Kilaab al Ghashiyah v. Depart. of Corr. of Wisc.

• Decision Date: 04 March 2003
• Docket Number: No. 01-C-10.,01-C-10.
• Citation: 250 F.Supp.2d 1016
• Parties: Tayr KILAAB AL GHASHIYAH (KHAN) formerly known as John Casteel, Plaintiff, and United States of America, Plaintiff-Intervenor, v. DEPARTMENT OF CORRECTIONS OF THE STATE OF WISCONSIN, Jon E. Litscher, Daniel Bertrand, Michael Baenen, Kenneth Morgan, Christopher Ellerd, Judy Smith, Gary McCaughtry, Gene Dobberstein, and Phillip Macht, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

250 F.Supp.2d 1016

Tayr KILAAB AL GHASHIYAH (KHAN) formerly known as John Casteel, Plaintiff, and United States of America, Plaintiff-Intervenor, v. DEPARTMENT OF CORRECTIONS OF THE STATE OF WISCONSIN, Jon E. Litscher, Daniel Bertrand, Michael Baenen, Kenneth Morgan, Christopher Ellerd, Judy Smith, Gary McCaughtry, Gene Dobberstein, and Phillip Macht, Defendants.

No. 01-C-10.

United States District Court, E.D. Wisconsin.

March 4, 2003.

Tayr Kilaab Al Ghashiyah, pro se.

Andrea Baker, Diane Kelleher, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff Tayr Kilaab al Ghashiyah (Khan), a Muslim formerly known as John Casteel and currently a prisoner at the Green Bay Correctional Institution (GBCI), filed this pro se civil rights action under 42 U.S.C. § 1983 against the Wisconsin Department of Corrections (DOC) and various corrections officials and employees. Following a screening of the complaint pursuant to 42 U.S.C. § 1915A, plaintiff was allowed to proceed on claims that defendants violated his rights under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a), et. seq., by failing to accommodate his religious dietary requirements; denying him the use and possession of candles, incense, oils, and religious talismans; and prohibiting him from using his legal (Muslim) name.

Defendants have moved to dismiss, arguing that (1) RLUIPA is unconstitutional, (2) the deprivation of incendiary materials such as candles, incense, and oil does not violate the First Amendment, and (3) the individual defendants are entitled to qualified immunity. Because the constitutionality of a federal statute had been challenged, I allowed the United States of America to intervene in defense of RLUIPA. The issues have been fully briefed and are ready for decision.

I. CONSTITUTIONALITY OF RLUIPA

Defendants contend that RLUIPA is unconstitutional because it violates the separation of powers doctrine, exceeds Congress's enforcement power under Section Five of the Fourteenth Amendment, is not applicable to state prisoners' claims against state prison officials, violates the Establishment Clause, and is not a valid exercise of Congress's power under the Commerce and Spending Clauses. The United States counters that RLUIPA is a constitutional exercise of Congress's power under the Spending and Commerce Clauses, and that it does not violate any other constitutional provision or doctrine.

Before turning to the specific arguments, it is appropriate to set forth the events leading to the passage of RLUIPA, because the reasons for its enactment bear directly on its constitutionality.

A. Background of RLUIPA

In 1990, the Supreme Court held, in Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that "the right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Id. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring)).

The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself— contradicts both constitutional tradition and common sense.

Id. at 885, 110 S.Ct. 1595 (internal quotation marks and citations omitted).

Prior to Smith, the Supreme Court had held that laws substantially affecting the practice of religion were subject to strict constitutional scrutiny. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (reversing denial of unemployment compensation benefits to employee terminated for refusing to work on her religious Sabbath day).¹ Under the Sherbert standard, state actions that substantially burdened a religious practice had to be justified by a compelling governmental interest. 374 U.S. at 402-03, 83 S.Gt. 1790. In Smith, the Court rejected this test, holding "that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." City ofBoerne v. Flores, 521 U.S. 507, 514, 117 S.Ct. 2157,138 L.Ed.2d 624 (1997).

In response to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq., pursuant to its enforcement powers under Section Five of the Fourteenth Amendment.² RFRA's stated purposes were:

(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. 42 U.S.C. § 2000bb(b). RFRA prohibited government from substantially burdening a person's exercise of religion, even if the burden resulted from a rule of general applicability, unless the government could demonstrate that the burden was imposed in furtherance of a compelling governmental interest and was the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1.

Four years later, the Supreme Court responded to this legislative effort to overrule Smith by striking down RFRA as an act in excess of congressional power under § 5. City ofBoerne, 521 U.S. at 536, 117 S.Ct. 2157. Congress's power under § 5 is "remedial" and extends only to enforcing the provisions of the Fourteenth Amendment, the Court noted; Congress may not through legislation alter the meaning of the substantive rights guaranteed by the Amendment. Id. at 518-19, 117 S.Ct. 2157. But, the Court concluded, that is exactly what Congress tried to do with RFRA, effecting a substantive change in the meaning of the Free Exercise Clause as construed by the Court in Smith. Id. at 532-36, 117 S.Ct. 2157.

In a concurring opinion, Justice Stevens stated:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a "law respecting an establishment of religion" that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52-55, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).

Id. at 536-37, 117 S.Ct. 2157 (Stevens, J., concurring).

Congress then passed RLUIPA in 2000,³ limiting the scope of the Act's coverage but using the same strict scrutiny standard as in RFRA. The Act provides in relevant part:

(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.

42 U.S.C. § 2000cc-1(a).⁴

If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2 [42 USCS § 2000cc], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiffs exercise of religion.

42 U.S.C. § 2000cc-2(b).

Congress used its power under the Commerce and Spending Clauses to enact RLUIPA. See 42 U.S.C. § 2000cc-1(b). The Act is to be construed broadly to favor the protection of inmates' religious exercise. 42 U.S.C. § 2000cc-3(g).

A number of courts have addressed the issue of whether RLUIPA is constitutional; most have held that it is. E.g., Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.2002); Johnson v. Martin, 223 F.Supp.2d 820 (W.D.Mich.2002); Gerhardt v. Lazaroff, 221 F.Supp.2d 827 (S.D.Ohio 2002); Charles v. Verhagen, 220 F.Supp.2d 955 (W.D.Wis.2002). However, one court has recently held that the section of RLUIPA governing the claims of prison inmates, 42 U.S.C. § 2000cc-1, violates the Establishment Clause. Madison v. Riter, 240 F.Supp.2d 566 (W.D.Va.2003). Because the Establishment Clause challenge is the most significant of defendants' challenges to RLUIPA, particularly in light of Justice Stevens's concurrence in City of Boerne, it is appropriate to begin my analysis of the constitutionality of RLUIPA by...