Besh v. Bradley

• Decision Date: 17 February 1995
• Docket Number: No. 94-5124,94-5124
• Citation: 47 F.3d 1167
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Deelicho BESH, David Poe, Terry D. Barber and Edward Jerome Harbison, Plaintiffs-Appellants, v. Christine BRADLEY and Michael Dutton, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1167

47 F.3d 1167

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Deelicho BESH, David Poe, Terry D. Barber and Edward Jerome

Harbison, Plaintiffs-Appellants, v. Christine BRADLEY and Michael Dutton, Defendants-Appellees.

No. 94-5124.

United States Court of Appeals, Sixth Circuit.

Feb. 17, 1995.

On Appeal from the United States District Court for the Middle District of Tennessee; No. 90-01018, Thomas A. Higgins, J.

M.D.Tenn.

VACATED AND REMANDED.

Before: NELSON and NORRIS, Circuit Judges, and BELL, District Judge. ¹

PER CURIAM.

This is a civil rights case that is based on the Free Exercise Clause of the First Amendment. The plaintiffs are prison inmates on Tennessee's death row. The defendants are prison officials.

The complaint alleges that one of the plaintiffs, Deelicho Besh, is a Native American Indian. About seven years after he was sentenced to death, according to the complaint, Mr. Besh began (with help from a practitioner of the Native American religion and an agent of the "XAT AMERICAN INDIAN MEDICINE SOCIETY") to participate in Native American religious ceremonies. In 1986 he "took up Religious Duty as Keeper of Sacred Pipe." The remaining plaintiffs--who are not identified in the complaint as Indians--are said to have joined "Native American religious circle" at various times between January of 1988 and February of 1990.

The plaintiffs say that although they are constrained by their religion to engage in sweat lodge ceremonies, to wear Native American clothing, to smoke sacred herbs and possess prayer blankets in their cells, and to hold private religious services under the auspices of a religious leader more frequently than once a week, the defendants have not allowed them to do these things. In affidavits presented in support of a motion by the defendants for summary judgment (which motion was granted in part on July 16, 1992) and in evidence presented at a trial, held on October 5-6, 1993, of two issues as to which summary judgment was not granted, the defendants presented a variety of reasons, focused on security concerns, for not indulging the plaintiffs' wishes.

The district court entered final judgment in favor of the defendants on December 16, 1993. Relying in part on O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)--a decision teaching that "prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights," id. at 349--the court found that the challenged prison policies were reasonably related to legitimate penalogical objectives.

The Religious Freedom Restoration Act of 1993, Pub.L. 103-141, became law on November 16, 1993. As codified at 42 U.S.C. Sec. 2000bb, the Act provides in Sec. 2000bb-1(a) that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section." Subsection (b) provides as follows:

"Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest."

By its terms the Act applies "to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993." 42 U.S.C. Sec. 2000bb-3(a).

The Act does not create an exception as to people in prison. The pertinent report of the Senate Judiciary Committee, in a section captioned "APPLICATION OF THE ACT TO PRISONERS' FREE EXERCISE CLAIMS," says among...