and well-being of staff and inmates.” App. 27a.
14
Having determined that the MDOC had a compelling interest in security and minimizing the likelihood
of racial violence, the district court then held that
denying recognition of Christian Identity was the
least restrictive means of furthering this compelling
state interest. App. 28a. Formal recognition of a faith
group is a “binary question.” (Id.) The district court
stated that the “MDOC either extends formal recognition to the [Christian Identity] faith and permits
group worship or it does not.” (Id.)
E. The Second Appeal to the Sixth Circuit
Fox and Perreault appealed, and the Sixth Circuit
again reversed, holding that because the district court
“framed the [MDOC’s] decision on whether to recognize Christian Identity as a binary choice: recognize
Christian Identity and allow group worship, or not,”
the MDOC did not consider other, less restrictive
means. Fox v. Washington, 71 F.4th 533, 538 (6th Cir.
2023) (Fox II). App. 7a. The Sixth Circuit further
opined that the binary decision matrix was imposed
by MDOC policy, holding that “[a] religious accommodation cannot be based solely on a policy.” Id. App. 8a.
Moreover, the court held that, although the MDOC
presented evidence that Christian Identity was “a racist religion that posed a potential security threat,” it
failed to present evidence that Fox and Perreault had
violent tendencies. Id. App. 9a.
The Sixth Circuit, however, did not apply the full
RLUIPA test. Having previously found a substantial
burden on Fox’s and Perreault’s religious exercise, the
Sixth Circuit should have examined the compelling
governmental interest asserted by the MDOC. Fox I,
15
949 F.3d at 277. App. 40a–41a. Instead, it declined to
address this element, stating:
Because the [MDOC] failed to show that it
used the least restrictive means in deciding
not to recognize Christian Identity, we do not
address whether doing so furthered a compelling government interest.
Fox II, 71 F.4th at 540 n.1. App. 11a n.1. The Sixth
Circuit found that the MDOC did not use the least restrictive means and remanded the case for entry of
judgment in favor of Fox and Perreault. Id. at 540.
App. 11a.
Following this decision, the MDOC moved to stay
the mandate, which the Sixth Circuit denied. (Denial
of Mot. for Stay of Mandate, 7/24/23, R. 47-2.)
16
REASONS FOR GRANTING THE PETITION
I.
By not considering the MDOC’s compelling
governmental interest in avoiding racial
unrest and violence in order to maintain
secure and safe correctional facilities, the
Sixth Circuit’s analysis disregards this
Court’s decision in Cutter v. Wilkinson.
This Court should grant the petition to consider
whether the Sixth Circuit’s truncated analysis conflicts with its RLUIPA jurisprudence. As shown below,
Fox II conflicts with this Court’s analysis in Cutter,
544 U.S. at 723 n.11, which held that correctional systems and officials have a compelling governmental interest in prison security, including “not facilitating inflammatory racist activity that could imperil prison
security and order.”
Fox II also conflicts with this Court’s decisions following Cutter and with the statutory language of
RLUIPA. And the Sixth Circuit’s decision is in tension
with other circuits’ analysis of RLUIPA, as well as the
Sixth Circuit’s own RLUIPA case law. Implicit in Cutter and its progeny is the notion that a court cannot
consider whether a government official employed the
least restrictive means without considering the nature of the compelling interest asserted by that government official. Cutter plainly held that “RLUIPA
[does not] elevate accommodation of religious observances over an institution’s need to maintain order
and safety. Our decisions indicate that an accommodation must be measured so that it does not override
other significant interests.” Id. at 722.
17
Had the Sixth Circuit considered each element of
the RLUIPA test, it would have fully credited the compelling interests asserted by the MDOC—namely
avoiding racial unrest and violence, a critical security
matter in the racially tense and violent environment
of a correctional system, which Cutter recognized as a
compelling interest.
Consideration of the nature of the compelling governmental interest is both necessary and critical because that interest informs the least restrictive means
of achieving that interest. A court cannot determine
whether the MDOC’s means are the least restrictive
absent close scrutiny of the compelling interest the
MDOC has asserted. Had it analyzed the MDOC’s decision in light of the nature of this compelling interest,
the Sixth Circuit would have concluded that the
MDOC’s “binary” decision was the least restrictive
means (because it was the only means) of achieving
the compelling governmental interest of avoiding racial unrest and violence in order to maintain safe and
secure correctional facilities for prisoners, staff, and
the public.
This case presents a question of considerable importance, and one that will recur. This Court’s answer
to that question will significantly impact the administration of prisons nationwide.
A. The least-restrictive-means element of a
RLUIPA claim cannot be analyzed
without first considering the nature of
the compelling governmental interest.
The first step of the RLUIPA test places the initial
burden on a prisoner to show that he seeks to exercise
18
a sincerely held religious belief. Holt v. Hobbs, 574
U.S. 352, 360–61 (2015). The burden on the prisoner
is minimal: “ ‘any exercise of religion, whether or not
compelled by, or central to, a system of religious belief’ ” suffices. Cutter, 544 U.S. at 715 (quoting 42
U.S.C. § 2000cc-5(7)(A)). Under the second step, the
prisoner must next demonstrate that prison officials
substantially burdened his religious exercise. Cutter,
544 U.S. at 712; Holt, 574 U.S. at 361. Pursuant to Fox
I, Fox and Perreault established both of these elements; neither are presently contested. 949 F.3d at
282–83. App. 51a–54a.
Once the prisoner has shown a substantial burden
on a sincerely held religious belief, the burden shifts
to prison officials, who must satisfy the compelling-interest inquiry. Cutter, 544 U.S. at 715. Under the
third step of the test, prison officials must show two
things. First, they must demonstrate that their policy
furthered a compelling governmental interest. Second, they must demonstrate that they used the least
restrictive means of furthering that compelling interest. Id.; Holt, 573 U.S. at 362.
In Fox II, however, the court declined to consider
the MDOC’s compelling interest in prison security by
avoiding racial unrest and violence. Fox II, 71 F.4th at
540 n.1. App. 11a n.1. Courts cannot meaningfully discuss the least-restrictive-means prong of the test
without considering the nature of the compelling-interest inquiry. This makes sense because the third
step of the three-part RLUIPA test requires the government to show that it used the least restrictive
means to achieve its asserted compelling interests. A
court cannot analyze whether the government, here
19
the MDOC, used the least restrictive means of achieving its compelling interest without first analyzing the
weight and scope of the compelling interest underlying the challenged action.
Other decisions of this Court have followed a similar approach, analyzing whether governmental officials employed the least restrictive means only after
considering the asserted compelling governmental interest.
In Holt, 574 U.S. at 363–64, the Court analyzed
the government’s compelling interest in prison safety
and security by looking at two arguments: (1) that the
prisons system’s no-beard policy prevented prisoners
from hiding contraband; and (2) that it prevented prisoners from hiding their identities. Although this
Court agreed that both of these constituted compelling
governmental interests, it nonetheless found that
banning prisoners from having beards was not the
least restrictive means. Id. at 363–67. Like the lower
court, this Court found it unlikely that contraband
could be hidden in a short, one-half inch beard, particularly where prison officials did not require prisoners
to have shaved heads or short hair cuts. Id. at 364. In
a similar vein, there were less restrictive means of
readily identifying prisoners than a blanket ban on
beards. Id. at 365–66. Thus, although this Court held
against the government, its least-restrictive-means
analysis was tailored to the compelling interests asserted by prison officials.
Likewise, in Ramirez v. Collier, 595 U.S. 411; 142
S. Ct. 1264, 1272–74 (2022), this Court confronted a
policy of the Texas Department of Criminal Justice
that prohibited a prisoner’s chosen spiritual advisor to
20
pray with, and lay hands on, the prisoner in the execution chamber. In particular, the prisoner requested
audible prayer in the execution chamber. Id. at 1275.
Prison officials asserted a “compelling interest in
monitoring an execution and responding effectively
during any potential emergency.” Id. at 1279. Although this Court found that this constituted a compelling interest, it held that there were less restrictive
means of achieving it. Id. at 1280. More specifically,
Texas’ refusal to allow audible prayer conflicted with
the practices of Alabama and the federal government,
but it offered no cogent reasons for its policy. Id. at
1279. Texas’ rationale for not allowing the spiritual
advisor to lay hands on the prisoner, because he could
accidentally interfere with the execution, similarly
failed to pass muster. Id. at 1281. For example, Texas
could have allowed the spiritual advisor to touch a
part of the body far removed from the IV lines carrying the lethal drugs. Id.
Similarly, in Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682, 688–90, 696–97, 708 (2014), this Court
scrutinized regulations implementing the birth control mandate of the Affordable Care Act, 42 U.S.C.
§ 300gg-13(a)(4), under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., which employs
a similar analysis to RLUIPA, see Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 436 (2006). In Burwell, the government asserted
the compelling interests of “ensuring that all women
have access to all FDA approved contraceptives without cost sharing.” 573 U.S. at 727. This Court, however, found that the least restrictive means of ensuring such access would be for the federal government
to directly provide the contraceptives. Id. at 729–30.
21
Furthermore, the government could have given
closely held corporations the same religion-objection
accommodation given to nonprofit organizations. Id.
at 730–31. Either way, this Court based its discussion
of the least restrictive means on the compelling government interest asserted.
The case law matches the plain language of
RLUIPA. This Court has often reiterated that, absent
an ambiguity, courts must interpret statutes according to their plain language. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010). Indeed, absent a clear indication to the contrary, this Court assumes that “legislative purpose is expressed in the ‘ordinary meaning’ ” of the statutory language. Jam v.
Int’l Fin. Corp., __ U.S. __; 139 S. Ct. 759, 769 (2019)
(quoting Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68
(1982)). The relevant language of RLUIPA contains no
ambiguity.
RLUIPA plainly prohibits governments substantially burdening a prisoner’s religious exercise unless
it meets specified criteria:
No government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution . . . even
if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that
person-(1) is in furtherance of a compelling governmental interest; and
22
(2) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). This language requires courts
to analyze each factor of the test in order, stopping
only where it concludes that the test is or is not satisfied.
To the extent a prisoner fails to establish a substantial burden on the exercise of sincerely held religious beliefs, a court need not proceed to the compelling interest test. Holt, 574 U.S. at 362. But, if a prisoner makes such a showing, the court must apply the
compelling interest test. Cutter, 544 U.S. at 715.
Under the plain language of RLUIPA, courts must
first determine whether the challenged policy furthers
a compelling government interest. If the interest asserted by prison officials is not compelling, the plaintiff would prevail, and the court would not need to determine whether prison officials used the least restrictive means. But if prison officials asserted the compelling interest of prison security, as did the MDOC, the
court would have to complete the analysis and determine whether the means used were the least restrictive in light of the interest asserted. The Sixth Circuit’s decision in Fox II sidestepped the compellinggovernmental-interest step of the test, leading to a
faulty least-restrictive-means analysis.
23
B. Because MDOC’s interest in avoiding
racial violence for purposes of prison
security
constitutes
a
compelling
governmental interest, a full analysis of
all RLUIPA factors would have led to a
different decision.
Contrary to the Sixth Circuit’s decision, consideration of the compelling governmental interest is critical because the interest asserted necessarily determines the appropriate least restrictive means of
achieving that interest. Absent that analysis, a court
cannot determine whether the government’s means
are indeed the least restrictive means of achieving
that interest.
In the present case, avoiding racial unrest and violence in order to maintain safe and secure correctional facilities constitutes a compelling interest. See
Cutter, 544 U.S. at 723 n.11 (“Courts . . . may be expected to recognize the government’s countervailing
compelling interest in not facilitating inflammatory
racist activity that could imperil prison security and
order.”); see also Holt, 574 U.S. at 362 (recognizing the
Arkansas Department of Correction’s “compelling interest in prison safety and security”). Cutter recognized the wisdom and necessity of first addressing the
compelling governmental interest because that forms
the foundation upon which the least restrictive means
must be based. But the Sixth Circuit, by proceeding to
the least-restrictive-means analysis before analyzing
the compelling security interest asserted by the
MDOC, turned Cutter on its head.
Courts have long recognized security as a compelling governmental interest because “[v]iolence is
24
unfortunately endemic to American prisons.” Murphy
v. United States, 653 F.2d 637, 642 (D.C. Cir. 1981).
Similarly, this Court has recognized that prisons are
places where violent people are housed involuntarily
and, concomitantly, that prisons experience incidents
of crime that far exceed the levels of the outside:
Prisons, by definition, are places of involuntary confinement of persons who have a
demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have
necessarily shown a lapse in ability to control
and conform their behavior to the legitimate
standards of society by the normal impulses of
self-restraint; they have shown an inability to
regulate their conduct in a way that reflects
either a respect for law or an appreciation of
the rights of others.
Hudson v. Palmer, 468 U.S. 517, 526 (1984). Prisons
are a “volatile ‘community,’ [which requires] prison
administrators . . . to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, . . . visitors [and] the inmates
themselves.” Id. at 526–27.
Similarly, this Court has recognized the role
played by prison gangs, Turner v. Safley, 482 U.S. 78,
91 (1987), including the “brutal reality” of prison
gangs “fueled by race-based hostility, and committed
to fear and violence” seeking to “control prison life” inside and outside of prison walls, Wilkinson v. Austin,
545 U.S. 209, 227 (2005). See also Dawson v. Delaware, 503 U.S. 159, 173 (1992) (Thomas, J., dissenting) (discussing dangers posed by expressly racist
gangs, such as the Aryan Brotherhood, in prisons).
25
Under these circumstances, there can be no question
that avoiding racial unrest and violence in order to
maintain safe and secure correctional facilities constitutes a compelling governmental interest.
In the present case, the MDOC presented strong
evidence in support of its compelling interest in institutional security and preventing racially motivated violence and disruption. This compelling interest is inextricably enmeshed with the least restrictive means
of achieving it, which is to deny recognition to Christian Identity. The evidence, both before and after remand, supports this conclusion.
Fox and Perreault admitted that Christian Identity is based on segregation—different races must be
kept separate, including while worshiping and cohabiting. (Trial Tr., 8/13/18, R. 141, Page ID # 1171, 1191–
93, 1210.) Fox admitted that this forms an integral
part of Christian Identity’s beliefs and practices because segregation “is [b]iblically commanded and ordained.” (Id., Page ID # 1210.) The MDOC’s evidence
showed that Christian Identity has a history of violence and “extreme racist and anti-Semitic views,”
posing a security threat to MDOC facilities. (Leach
Mem., Bench Trial Ex. A, R. 104-2, Page ID # 739,
App. 108a–109a; Trial Tr., 8/13/18, R. 141, Page ID
# 1254–57.) Based on this, McKee denied recognition
to Christian Identity “due to the threat to the custody
and security at our correctional facilities,” which is “is
first and foremost” in a correctional setting. (R. 104-2,
Page ID # 739; Trial Tr., 8/13/18, R. 141, Page ID
# 1238–39.)
Bechler, while corroborating these concerns, further emphasized that recognition of Christian
26
Identity would increase racial tensions in the prison
and provoke violence, undermining the MDOC’s ability to maintain security and to protect the safety of
inmates and staff, particularly because MDOC facilities host “a tense situation. A prison is a microcosm of
society and racial tensions always exist in the prison.
And taking a certified step towards that would only
worsen existing racial tensions.” (Hrg. Tr., 4/9/21, R.
219, Page ID # 2018–19.) Because “[a]ll prisoners and
all staff are entitled to safe time in our facilities,” the
MDOC has a compelling interest in “minimizing racial
tensions.” (Id., Page ID # 2019.) Compounding these
concerns is the fact that the prison population consists
of individuals who have difficulty “following normal
social rules.” (Id., Page ID # 2019–20.) Under these
circumstances, the only way to further the MDOC’s
compelling interest was to deny recognition to Christian Identity.
Although the Sixth Circuit faults the MDOC for
making a “binary” decision that did not take into account alternatives to recognizing Christian Identity,
Fox II, 71 F.4th at 538–39, App. 9a–11a, that conclusion did not give due deference to the professional
judgment of prison officials, see Beard v. Banks, 548
U.S. 521, 529–30 (2006). See also Hoevenaar v.
Lazaroff, 422 F.3d 366, 370 (6th Cir. 2005) (“Courts
must give due deference to the judgment of prison officials, given their expertise and the significant concerns implicated by prison regulations.”). The alternatives available to the MDOC, as shown below, did not
further its compelling interest in avoiding racial unrest and violence in order to maintain safe and secure
correctional facilities.
27
One possible alternative would have been for the
MDOC to both recognize Christian Identity and allow
for group worship, which is what Fox and Perreault
requested, arguing that group worship is part and
parcel of their faith. But allowing a racist and segregationist group to openly hold worship services would
invite racial violence, particularly because nonwhite
prisoners could choose to attend Christian Identity
services to disrupt or protest their views and practices
causing either side to erupt into violence inside or outside of the service. Bechler testified that “racial . . .
subterfuge, sabotage, things that can go on under the
guise of religion” were likely if MDOC was “into a position where we are specifying only members of certain races can attend” services. (Hrg. Tr., 4/9/21, R.
219, Page ID # 2019.)
Based on this, the MDOC argued that, if it
granted recognition to Christian Identity, it could not
“prevent nonwhites from attending” group worship
services “in bad faith to increase racial tensions.” Fox
II, 71 F.4th at 539. App. 10a. The Sixth Circuit rejected this fear because MDOC policy allows prisoners
to attend only the services of their “actual religion,”
while limiting prisoners from changing religions more
than twice per year, reasoning that prisoners would
not change their religion merely to disrupt Christian
Identity services. Id. Respectfully, this finding substitutes the court’s speculation for the professional judgment and experience of prison officials, like Bechler,
in contravention of Beard. Nothing in the policy referenced prevents nonwhite prisoners from joining
Christian Identity or the resulting potential for unrest. But should violence occur—and it will—after-
28
the-fact actions by the MDOC 1 will not and cannot
cure the damage done to prisoners and staff. Nor will
those post hoc actions necessarily insulate the MDOC
from liability for any resulting melee.
Alternatively, another option would have been for
the MDOC to have recognized Christian Identity
without allowing for group worship services. In light
of Fox and Perreault’s sincerely held religious convictions that their faith requires group worship, this approach would seem to punt the issue for later litigation. Regardless, however, the testimony showed that
even mere recognition of Christian Identity, by taking
a “certified step” towards recognizing a racist religious
group, would “worsen existing racial tensions.” (Hrg.
Tr., 4/9/21, R. 219, Page ID # 2018–19.) In the words
of the district court, recognizing Christian Identity
would “provoke violence, undermining the MDOC’s
ability to maintain security and to protect the safety
of inmates and staff.” App. 19a. Even under the demanding standards of RLUIPA, however, “[p]rison officials need not endure assaults . . . before implementing policies designed to prevent such activities in an
uneasy atmosphere. Nor do prison officials charged
with managing such a volatile environment need present evidence of actual problems to justify security
concerns.” Fowler v. Crawford, 534 F.3d 931, 939 (8th
Cir. 2008).
1 Fox and Perreault raised a similar argument in the Sixth Cir-
cuit, suggesting that the MDOC could recognize Christian Identity and allow group services and that any resulting violence
could be dealt with afterwards by designating Christian Identity
as a security threat group. (Appellants’ Br., R. 19, p. 70.) For the
reasons stated above, that argument fails.
29
Finally, the MDOC could have taken the middle
ground by recognizing Christian Identity but allowing
group worship only under conditions of heightened security. But even the presence of additional MDOC officers does not address the central problem that recognition itself would foment racial unrest and violence.
Requiring additional security would also serve as a
“drain on prison security’s manpower” during group
worship, Fowler, 534 F.3d 939, increasing security
costs, contrary to Cutter, 544 U.S. at 723 (Congress
“anticipated that courts would apply [RLUIPA’s]
standard . . . consistent with consideration of costs and
limited resources.”) (cleaned up).
Based on the evidence presented by the parties,
the MDOC faced a stark choice: certify Christian Identity and throw a match into the tense racial tinderbox
of its prisons, creating a clear and pressing risk of violence; or not recognize Christian Identity and preserve security and safety for prisoners, staff, and the
public. Thus, the least restrictive means of achieving
the compelling governmental interest of avoiding racial unrest and violence in order to maintain safe and
secure correctional facilities for prisoners, staff and
the public, was to deny recognition to Christian Identity.
And so, the district court’s holding that recognition of Christian Identity was a binary choice was
borne out as correct: no measure the MDOC could
take could adequately mitigate the serious harm that
would be caused by recognition. The only way to preserve MDOC security was to decline to recognize this
explicitly racist religion.
30
The Sixth Circuit, however, did not consider the
MDOC’s compelling interest in prison security and
avoiding racial violence. The court did not even define
the compelling governmental interest at stake. So it
follows that the court did not consider the record evidence regarding this compelling interest. As such, its
analysis of the least restrictive means was necessarily
flawed and its conclusion erroneous.
II. The Sixth Circuit’s failure to adequately
consider the MDOC’s compelling interest
and its impact on the least-restrictive-means
analysis stands in tension with the other
circuits.
The Sixth Circuit’s decision to “not address . . .
[the MDOC’s] compelling government interest,” 71
F.4th at 540 n.1 App. 11a n.1, not only contradicts this
Court’s RLUIPA analysis and the plain language of
RLUIPA itself, but also stands in tension with the
other circuit courts of appeal. No circuit has, once a
prisoner shows a substantial burden on the exercise of
a sincerely held religious belief, proceeded to analyze
the least restrictive means without first analyzing the
nature of the compelling interest asserted by prison
officials. The Fox II decision even conflicts with the
Sixth Circuit’s RLUIPA case law. Thus, it is not an
overstatement to say that the decision below conflicts
with nearly every published authority that has analyzed the issue.
31
A. The other circuit courts of appeal
analyze the compelling governmental
interest before determining whether
prison officials chose the least restrictive
means of furthering that compelling
interest.
Several circuits have expressly held that each step
of the RLUIPA test must be analyzed in order, until it
can be determined that the test is or is not satisfied.
For instance, in Al Saud v. Days, 50 F.4th 705, 713
(9th Cir. 2022), the Ninth Circuit analyzed each step
of the RLUIPA test. At the outset, the parties did not
contest that the defendants substantially burdened
his exercise of sincerely held religious beliefs, including that he only be housed with other members of the
Islamic faith. Id. at 708–09. The burden then shifted
to the defendants to show that the restrictions at issue
furthered a compelling governmental interest and
were the least restrictive means of doing so. Id. at 709.
The Ninth Circuit found that the defendants had
a compelling interest in avoiding potential equal protection liability that could arise from “classifying and
housing prisoners based on their religious beliefs and
practices.” Id. at 710–13. Only then did it analyze
whether the means chosen by the defendants were the
least restrictive means of achieving that compelling
interest. Id. at 713. Although the defendants refused
to exempt the plaintiff from their race-neutral housing policies—like in Fox II, a binary decision—this
was nonetheless the least restrictive means because
there was “no means of granting that accommodation
that would not result in discriminating against others” and implicating equal protection liability. Id.
32
Like the Ninth Circuit, the other circuits that
have analyzed RLUIPA claims, although often reaching different conclusions regarding whether prison officials chose the least restrictive means, first analyzed
whether those officials articulated a compelling interest. E,g, Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 38
(1st Cir. 2007); Williams v. Annucci, 895 F.3d 180, 188
(2d Cir. 2018); Washington v. Klem, 497 F.3d 272, 277,
284–85 (3d Cir. 2007); Greenhill v. Clarke, 944 F.3d
243, 249–50 (4th Cir. 2019); Tucker v. Collier, 906
F.3d 295, 301 (5th Cir. 2018); Schlemm v. Wall, 784
F.3d 362, 364–65 (7th Cir. 2015); Fegans v. Norris,
537 F.3d 897, 902, 907 (8th Cir. 2008); Yellowbear v.
Lampert, 741 F.3d 48, 56, 61–63 (10th Cir. 2014); Rich
v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 532–34 (11th
Cir. 2013).
Accordingly, to the extent plaintiffs show a substantial burden on the exercise of sincerely held religious beliefs, each circuit has first analyzed whether
prison officials articulated a compelling governmental
interest before determining whether those officials
chose the least restrictive means of furthering that interest. It clearly emerges that each circuit considers
the compelling governmental interest before analyzing whether prison officials used the least restrictive
means to achieve that compelling governmental interest. The only outlier is the Sixth Circuit’s decision in
Fox II.
33
B. Other circuits have found security to be
a compelling governmental interest and
have analyzed the least restrictive
means accordingly.
The Sixth Circuit’s decision to forgo analyzing the
MDOC’s compelling governmental interest question
regarding security within a prison also conflicts with
the decisions of several other circuits. For example,
Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009), held
that RLUIPA does not privilege “accommodation of religious observances” over a prison’s “need to maintain
order and safety.” (Internal citations omitted.) In
Jova, the Second Circuit affirmed the decision of
prison officials to restrict the religious observances of
two inmates to their cells rather than holding congregate services. Id. at 413, 417. The court found that this
was the least restrictive means to prevent potential
gang recruitment. Id. at 416–17.
In Murphy v. Missouri Department of Corrections,
372 F.3d 979, 988–89 (8th Cir. 2004), the Eighth Circuit held that prison security constitutes a compelling
interest and the threat of racial violence is a “valid security concern.” At issue was Missouri Department of
Corrections’ refusal to grant formal recognition of, and
group worship rights to, Christian Separatist Society,
which holds that white people are “uniquely blessed
by god and must separate themselves from all non[C]aucasian[s].” Id. at 981. According to the Court,
RLUIPA “provide[s] as much protection as possible to
prisoners’ religious rights without undermining the
security, discipline, and order of those institutions.”
Id. at 987. Prison officials must be given “a significant
degree of deference” and RLUIPA is not intended to
“overly burden prison operations.” Id.
34
This holding is by no means restricted to the
Eighth Circuit. See, e.g., Watson v. Christo, 837 F.
App’x 877, 880 (3d Cir. 2020) (“maintaining prison
safety and security is a compelling interest.”); Allah v.
Virginia, 601 F. App’x 201, 204 (4th Cir. 2015) (prison
security constitutes a compelling governmental interest); DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir.
2011) (In determining whether the state had a compelling interest and used the least restrictive means
of achieving that interest, courts must give “due deference to the experience and expertise of prison and
jail administrators in establishing necessary regulations and procedures to maintain good order, security
and discipline, consistent with consideration of costs
and limited resources.”) (internal citations omitted);
Gooden v. Crain, 353 F. App’x 885, 887–88 (5th Cir.
2009) (holding that prison had compelling interest in
security); Charles v. Frank, 101 F. App’x 634, 635 (7th
Cir. 2004) (“[S]uppressing gang activity to promote a
secure and safe prison environment is indisputably a
compelling interest.”); Van Wyhe v. Reisch, 581 F.3d
639, 657 (8th Cir. 2009) (explaining that although a
“prison must permit a reasonable opportunity for an
inmate to engage in religious activities,” it “need not
provide unlimited opportunities”); AlAmiin v. Morton,
528 F. App’x 838, 843 (10th Cir. 2013) (stating that
prison security is compelling governmental interest).
Based on this, the Sixth Circuit’s decision failed to
give due deference to, or even consider, the MDOC’s
compelling governmental interests in security, safety
and avoiding racial violence. By failing to consider the
compelling governmental interests at issue, its analysis of the least restrictive means was necessarily
flawed and in contravention of this Court’s precedent.
35
C. Other Sixth Circuit panels have analyzed
the elements of RLUIPA claims in
sequence.
Fox II’s holding not only contrasts with those from
this Court and the circuit courts of appeal, but also
conflicts with the Sixth Circuit’s own case law. See
Hoevenaar, 422 F.3d at 370 (citing Cutter, among
other cases, in holding that courts must give due deference to prison officials and cannot substitute their
own judgment for them); Coleman v. Governor of
Mich., 413 F. App’x 866, 875 (6th Cir. 2011) (citing
Cutter in holding that “[c]ourts entertaining complaints under § 3 should apply ‘due deference to the
experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources’ ” and quoting Cutter, 544 U.S. at 723).
In fact, Fox II does not comport with the Sixth Circuit’s analysis in Fox I. 949 F.3d at 277 (articulating
each of the three steps of the RLUIPA analysis). App.
41a.
Fox II also conflicts with an earlier Sixth Circuit
decision that presented facts similar to the present
case, Christian Separatist Church Society of Ohio v.
Ohio Department of Rehabilitation & Corrections, No.
18-3404, 2019 WL 1964307, at *1 (6th Cir. Feb. 13,
2019). In Christian Separatist Church Society of Ohio,
the Sixth Circuit affirmed the district court’s decision
to allow a prison to deny the Christian Separatist
Church Society from holding congregate worship services, recognizing the compelling interest that prison
officials have in “ ‘safety and security and preventing
violence.’ ” Id. at *3 (citing Cutter, 544 U.S. at 723).
36
In Christian Separatist Church Society of Ohio,
the Sixth Circuit affirmed the prison’s “effectively binary” decision because congregate worship services
would “necessarily result in racial segregation due to
the nature of the Christian Separatist faith,” even
though the prison had “not designated the Christian
Separatist Church as a security threat group.” Id. at
*3. Moreover, and contrary to the Fox II decision, the
Sixth Circuit held that “[t]he defendants did not deny
their request because Christian Separatists themselves advocate violence; rather, they did so because,
given the fundamental tenets of the faith, allowing for
congregate worship would require segregation on the
basis of race, and such segregation could fuel racial
violence within a prison setting.” Id.
The Sixth Circuit also found the plaintiffs’ request
for non-segregated services to be “disingenuous at
best” in light of their expressly segregationist religious beliefs. Id. at *4. Accordingly, by examining the
compelling interest at issue, it denied congregate worship services as “the least restrictive means available
to further [the] compelling interest in preventing racially fueled violence.” Id. It determined that doing so
was “the only way to prevent the potential harm from
such segregation was to deny the request.” Id. at *3.
But the Sixth Circuit abandoned this reasoned approach in Fox II. The result is that the decision below
conflicts with this Court’s decisions, the plain language of RLUIPA, other circuits, and the Sixth Circuit’s own decisions.
37
CONCLUSION
For these reasons, this Court should grant this petition.
Respectfully submitted,
Dana Nessel
Michigan Attorney General
Ann M. Sherman
Michigan Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628
Joshua Smith
Assistant Attorney General
Corrections Division
Dated: SEPTEMBER 2023
Attorneys for Petitioner
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