Levitan v. Ashcroft, 00-5346.

• Decision Date: 08 March 2002
• Docket Number: No. 00-5346.,00-5346.
• Citation: 281 F.3d 1313
• Parties: Daniel J. LEVITAN and Vincent L. Leonardo, Appellants, v. John D. ASHCROFT, Attorney General, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

281 F.3d 1313

Daniel J. LEVITAN and Vincent L. Leonardo, Appellants, v. John D. ASHCROFT, Attorney General, et al., Appellees.

No. 00-5346.

United States Court of Appeals, District of Columbia Circuit.

Argued January 17, 2002.

Decided March 8, 2002.

Appeal from the United States District Court for the District of Columbia (No. 99cv00017).

Michael J. Golden, appointed by the court, argued the cause as amicus curiae on the side of appellants. With him on the briefs was Richard P. Bress.

G. Michael Harvey, Assistant United States Attorney, argued the cause for appellees. With him on the brief were Roscoe C. Howard Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney. David T. Smorodin, Assistant United States Attorney, entered an appearance.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellants are federal prisoners who are practicing Catholic Christians. They challenge a prison rule preventing them from consuming small amounts of wine as part of the Catholic sacrament known as Communion. In the past, prison officials have allowed inmates to consume wine under supervision during Communion. Under the new rule, however, only the supervising chaplain is permitted to consume the wine. Appellants claim that this prohibition violates their constitutional rights under the free exercise clause of the First Amendment.

A prison regulation that impinges on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). In this case, the District Court granted summary judgment for the prison officials on the ground that consuming wine during Communion is not an essential aspect of appellants' religious practice, one "which the believer may not violate at peril of his soul." Levitan v. Reno, Civ. Action No. 99-0017, Mem. Op. at 8 (D.D.C. Aug. 3, 2000) ("Mem. Op.") (quoting Ward v. Walsh, 1 F.3d 873, 878 (9th Cir.1993)), reprinted in Joint Appendix ("J.A.") 22. In reaching this result, the District Court erred in holding that, to qualify for protection under the First Amendment, a religious practice must be mandated by the prisoners' religion. This holding finds no support in our case law. The District Court also failed to perform the balancing analysis required by Turner and O'Lone.

We therefore reverse and remand the case to the District Court for further proceedings.

I. Background

Appellants are incarcerated at the Federal Prison Camp in Pensacola, Florida ("the prison"). They are self-described Catholic Christians who were baptized as children. See Decl. of Daniel J. Levitan ("Levitan Decl.") ¶ 1, reprinted in J.A. 69; Decl. of Vincent Leonardo ("Leonardo Decl.") ¶ 1, reprinted in J.A. 75. As part of their religion, they practice the Eucharist sacrament, which is also called Holy Communion. Levitan Decl. ¶ 7, reprinted in J.A. 70; Leonardo Decl. ¶ 4, reprinted in J.A. 76. Communion is traditionally administered by a priest. After the priest consecrates bread and wine (sometimes called "species" or "forms"), appellants believe that the bread transforms into the body of Jesus Christ, their Messiah and Lord, and that the wine transforms into his blood. This transformation is called transubstantiation. Am. Compl. for Declaratory J. and Temporary and Permanent Injunctive Relief ("Am. Compl.") ¶ 28, reprinted in J.A. 31.

According to appellants' long-standing practice, after the consecration, the priest, as well as the congregants, consume the transubstantiated bread and wine. Levitan Decl. ¶ 7, reprinted in J.A. 70; Leonardo Decl. ¶ 4, reprinted in J.A. 76; Am. Compl. ¶ 28, reprinted in J.A. 31. The priest can present the wine using several methods, including the chalice (congregants sip directly from a cup the priest holds), the spoon (congregants use a spoon to sip from a cup the priest holds), the straw (congregants sip through a straw from a cup the priest holds), and intinction (congregants dip the transubstantiated bread into the wine and then eat the bread). See Br. of Amicus Curiae on Behalf of Appellants ("Br. of Appellants") at 5 n.7. In their complaint, appellants stated their belief that it was "the command of the Lord Jesus Christ to consume both bread and wine" during the Eucharist sacrament. Am. Compl. ¶ 33, reprinted in J.A. 32. They further stated that the liturgical life of their church "revolves around" the Eucharist ritual. Id. ¶ 31.

Federal law has long prohibited prisoners from consuming alcohol. See 18 U.S.C. § 1791 (2000) (setting forth punishments for possessing contraband, including alcohol, in prison); 28 C.F.R. § 541.13 (2000) (making possession and use of alcohol in federal prisons sanctionable). Until recently, however, prison officials have permitted the chaplain to administer small amounts of wine to Catholic inmates during Communion, through intinction, with precautions. Levitan Decl. ¶¶ 3-4, reprinted in J.A. 69-70; Leonardo Decl. ¶ 3, reprinted in J.A. 75-76; Am. Compl. ¶ 3, reprinted in J.A. 24. In 1997, however, the United States Department of Justice, Bureau of Prisons ("BOP") issued Program Statement Number 5360.07, relating to "Religious Beliefs and Practices." BOP Program Statement No. 5360.07 (Aug. 25, 1997), reprinted in J.A. 44. Paragraph 19 deals with sacramental wine. It provides in relevant part:

Sacramental wine is necessary for the worship of some faith groups, i.e., the requirements of the ritual cannot be satisfied without the use of wine. In those cases only, the staff or contract chaplain may consume small amounts of wine for performance of the ritual.

Id. ¶ 19, reprinted in J.A. 45. There is no provision in the rule allowing prisoners to consume wine under any circumstances. Since the policy was implemented in mid-1998, appellants have been prevented from consuming wine during Communion. Instead, the prison chaplain consumes the wine himself, while the inmates consume only the bread. Levitan Decl. ¶¶ 4-6, reprinted in J.A. 70; Leonardo Decl. ¶ 3, reprinted in J.A. 76.

Appellant Daniel Levitan, acting pro se, brought suit against the Attorney General and the Director of the BOP (collectively, "the Government"), alleging that the Program Statement violated his First and Fifth Amendment rights. He subsequently amended his complaint to add additional plaintiffs, all of whom were then inmates at the prison. Appellants did not allege violations of the Religious Freedom Restoration Act (RFRA) as amended, 42 U.S.C.A. § 2000bb-1 et seq. (1994 & Supp. 2001). They have indicated, however, that they will seek to amend their complaint to add allegations under RFRA if the case is remanded. Br. of Appellants at 19 n.14.

Appellees moved for summary judgment before the District Court. In support of their motion, appellees submitted the declaration of Susan VanBaalen, a Catholic nun with degrees in divinity and theology, who was employed by the BOP. Decl. of Susan VanBaalen ("VanBaalen Decl."), reprinted in J.A. 50-52. In her declaration, Sister VanBaalen contended that the Catholic religion does not require congregants to consume the wine during Communion. Rather, Sister VanBaalen asserted that those who receive Communion under the form of bread alone "are not deprived of any grace necessary for salvation," id. ¶ 3 reprinted in J.A. 51, and that consuming the bread alone is rooted in a long tradition that the Church recognizes as one of the ways in which Communion may be received, id. ¶ 5. Sister VanBaalen also stated that Communion "has a more complete form as a sign when it is received under the forms of both bread and wine." Id. ¶ 4. Appellees also obtained a letter to the same effect from the Roman Catholic Bishop of the Diocese in which the prison is located. Letter from Most Reverend John H. Ricard, S.S.J. to Sister Susan VanBaalen (Aug. 3, 1999), reprinted in J.A. 60-61. The Bishop noted that a number of Catholic parishes in his Diocese offer parishioners Communion without wine for the congregants. Id.

The District Court granted appellees' motion for summary judgment. See Levitan v. Reno, Civ. Action No. 99-0017 (Judgment) (D.D.C. Aug. 3, 2000), reprinted in J.A. 14. In its accompanying memorandum opinion, the District Court acknowledged that "correctional institutions may be required to accommodate the religious beliefs and practices of inmates," because prisoners retain the right to freedom of religion. Mem. Op. at 5, reprinted in J.A. 19. The District Court recited the established test that a prisoner's right to observe his religion in prison may be circumscribed when the infringement is reasonably related to a legitimate penological interest. Id. (citing O'Lone, 482 U.S. at 348, 107 S.Ct. at 2404). The court also listed the factors used to determine the reasonableness of restrictions on prisoners' rights as set forth in Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-62. Id. It noted that the prison officials had not provided any justification for the changed policy regarding inmates' consumption of wine during Communion. Id. at 6, reprinted in J.A. 20. The court declined, however, to apply the Turner factors or to make the O'Lone determination.

The District Court instead determined, relying on Sister VanBaalen's declaration, that appellants had not claimed that they were deprived of "a vital part of their religion." Id. at 8, reprinted in J.A. 22. The court distinguished between "a religious practice which is a positive expression of belief and a religious commandment which the believer may not violate at peril of his soul." Id. (quoting Walsh, 1 F.3d at 878). The court finally found that appellants had failed to show that the BOP rule prevented them from participating in "an essential aspect of their faiths'...