Sasnett v. Litscher, Sec. Wisconsin Dept Corrections, 99-1502

• Decision Date: 23 November 1999
• Docket Number: No. 99-1502,99-1502
• Citation: 197 F.3d 290
• Parties: (7th Cir. 1999) Sylvester Sasnett, et al., Plaintiffs-Appellants, v. Jon E. Litscher, Secretary of the Wisconsin Department of Corrections, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 290

197 F.3d 290 (7th Cir. 1999)

Sylvester Sasnett, et al., Plaintiffs-Appellants, v. Jon E. Litscher, Secretary of the Wisconsin Department of Corrections, et al., Defendants-Appellees.

No. 99-1502

In the United States Court of Appeals For the Seventh Circuit

Argued October 5, 1999

Decided November 23, 1999

Appeal from the United States District Court for the Western District of Wisconsin. No. 94 C 52--Barbara B. Crabb, Judge.

Before Posner, Chief Judge, and Eschbach and Evans, Circuit Judges.

Posner, Chief Judge.

The plaintiffs, who are Protestant inmates of Wisconsin prisons, brought this suit under the Religious Freedom Restoration Act, 42 U.S.C. sec.sec. 2000bb et seq., and under various clauses of the U.S. and Wisconsin constitutions, seeking to enjoin a state prison regulation, IMP 1-D, that forbade them to possess crosses. We held that the regulation violated RFRA, and we did not reach the other theories of violation. Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996). Shortly afterward, however, the Supreme Court held RFRA unconstitutional, City of Boerne v. Flores, 521 U.S. 507 (1997), and remanded our case for further consideration in light of City of Boerne, and we in turn remanded to the district court to decide the plaintiffs' other claims, which were based on the First Amendment. The district court then granted summary judgment for the defendants, holding that the challenged regulation did not interfere with the plaintiffs' free exercise of their religion and dismissing as duplicative the plaintiffs' alternative theory that the regulation violated their freedom of speech.

There is a jurisdictional question--whether the suit has become moot as a result of the replacement of IMP 1-D by a new prison regulation, IMP 6-K, which allows inmates to possess crosses. It has not. The new regulation was adopted after the district court, in the first round of this litigation, held that the old regulation violated RFRA. Even after the new regulation was in force, the defendants continued to pursue the litigation by asking the Supreme Court to review our decision invalidating the old regulation. So they didn't think the suit had been mooted by the adoption of the new regulation, which implies that they wanted to go back to the old one. Maybe they just wished to have the latitude to do so if circumstances changed; and in their briefs and at argument their lawyer told us that the state has no present intention of reinstating the old regulation if the district court's decision dismissing the suit is affirmed. But that is far from being an assurance, or even a prediction, that the state will not do so. The state vigorously defends the old regulation as justified by security concerns, and if this defense is sincere, as we have no reason to doubt that it is, it implies a high likelihood of returning to the old regulation unless that regulation is enjoined. The probability of such a return is sufficiently high to prevent us from deeming the case moot. Northeastern Florida Chapter v. City of Jacksonville, 508 U.S. 656, 661-62 (1993); Rembert v. Sheahan, 62 F.3d 937, 941 (7th Cir. 1995).

The briefs debate the issue whether the merits of the plaintiffs' free-exercise claim are governed by Turner v. Safely, 482 U.S. 78 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), or by Employment Division v. Smith, 494 U.S. 872 (1990). The first two decisions hold that regulations of religious observance by prison inmates must be reasonable to pass constitutional muster, and the third that a bona fide secular regulation is not unconstitutional merely because it burdens religious observance. Turner and O'Lone can thus be interpreted to require prison authorities to make a reasonable accommodation to the inmates' religious desires, but Smith cannot be. Smith is the later decision, but it was not a prison case and it did not purport to overrule or limit Turner and O'Lone; and the Supreme Court has instructed us to leave the overruling of its decisions to it. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Agostini v. Felton, 521 U.S. 203, 237 (1997); Commodity Trend Service, Inc. v. Commodity Futures Trading Com'n, 149 F.3d 679, 684 (7th Cir. 1998).

The plaintiffs threw in a free-speech claim on remand in an effort to get around Smith. That won't wash. While it is true that the wearing of a cross, like most other forms of religious observance, is public and so in a sense expressive, and while it is also true that religion has figured in some notable free-speech cases, such as West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which invalidated a requirement that Jehovah's Witnesses salute the American...