Mack v. O'Leary

• Decision Date: 08 January 1997
• Docket Number: LIPSCOMB-BE,P,Nos. 95-1331,94-1849,s. 95-1331
• Citation: 80 F.3d 1175
• Parties: John MACK, Plaintiff-Appellant, v. Michael O'LEARY, et al., Defendants-Appellees. John Leelaintiff-Appellant, v. Howard A. PETERS III, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1175

80 F.3d 1175

John MACK, Plaintiff-Appellant, v. Michael O'LEARY, et al., Defendants-Appellees.

John Lee LIPSCOMB-BEY, Plaintiff-Appellant, v. Howard A. PETERS III, et al., Defendants-Appellees.

Nos. 95-1331, 94-1849.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 29, 1996.

Decided April 3, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 8, 1997.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 621--Charles R. Norgle, Sr., Judge.

Appeal from the United States District Court for the Southern District of Illinois. Nos. 92 C 31, 92 C 55--William D. Stiehl, Judge.

John Mack (submitted), Danville, IL, Plaintiff-Appellant pro se.

Alison E. O'Hara, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees Michael F. O'Leary, Salvador A. Godinez, J. Springborn, James M. Schomig.

John L. Lipscomb-Bey (submitted), Pontiac, IL, Plaintiff-Appellant pro se.

Jessie Wang-Grimm, Office of the Attorney General, Chicago, IL, for Defendants-Appellees Howard A. Peters, III, George C. Welborn, Alan L. Frentzel, Leo Hayes.

Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.

POSNER, Chief Judge.

We have consolidated for decision appeals by two Illinois state prisoners from the dismissal of their suits against prison officials in which they seek damages for alleged infringements of religious liberty. The appeals require us to consider for the first time the meaning of the term "substantially burden a person's exercise of religion," which is the key term in the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb.

No. 95-1331. Ramadan is a 30-day period, analogous to Lent, but much more rigorous, during which votaries of Islam are required to engage in fasting and other prescribed acts of abstinence and in which ritual duties, including prayer and purification, are to be discharged with the utmost punctiliousness. According to Mack's complaint, the factual allegations of which we must accept because the suit was dismissed for failure to state a claim, the defendants during Ramadan 1992 and 1993 refused to accommodate the religious needs of Mack and the other Muslim inmates of Stateville prison. The Muslims were forced to have their dinner (a ritual occasion during Ramadan, because fasting is required from sunrise to sunset) in the prison's mess hall immediately after the rest of the prison population had had its dinner. So there was no time to clean the floor, which was filthy from the previous diners, and as a result the Muslims were unable to prostrate themselves for prayer during the prayer intervals in their meal. The manner in which the tables in the mess hall were bolted to the wall, moreover, made it impossible for the diners to sit facing Mecca or to pray in the prescribed close formation. And because the mess hall lacked running water, the diners could not perform ritual purification (wudu) during their meals, which might become necessary if a diner defiled himself during the meal, for example by breaking wind.

The district judge did not think that these allegations demonstrated a substantial burden on the Muslims' exercise of their religion. "The alleged restrictions imposed by the physical limitations of the facility may interfere with the desired method of prayer," he said, "but the restrictions do not trespass upon Mack's ability to retain and worship the principle that is central to Islam." In support of the judge's ruling, the defendants ask us to distinguish between a substantial burden and a mere inconvenience, and they argue that what Mack alleges is clearly the latter.

Mack is seeking only damages by way of relief, and has named only prison officials, and not the State of Illinois, as defendants. The defendants do not raise a defense of qualified immunity. They also do not question the propriety of damages as a remedy for violations of the Act, even though the Religious Freedom Restoration Act says nothing about remedies except that a person whose rights under the Act are violated "may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c) (emphasis added). (Previous decisions have assumed rather than discussed the availability of damages under the Act. See, e.g., Brown v. Hot, Sexy & Safer Productions, Inc., 68 F.3d 525, 537-38 (1st Cir.1995).) Although there is no indication of congressional intent to abrogate the states' Eleventh Amendment immunity from suit (another issue not discussed in previous cases), the Act defines "government" to include government employees acting under color of state law. § 2000bb-2(1). So Mack was entitled to sue the prison officials rather than the State of Illinois and does not face the bar of the Eleventh Amendment.

No. 94-1849. Lipscomb-Bey (who unlike Mack sought injunctive relief as well as damages in the district court) belongs to a religious sect known as the Moorish Science Temple of America. "Moors," as the adherents to the sect are known, celebrate January 8, the birthday of their founder, Drew Ali, with a Prophet's Day banquet. The Moors imprisoned in Menard requested but were refused permission to have such a banquet. The prison has grouped the more than 300 religious denominations represented at Menard (a number hard to believe, but not contested) into four umbrella groups--Catholic, Jewish, Muslim, and Protestant--each of which is allowed one or two picnic days a year, which they can use for a sacred feast. No separate denomination is allowed its own picnic day. The prison classifies the Moors as Muslims, but they are pretty sui generis. They have a sacred book that they call the "Koran," but it is not the Islamic Koran, and while they respect Mohammed, along with Jesus and others, as prophets, they give primacy to their own prophet, Drew Ali. They are permitted to and do conduct their own religious services at Menard.

Lipscomb-Bey, unlike Mack, was given an evidentiary hearing on his claim that his religious rights were infringed by the refusal to allow the Moors to hold a banquet. At the hearing, the national leader of the Moors, Grand Sheikh Robert Love-El, testified that a Prophet's Day banquet was an important but not a required rite of the Moorish Science Temple. Officials of Menard testified that it would be utterly impractical to allow each of the 300 denominations to have its own feast day. The district court gave judgment for the defendants.

The Religious Freedom Restoration Act provides that "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 government interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b). The Supreme Court had held in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that a law of general applicability (there a law, similar to the federal drug laws, regulating the sale and use of certain "controlled substances") can be enforced against religiously motivated conduct (there the use of peyote as part of the religious rituals of an American Indian tribe) without infringing the free exercise clause of the First Amendment. The Act, the constitutionality of which is not questioned in either of these cases (and see Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.1996), upholding the Act as a valid exercise of Congress's powers under section 5 of the Fourteenth Amendment)--or its applicability to prison inmates (see, e.g., Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir.1996))--enlarges the free-exercise right beyond the constitutional bounds set forth in Smith. "Congress by RFRA is demanding ad hoc review of laws of general applicability that substantially burden the free exercise of religion" but do not violate the Constitution as authoritatively interpreted in Smith. Flores v. City of Boerne, supra, 73 F.3d at 1361.

How far beyond? That is the question, and the circuits have answered it in different ways. The Fourth, Ninth, and Eleventh Circuits define "substantial burden" as one that either compels the religious adherent to engage in conduct that his religion forbids (such as eating pork, for a Muslim or Jew) or forbids him to engage in conduct that his religion requires (such as prayer). Goodall by Goodall v. Stafford County School Board, 60 F.3d 168, 172-73 (4th Cir.1995); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir.1995); Bryant v. Gomez, 46 F.3d 948 (9th Cir.1995) (per curiam). The Eighth and Tenth Circuits use a broader definition--action that forces religious adherents "to refrain from religiously motivated conduct," Brown-El v. Harris, 26 F.3d 68, 70 (8th Cir.1994), or that "significantly inhibit[s] or constrain[s] conduct or expression that manifests some central tenet of a [person's] individual beliefs," Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir.1995), imposes a substantial burden on the exercise of the individual's religion. The Sixth Circuit seems to straddle this divide, asking whether the burdened practice is "essential" or "fundamental," Abdur-Rahman v. Michigan Dept. of Corrections, 65 F.3d 489, 491-92 (6th Cir.1995).

These verbal differences may be accidental, or may come to nothing in practice. None of the cases that we have cited expresses an awareness of an intercircuit split; nor is it clear that any of the holdings (as distinct from many of the dicta) are inconsistent. But we do think that the more generous definition is more faithful both to the statutory language and to the approach that the courts took before Smith, in cases like Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Thomas v. Review Board, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 1431-32, 67 L.Ed.2d 624 (1981)--which is the...