GERALD L. BELGARD, Plaintiff, v. STATE OF HAWAII, GEORGE SUMNER, Director of Public Safety; JOHN SMYTHE, Warden, Halawa Correctional Facility, and JOHN VAUGHN, Chaplain, Defendants.



CIV. NO. 93-00961 HG



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII



883 F. Supp. 510; 1995 U.S. Dist. LEXIS 4903



February 3, 1995, Decided

February 3, 1995, FILED







PRIOR HISTORY: [**1] Adopting Magistrate's Document of November 29, 1994, Reported at: 1994 U.S. Dist. LEXIS 20131.









COUNSEL: For plaintiff: Gerald L. Belgard, PRO SE, HCF, Halawa Correctional Facility, Aiea, HI. Howard G. McPherson, Law Offices of Howard G. McPherson, Honolulu, HI.


For HAWAII, STATE OF, defendant: Frank D.J. Kim, Deputy Attorney Gen, Robert A. Marks, Office of the Attorney General, State of Hawaii, Honolulu, HI. For GEORGE SUMNER, Public Safety Dept. Director, defendant: Frank D.J. Kim, Deputy Attorney Gen, Robert A. Marks, Thomas D. Farrell, Office of the Attorney General, State of Hawaii, Honolulu, HI. For JOHN VAUGHN, Chaplain, defendant: Michael S. Vincent, Office of the Attorney General, State of Hawaii, Honolulu, HI.



JUDGES: HELEN GILLMOR, United States District Judge, Francis I. Yamashita, Magistrate Judge



OPINIONBY: HELEN GILLMOR



OPINION:

[*511] ORDER ADOPTING FINDINGS AND RECOMMENDATION OF THE MAGISTRATE

Defendants the State of Hawaii, George Sumner, Director of Public Safety for the State of Hawaii, John Smythe, Warden of Halawa Correctional Facility (HCF), and John Vaughn, HCF Chaplain (collectively referred to herein as "Hawaii" or "Defendants"), object to Magistrate Judge Francis I. Yamashita's Findings and Recommendation filed herein on November 29, 1994. The Court adopts these Findings and [**2] Recommendation in part.

I. BACKGROUND

Plaintiff Gerald Belgard, a full-blooded American Indian and inmate at HCF, contends that he is a follower and practitioner of a traditional Native American religion whose rituals entail use of medicine bags, eagle feathers, sweet grass and sage. Proceeding pro se on December 16, 1993, Belgard filed civil rights claims under 42 U.S.C. § 1983 against the Defendants alleging that they violated his First Amendment right to free exercise of religion under the United States Constitution by: (i) depriving him of religious items (viz., a medicine bag and eagle feathers) (count I); (ii) forcing him to cut his hair (count II); and (iii) denying him access to his religious counselor (count III). Plaintiff also requested a temporary restraining [*512] order to enjoin such conduct by prison officials pursuant to Federal Rule of Civil Procedure 65(b).

On January 5, 1994, Magistrate Judge Francis I. Yamashita filed Findings and Recommendations (F&R I) recommending that the district court dismiss counts I and II. Magistrate Yamashita granted Belgard leave to proceed in forma pauperis as to count III.

On January 16, 1994, plaintiff filed objections to F&R I on the [**3] basis that Magistrate Yamashita ignored the newly-passed Religious Freedom Restoration Act of 1993, 42 U.S.C. § § 2000bb, et seq. (RFRA). The RFRA "is of historical and legal significance because it reinstates the 'compelling state interest' standard to free exercise of religion claims previously eviscerated by the Supreme Court's decision in Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990)." Campos v. Coughlin, 854 F. Supp. 194, 204 (S.D.N.Y. 1994). In an order filed March 3, 1994, federal district judge David A. Ezra declined to adopt F&R I and remanded for further evidentiary hearing "in view of the heightened level of scrutiny afforded under the [RFRA]."

On November 29, 1994, Magistrate Yamashita issued a second Findings and Recommendation (F&R II). In F&R II, Magistrate Yamashita recommended that Belgard's motion for a temporary restraining order be denied because (i) Hawaii submitted a memorandum dated November 26, 1993 indicating that Belgard would be exempted from prison hair length regulations pending resolution of his legal claims; (ii) Belgard had been given access to religious counselors; [**4] and (iii) Defendants had replaced religious articles destroyed during Belgard's transfer to HCF and permitted him to use and store them in the inmate chapel. On this basis, Magistrate Yamashita found that "the threat of injury is not so immediate and irreparable as to require injunctive relief." F&R II at 6.

Magistrate Yamashita declined to consider a challenge to the constitutionality of RFRA raised in Hawaii's Memorandum in Opposition to Plaintiff's Motion for Temporary Restraining Order. In doing so, Magistrate Yamashita noted that Hawaii's extensive treatment of the constitutional issues was not a succinct response to the submissions requested by the magistrate judge from the parties. In view of the numerous filings and burdens imposed on his docket "in this area", Magistrate Yamashita warned Hawaii that "sanctions could be imposed for improper submittals." F&R II at 4. Hawaii objects to this portion of F&R II.

II. STANDARD OF REVIEW

Any party may object to a magistrate judge's findings and recommendation. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. Proc. 72(b); Local Rule 404-2. A district court reviews the magistrate judge's findings and recommendations de novo and may accept, [**5] reject or modify the findings and recommendations in whole or in part. Local Rule 404-2.

III. DISCUSSION


A. The Constitutionality of the RFRA

Hawaii objects to Magistrate Yamashita's "recommendation to revive" counts I and II, pertaining to hair length and religious articles respectively. They contend that:


RFRA is unconstitutional, and accordingly, the orignal [sic] decision to dismiss for failure to state a claim is correct. If the only thing that has changed since the original decision is the injection of RFRA, defendants do not see how the Court can refuse to rule on defendant's claim that RFRA is unconstitutional. This Court should address the issue (particularly before trial, so that defendants can know what claims will be tried and what will be the applicable standard on which they must defend their policies).


Defendants' Objections to F&R II at 2.

Pursuant to F&R II, Magistrate Yamashita reversed his recommendation that counts I and II be dismissed as frivolous claims. Magistrate Yamashita specifically states that, "based on the application of heightened scrutiny, this Court finds that dismissal of Plaintiff's claims under 28 U.S.C. § 1915 is [**6] not appropriate at this time." F&R II at 4. Insofar as this reversal was plainly premised on the reinstatement of [*513] strict scrutiny in the context of alleged restrictions on the free exercise of religion, Magistrate Yamashita necessarily assumed the constitutionality of the legislative act, the RFRA, reinstating this standard of review.

The Court is mindful that "the general rule . . . is to avoid constitutional issues unless essential to the decision of the case." Gavin v. Peoples Natural Gas Co., 613 F.2d 482, 484 (3rd Cir. 1980). However, because the constitutionality of the RFRA is dispositive as to whether counts I and II are to be dismissed as frivolous under 28 U.S.C. § 1915, the Court will address this issue of first impression.

In Smith, the Supreme Court considered "whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use." 494 U.S. at 875. In holding that Oregon drug laws were applicable to the smoking of peyote [**7] by adherents of Native American Church, the Court discarded the compelling governmental interest standard of scrutiny previously applied to generally applicable laws burdening the free exercise of certain religions. See Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963); Thomas v. Review Bd. of Indiana Security Div., 450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987). The Smith Court, lowering the degree of scrutiny afforded by the Sherbert test, held that "generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest." 494 U.S. at 886, n.3.

The explicit, overriding purpose of the RFRA is "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1). [**8] The RFRA lauds the Sherbert test "for striking sensible balances between religious liberty and competing prior governmental interests," and disapproves Smith as a case that "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." 42 U.S.C. § § 2000bb(a)(3), (a)(5).

Hawaii argues that the RFRA is unconstitutional because it represents congressional usurpation of functions entrusted exclusively to the judiciary, including delineation of the boundaries of constitutional rights and calibration of the proper balance between competing interests of constitutional magnitude. Opposition Memorandum at 13-14, citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803); id. at 17, citing Katzenbach v. Morgan, 384 U.S. 641, 16 L. Ed. 2d 828, 86 S. Ct. 1717 (1966). Hawaii argues that "if the judicial branch finds that Congress has exceeded the extent of the power conferred by section 5 of the fourteenth amendment of the United States Constitution, it is the duty of the courts to declare RFRA unconstitutional." Id. at 14, citing Oregon v. Mitchell, 400 U.S. 112, 27 L. Ed. 2d 272, [**9] 91 S. Ct. 260 (1970). The Court finds that Congress, in enacting the RFRA, acted within its section 5 authority.

Central to this holding is the guidance given in Morgan as to the extent of Congress's power, pursuant to section 5 of the Fourteenth Amendment, to pass legislation protecting a constitutional right to a greater extent than the Supreme Court has interpreted the U.S. Constitution to require. Section 5 provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." In Morgan, the Court considered whether section 4(e) of the Voting Rights Act of 1965, prohibiting enforcement of a New York statute making literacy in English a voting prerequisite, was "appropriate legislation" under section 5 of the Fourteenth Amendment.

Katzenbach, the New York attorney general, argued that "§ 4(e) cannot be sustained as appropriate legislation to enforce the Equal Protection Clause unless the judiciary decides--even [*514] with the guidance of a congressional judgment--that the application of the English literacy requirement prohibited by § 4(e) is forbidden by the Equal Protection Clause." Morgan, 384 U.S. at 648. The Court having upheld [**10] a similar North Carolina literacy requirement against a Fifth and Fourteenth amendment challenge in Lassiter v. Northampton Elections Bd., 360 U.S. 45, 3 L. Ed. 2d 1072, 79 S. Ct. 985 (1959), Katzenbach argued that the judiciary had reached the opposite conclusion and that section 4(e) was therefore unconstitutional.

The Morgan Court disagreed. Significantly for present purposes, the Court declined to overrule Lassiter and, despite the statute's vitiation of Lassiter, sustained the constitutionality of section 4(e) of the Voting Rights Act. Justice Brennan, writing for the seven-justice majority, concluded that Congress could have found that section 4(e) was a remedial measure necessary to enforce the Equal Protection Clause, insofar as nullification of the English literacy requirement would lead to greater voting rights for Puerto Ricans in New York and in turn facilitate their attainment of other rights. The Court instructed:


It is for Congress to assess and weigh the various conflicting considerations--the risk or pervasiveness of the discrimination in government services, the effectiveness of eliminating the state restriction on the right to vote as a means [**11] of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school.


384 U.S. at 653.

More significantly for present purposes, the Court offered an alternative congressional rationale sufficient to sustain section 4(e)--a legislative judgment that the literacy requirement violated the Equal Protection Clause per se. See Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 Ga.L.Rev. 57, 71 (1986) ("Countering the Court"). In offering this second rationale, Justice Brennan found a congressional "prerogative to weigh . . . competing considerations" as part of an inquiry more constitutional than factual in nature. Morgan, 384 U.S. at 656. This inquiry asks whether "the application of New York's literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted [**12] an invidious discrimination in violation of the Equal Protection Clause. Id.

As expressed by one commentator, "this rationale--'the second Morgan rationale'--holds that Congress can expressly disagree with the Court as to the reach of constitutional rights." Matt Pawa, Note, When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us? An Examination of Section 5 of the Fourteenth Amendment, 141 U.Penn.L.Rev. 1029, 1061 (1993) ("Can Congress Save Us?"). Similarly, where, as here, Congress expressly disagrees with the Supreme Court's departure from a level of scrutiny afforded restrictions on certain constitutional rights, "it is enough that we perceive a basis upon which Congress might predicate [such] a judgment. . . ." Morgan, 384 U.S. at 656. But see Brest, Countering the Constitution, 21 Ga.L.Rev. at 104.

Hawaii attempts to distinguish the interplay of section 4(e) of the Voting Rights Act and the RFRA with the Supreme Court precedents respectively limited by them in the following manner:


What distinguishes RFRA from the Voting Rights Act is that the Supreme Court had already acted [in Smith by reinstating the compelling [**13] governmental interest test] In Morgan, the court had not yet considered whether English literacy requirements violated the equal protection clause. Justice Brennan's opinion [in Morgan] finds that, where the court has not acted, Congress may determine the issue and may enact remedial legislation. . . . RFRA is not aimed at providing the answer to a previously unanswered constitutional question; it is aimed [at] providing a different answer than the one already provided by the Supreme Court in Smith.


[*515] Opposition Memorandum at 14-15 (footnote omitted).

This distinction is not persuasive. When Congress enacted section 4(e) of the Voting Rights Act, it did not legislate on a clean slate unmarked by contrary Supreme Court doctrine. The Supreme Court in Lassiter directly addressed and upheld the constitutionality of an English literacy requirement under the Equal Protection Clause, finding that "literacy and illiteracy are neutral on race. . . ." 360 U.S. at 51. Accordingly, when Congress passed section 4(e), the Supreme Court had already acted.

Equally unavailing is Hawaii's argument that the restriction on English literacy requirements in section 4(e) did [**14] not conflict with Supreme Court authority because the statute essentially codified, or at least coincided with, decisions handed down in the interim between the Voting Rights Act and Lassiter. See Opposition Memorandum at 16-17, citing Oregon v. Mitchell, 400 U.S. 112, 232-33, 27 L. Ed. 2d 272, 91 S. Ct. 260 (1970) (Brennan, J., dissenting) (canvassing post-Lassiter cases upholding "selective proscription" of literacy tests by Congress). As a preliminary matter, this argument is at odds with Hawaii's foregoing position that, prior to the enactment of section 4(e), the Supreme Court had not yet acted in the same constitutional arena.

Secondly, this argument is inconsistent with the Morgan Court's unanimous view of the import, if not the merits, of its holding. Even the dissent in Morgan and commentators critical of congressional limitations on judicial doctrine agree that in Morgan, the Supreme Court upheld section 4(e) notwithstanding its conflict with Lassiter. See Morgan, 384 U.S. at 661 (Harlan, J., dissenting) ("in Lassiter . . . this Court dealt with substantially the same question and resolved it unanimously in favor of the legitimacy of a state literacy [**15] qualification"); id. at 668 ("I do not think that it is open to Congress to limit the effect of [Lassiter] as it has undertaken to do by § 4(e)"); Brest, Countering the Court, 21 Ga.L.Rev. at 73 ("a statute that contradicts a judicial doctrine--as section 4(e) contradicts Lassiter--may be premised on different assessments of competing values than those made by the Court").

Defendants are correct that the factual circumstances in Lassiter and Morgan are distinguishable, as recognized by the majority and Justice Harlan: whereas Lassiter involved a North Carolina literacy requirement directed at illiterate persons in a state that then had no significant non-English-speaking minorities, Morgan addressed a similar requirement targeting persons illiterate in English in the more polyglot context of New York. See Morgan, 384 U.S. at 662 (Harlan, J., dissenting). But the more essential point remains that Morgan gave Congress wide latitude to interpret the Constitution and expand a fundamental right pursuant to section 5 of the Fourteenth Amendment in an area where the Supreme Court had already spoken and afforded that right a narrower scope.

It might [**16] further be objected that Congress's enforcement power under section 5 of the Fourteenth Amendment is more limited in the context of an incorporated right, such as the free exercise of religion at issue here, than as to rights contained "in haec verba in the language of the Fourteenth Amendment itself." Hutto v. Finney, 437 U.S. 678, 717, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978) (Rehnquist, J., dissenting) Morgan involved congressional enforcement pursuant to section 5 of a right expressly inscribed in and guaranteed by the Fourteenth Amendment, "the right to vote." In the context at hand of a State's encroachment on a First Amendment right, it could be argued that Congress's section 5 enforcement power is not of the same caliber. The Court recognizes this potential objection but finds insufficient authority for the proposition that this distinction bears on Congress's power to limit or contradict judicial doctrine by statute pursuant to section 5, given that Congress's authority to enforce incorporated rights under section 5 is well-established. See, e.g., Hutto, 685 et seq. (upholding congressional authorization of attorney's fees in civil rights suits brought against [**17] states to enforce right to freedom from cruel and unusual punishment under the Eighth Amendment); Church of the Lukumi [*516] Babalu Aye v. City of Hialeah, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993) (sustaining challenge brought by petitioner-church under sect ion 1983 to city ordinances prohibiting animal sacrifice and thereby burdening the exercise of its religion under the Free Exercise Clause of the First Amendment); Pawa, Can Congress Save Us?, 141 U.Penn.L.Rev. at 1096.

The basis on which Congress predicated the RFRA is plain. Congress was expressly concerned that "by lowering the level of constitutional protection for religious practices, [Smith] has created a climate in which the free exercise of religion is jeopardized." S. Rep. No. 103-111, 103d Cong., 2d Sess. 8 (1993), citing Yang v. Sturner, 750 F. Supp. 558 (D.R.I. 1990) (reversing pre-Smith decision upholding Hmong religious objection to autopsy); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990) (abandoning on remand reliance on U.S. Constitution to protect Amish's free exercise right not to put fluorescent emblems on their horsedrawn buggies in light of Smith). The Senate Report clarifies that "this [**18] bill is not a codification of the result reached in any prior free exercise decision but rather the restoration of the legal standard that was applied in those decisions." Id. at 9.

In the context of prisoners' free exercise of religion, the Senate Report specifies that "the act would return to a standard that was employed without hardship to the prisons in several circuits prior to the O'Lone [v. Estate of Shabazz, 482 U.S. 342, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987)] decision." Id. In light of this legislative history, this Court concludes that while the RFRA no doubt "changes the law," see Robertson v. Seattle Audubon Society, 503 U.S. 429, 112 S. Ct. 1407, 1413, 118 L. Ed. 2d 73 (1992) (concluding that § 318(b)(6)(A) of the Northwest Timber Compromise "compelled changes in law, not findings or results under old law"), the RFRA does not purport to "prescribe a rule for the decision of a case in a particular way" so as to undermine its constitutionality on separation of powers grounds. United States v. Klein, 80 U.S. (13 Wall.) 128, 146, 20 L. Ed. 519 (1871); Pawa, Can Congress Save Us?, 141 U.Penn.L.Rev. at 1099.

Morgan held that Congress acted [**19] within its enforcement authority under section 5 of the Fourteenth Amendment when, pursuant to section 4(e) of the Voting Rights Act, it limited prior Supreme Court doctrine in order to expand a right guaranteed by the Fourteenth Amendment. Here, the basis for Congress's limitation on--or restoration of--judicial doctrine is plainer and, absent a particularized demonstration to the contrary as to a specific application not before this Court, no less sound. n1 Accordingly, the Court finds that Congress was equally within the bounds of its enforcement powers under the Fourteenth Amendment when it enacted the RFRA to restore the pre-Smith boundaries [*517] of the freedom of free exercise of religion under the First Amendment. n2



n1 Defendants, further attempting to distinguish Morgan, assert that "Congress may increase the scope of civil liberty, as it did with the Voting Rights Act, because none of the new liberty created in that act was created at someone else's expense. That is not true of RFRA." Opposition Memorandum at 18. See Morgan, 384 U.S. at 651, n. 10 ("Congress' power under § 5 grants Congress no power to restrict, abrogate, or dilute those guarantees"). Defendants argue that the RFRA falls afoul of Congress's section 5 authority insofar as it alters the balance between groups asserting their free exercise right and potentially competing groups invoking rights entitled to less than strict scrutiny. To illustrate this danger, defendants offer a hypothetical example wherein a landlord invokes the RFRA to shield from a city ordinance his discriminatory housing decisions made pursuant to sincerely held religious beliefs.

However, a recent case involving a similar scenario belies defendants' contention that the RFRA, by reinstating the Sherbert compelling interest test, disenfranchises groups asserting less privileged rights and debilitates the courts as guarantors of such rights. In Swanner v. Anchorage Equal Rights Comm., 874 P.2d 274 (Alaska) (per curiam), cert. denied, 130 L. Ed. 2d 368, 115 S. Ct. 460 (1994), the petitioner-landlord argued that he was exempt from local and state ordinances prohibiting marital status discrimination because, under the RFRA, these ordinances unduly burdened the exercise of his religious belief that cohabitation is a sin. The Alaska Supreme Court held that the RFRA did not render these ordinances unenforceable as to Swanner, given the state's compelling interest in preventing marital status discrimination in housing decisions. [**20]




n2 Defendants do not contend and the Court does not believe that the RFRA fosters government entanglement in or promotion of religion and is thus susceptible to a challenge under the Establishment Clause. See Pawa, Can Congress Save Us? at 1098. Nor do defendants argue that application of the RFRA in the context of the case at bar, prisoner free exercise cases, would go beyond posing an additional administrative burden to prison officials and judicial resources to "restrict, abrogate or dilute" the constitutional rights of other persons under Morgan.



B. Injunctive Relief

Under Fed. R. Civ. Proc. 65(b), a temporary restraining order may not be granted absent specific facts showing that an "immediate and irreparable injury" will otherwise result. Sampson v. Murray, 415 U.S. 61, 67, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974). Magistrate Yamashita found that Belgard faces no imminent irreparable harm warranting injunctive relief on the basis of evidence that: (i) as to count I, Defendants have exempted Belgard from hair length convictions pending final resolution of this case; [**21] (ii) as to count II, Defendants have permitted Belgard to meet with Native American religious counselors, albeit not with the shama of his choice; n3 and, (iii) as to count III, Defendants have replaced Belgard's lost or destroyed religious articles and permitted him to use and store these replacements in the prison chapel. Finding no evidence in the record to the contrary, the Court agrees and adopts Magistrate Yamashita's recommendation to deny Belgard's motion for a temporary restraining order.



n3 Defendants assert that "after unsuccessful attempts to negotiate a solution to Thunderfoot's refusal to submit to inspection before brining [sic] her 'medicine bag' into the facility, defendants have recruited and made other Native American Religious counselors available to plaintiff." Supplemental Memorandum in Opposition to Plaintiff's Motion for Temporary Restraining Order at 2.


IV. CONCLUSION

For the foregoing reasons, the Court ADOPTS Magistrate Yamashita's Findings and Recommendation filed November 29, [**22] 1994, except as otherwise indicated herein, and REJECTS Defendants' contention that the RFRA is unconstitutional. Belgard's motion for a temporary restraining order is DENIED.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, February 3, 1995.

HELEN GILLMOR

United States District Judge

PAUL D. LUCKETTE, Plaintiff, vs. SAMUEL A. LEWIS, et. al., Defendants.



CIV 94-1556-PCT-RGS (BGS)



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA



883 F. Supp. 471; 1995 U.S. Dist. LEXIS 9810



March 27, 1995, Decided













COUNSEL: [**1]

Paul Dominick Luckette, plaintiff, [PRO SE], ASPC-Florence-CU, Cook Unit - Eyman Complex, Florence, AZ.


For SAMUEL A. LEWIS, GEORGE HERMAN, CHARLES RYAN, DENNY HARKINS, JOHN MALIEPAARD, JOHN R THOMPSON, defendants: R Elizabeth Teply, Esq, Arizona Attorney General's Office, Phoenix, AZ.



JUDGES: HONORABLE ROGER G. STRAND, U.S. DISTRICT COURT JUDGE



OPINIONBY: HONORABLE ROGER G. STRAND



OPINION:

[*474] ORDER


INTRODUCTION

On July 28, 1994, Plaintiff Paul D. Luckette, presently confined in the Arizona State Prison Complex, Florence, Arizona, filed a pro se complaint and an Application for a Preliminary Injunction. A response and reply followed. On December 20, 1994, Plaintiff filed a Motion for a Temporary Restraining Order. A response followed. These motions are ready for disposition.


FACTS

Plaintiff is an inmate incarcerated in an Arizona State Prison in Florence, Arizona. Plaintiff brings suit against prison officials Samuel A. Lewis, Charles Ryan, George Herman, Denny Harkins, John Maliepaard, and John Thompson ("Defendants" or "governmental defendants") pursuant to 42 U.S.C. § 1983, the First Amendment, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb. Plaintiff alleges that he is an "Ambassador/Priest" of the Freedom Church of Revelation. See Affidavit of Plaintiff in Support of Application/Motion for Preliminary Injunction ("Affidavit") at 1. Plaintiff states "I have been a member of the Church for several years and my beliefs [**2] are very deeply held and my practices are outlined in the Freedom Church Creed, Articles of Association, letters of directions and the Holy Bible." Affidavit at 1.

Plaintiff claims that Defendants have violated his constitutionally protected right to practice his religion. Specifically, Plaintiff points to four religiously required practices which are burdened by prison officials. Plaintiff alleges that his religion requires that he: (1) maintain a Kosher diet; (2) remain under a vow of poverty contract with his church; (3) not cut the hair on his head or face; and (4) wear a headcovering of red, white, black or any mixture of these colors. Affidavit at 2. In his Motion for a Temporary Restraining Order and Application for a Preliminary Injunction, Plaintiff claims that he has been punished by prison officials because of his religious practices. Plaintiff has filed grievances with various prison officials requesting that he be allowed to practice his religion without penalty.


DISCUSSION

Plaintiff Luckette brings this action based on the Free Exercise Clause of the First Amendment. n1 Based on the Court's review of the filings, oral argument, the evidence presented, [**3] and the relevant statutory and case law, the Court will grant in part and deny in part the Plaintiff's Application for a Preliminary Injunction. n2



n1 The First Amendment states that "Congress shall make no law . . . prohibiting the free exercise [of religion]." In Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), the Supreme Court held that the Free Exercise clause applies to the states by incorporation into the Fourteenth Amendment.

n2 The Motion for a Temporary Restraining Order ("TRO") will be denied as moot in that the Court's ruling on the Preliminary Injunction disposes of the requests for relief in the Motion for a TRO. To the extent that the Motion for TRO requests relief not requested in the Preliminary Injunction Application, this requested relief will be denied.



PRELIMINARY INJUNCTION STANDARD

There are two factors to consider with respect to a motion for preliminary injunction: "The likelihood of the plaintiff's success on the merits; and, [**4] the relative balance of potential hardships to the plaintiff, defendant, and public." Native Village of Quinhagak v. United States, 35 F.3d 388 (9th Cir. 1994) quoting State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988). Plaintiffs are entitled to a preliminary injunction if they show either: "(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) the existence of serious questions going to the merits and the balance of hardships tipping [sharply] in [their] favor." MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 671 (1994). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990).

[*475] In other words, "where a party can show a strong chance of success on the merits, he need only show a possibility of irreparable harm. Where, on the other hand, a party can show only that serious questions are raised, he must show that the balance of hardships tips sharply in his favor." MAI, 991 F.2d [**5] at 517 quoting Bernard v. Air Line Pilots Ass'n, Intern., AFL-CIO, 873 F.2d 213, 215 (9th Cir. 1989). The critical inquiries for the Court are whether Plaintiff Luckette's constitutional claims will likely prevail on the merits, whether there is a probability of irreparable harm, and whether the hardships suffered by Plaintiff outweigh the Defendant's and the public's hardships. In undertaking these inquiries, the Court must closely analyze the Religious Freedom Restoration Act of 1993 ("RFRA" or "Act"), 42 U.S.C. § 2000bb.


THE RELIGIOUS FREEDOM RESTORATION ACT

On November 16, 1993, Congress enacted the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb - 2000bb-4, which states in relevant part:

FREE EXERCISE OF RELIGION PROTECTEE:

(a) IN GENERAL.-- 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).

(b) EXCEPTION.-- Government may substantially burden a persons'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 [**6] least restrictive means of furthering that compelling governmental interest.


Congress specifically stated that the purpose of the RFRA is to "restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) and to guarantee its application in all cases where free exercise of religion is a substantially burdened." 42 U.S.C. 2000bb.



n3 Justice O'Connor concurred in the Judgment, but strongly criticized the Court's refusal to apply the "compelling interest test." Smith, 494 U.S. 872, 891-907, 110 S. Ct. 1595 (O'CONNOR, J., concurring).


In essence, Congress overturned the Supreme Court's decision in Employment Div., Dep't. of Human Res. of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). In Smith, the Supreme Court was confronted with the issue whether the Free Exercise Clause of the First Amendment prohibited the State of Oregon from applying [**7] its drug laws to the ceremonial ingestion of peyote. The Court, over the strong dissent of Justices Blackmun, Brennan, and Marshall n3, held that the Free Exercise Clause of the First Amendment does not require the Government to demonstrate a "compelling state interest" for each valid and neutral law of general applicability" it enacts. Smith, 494 U.S. at 879 citing with approval United States v. Lee, 455 U.S. 252, 263, n.3, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982) (STEVENS, J., concurring in judgment). Thus, the Supreme Court held that the Free Exercise Clause does not prohibit Oregon from applying its drug laws to prohibit sacramental peyote use because the laws are "neutral laws of general applicability." Id. n4



n4 The Court noted that:

the only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press. . . . [citations omitted].


Smith, 494 U.S. at 881.


[**8]

There is little doubt that the RFRA, with its "compelling state interest" test, applies to prisoners' religious claims. In analyzing a statute, a Court begins with its plain meaning. See e.g. Blum v. Stenson, 465 U.S. 886, 896, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). The RFRA clearly states that the compelling interest test controls free exercise claims. Based on the [*476] plain meaning of the statute, there is no ostensible limit to the types of free exercise claims that may be brought in a judicial proceeding. See 42 U.S.C. § 2000bb-1. Thus, the statute does not preclude prisoners from bringing claims based on the RFRA.

This conclusion is supported by the underlying purpose of the statute and the legislative history. See e.g. United Steelworkers of America v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979) (examining statutory purpose and legislative intent behind Title VII); Also see Eskridge and Frickey, LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY at 569-639 (analyzing courts use of statutory purpose and legislative history in construing statutes). The underlying purpose of the statute is to "restore the compelling interest test . . . and [**9] guarantee its application in all cases where free exercise of religion is substantially burdened by government" [emphasis added]. 42 U.S.C. § 2000bb.

The legislative history of the RFRA further confirms that prisoner claims are covered by the statute. Congress debated an amendment that would have excluded prisoner claims from the purview of the Act and rejected it. See S. Rep. No. 111, 103rd Cong., 1st Sess. § § V(d) and XI (1993); H.R. Rep. No. 88, 103rd Cong., 1st Sess. (1993) n5. Moreover, the Senate Committee, which favorably reported a substantially identical version of the bill that finally passed, specifically addressed the issue of prisoner claims in their Committee Report. S. Rep. No. 111, 103rd Cong., 1st. Sess. (1993) reprinted in 1993 U.S.C.C.A.N. 1892. The Committee overwhelmingly supported a substantially identical version of the RFRA, as is evidenced by their 15-1 vote to favorably report the bill. See S. Rep. No. 111, 103rd Cong., 1st. Sess. (1993). The sole Senator voting against a favorable report was Senator Simpson. The Committee Report states, "the committee concludes the first amendment doctrine is sufficiently sensitive to the demands of prison [**10] management that a special exemption for prison free exercise claims under the act is unnecessary." Id. at 11. Senator Simpson placed his dissenting views in the Committee Report. The Senator's main contention was that if the RFRA applies to prisoner claims, there will be a dramatic increase in prisoner litigation which will unduly burden the courts' dockets. This contention is explicitly rejected in the Committee Report.



n5 The Amendment was offered on the floor of the Senate to make the Act inapplicable to prisoner cases. See Cong. Rec. for October 26, 1993, S14353. The amendment was rejected by a vote of 58 to 41. See Cong. Rec. for October 27, 1993, S14468.


The plain meaning, statutory purpose, and legislative history of the RFRA clearly demonstrate that the Act applies to prisoner free exercise claims. Furthermore, the legislative history highlights the RFRA's intention to restore the traditional standard afforded to prisoner's free exercise claims which was weakened by the Supreme Court's decision [**11] in O'Lone v. Estate of Shabazz, 482 U.S. 342, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987). See S. Rep. No. 111, 103rd Cong., 1st. Sess. (1993) at 9-11.

In O'Lone, the Supreme Court was confronted with the issue whether a prison policy, which prevented prisoners from attending a Muslim congregational service held on Friday afternoons, violated the prisoners' Free Exercise rights. O'Lone, 342 U.S. at 345-347. The Court, over the dissent of Justices Brennan, Marshall, Blackmun and Stevens, held that the prison policy was reasonably related to legitimate penological objectives, and thus constitutionally permissible. O'Lone, 482 U.S. at 353. The dissent in O'Lone, argued that the majority incorrectly applied a "reasonableness" test to all prisoner free exercise claims. O'Lone, 482 U.S. at 354-368 (BRENNAN, J., dissenting). Justice Brennan's dissent states, "I . . . would require prison officials to demonstrate that the restrictions they have imposed are necessary to further an important government interest, and that these restrictions are no greater than necessary to achieve prison objectives." O'Lone, 482 U.S. at 354 (BRENNAN, J., dissenting) citing [**12] ( Turner v. Safley, 482 U.S. 78, 101, n.1, 107 S. Ct. 2254, [*477] 96 L. Ed. 2d 64 (1987) (STEVENS, J., concurring in part and dissenting in part) citing Abdul Wali v. Coughlin, 754 F.2d 1015 (2nd Cir. 1985)). n6



n6 Although the dissenters stated they prefer the application of an important government interest" test rather than a "reasonableness" test, they argued that prison policies preventing Muslim prisoners from worshipping at the Friday ceremonies are unconstitutional even based on the "reasonableness" test.


The RFRA, its purpose, and the legislative history make clear that Congress intended the courts to vigorously protect the First Amendment rights of prisoners while balancing the State's interest in maintaining a safe and orderly prison system. This Court is confronted with the difficult task of balancing Plaintiff Luckette's First Amendment rights with the State of Arizona's interests in effectively maintaining their prisons.


BASIS FOR EQUITABLE RELIEF UNDER RFRA

Plaintiff Luckette requests [**13] the Court enter a preliminary injunction. Plaintiff is entitled to a preliminary injunction if he can show either: "(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) the existence of serious questions going to the merits and the balance of hardships tipping [sharply] in [his] favor." MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 671 (1994). n7 In order to demonstrate a likelihood of success on the merits Plaintiff must show that he will likely prevail based on the First Amendment and the RFRA. To prevail on the merits, Plaintiff must first demonstrate that the:


governmental [action] burdens [the practice of his religion by preventing him] from engaging in conduct or having a religious experience which the faith mandates. This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.


Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) citing Graham v. C.I.R, 822 F.2d 844, 850-851 (9th Cir. 1987) (internal citations omitted), aff'd sub. nom. Hernandez [**14] v. Commissioner, 490 U.S. 680, 699, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1988). Plaintiff must demonstrate that his religion requires that he engage in the four religious requirements he alleges are burdened, and he must demonstrate that the burdens are substantial. To obtain a preliminary injunction on each of the four claims, Plaintiff must demonstrate that the Kosher diet, vow of poverty, hair length, and headcovering are each required by his religion, central to his religious doctrine, and substantially burdened. Id.



n7 Plaintiff can establish either of these formulations. "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990). The Court is mindful of the "sliding scale" approach and applies this standard to Plaintiff's claims. For convenience though, the Court refers to the first formulation because it most accurately describes Plaintiff's chances of success on the merits and the chances of irreparable injury.


[**15]

Second, in order to prevail on the merits, Plaintiff must demonstrate that the Defendants have not met their burden under the First Amendment and the RFRA. Specifically, Plaintiff must demonstrate that the governmental Defendants have substantially burdened his exercise of religion and have not established a "compelling governmental interest" or a "least restrictive means." See 42 U.S.C. § 2000bb-1.

Lastly, Plaintiff must demonstrate a possibility of irreparable injury. This burden may be met if Plaintiff can show that he will suffer irreparable harms from having his religious practices burdened. In addition, Plaintiff may also demonstrate that the "balance of hardships" tips sharply in his favor. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 671 (1994).


LIKELIHOOD OF SUCCESS ON THE MERITS

Plaintiff must initially establish that his faith earnestly requires him to practice a Kosher diet, take a vow of poverty, keep his beard at a certain length, and wear a headcovering [*478] of a particular color. Although courts should not pass judgment on which religions are bona fide and which are bogus, courts [**16] must be able to distinguish legitimate religions from "so called religions which tend to mock established institutions and are obviously shams and absurdities and whose members are patently devoid of [religious] sincerity." Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir. 1974), cert. denied, 434 U.S. 871 (1977). The Court is mindful of the Supreme Court's view that "it is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Hernandez v. Commissioner, 490 U.S. 680, 699, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1989) (rejecting free exercise challenge to payment of income taxes alleged to make religious activities more difficult). Notwithstanding this admonition, the Court must make a preliminary inquiry in order to distinguish sham claims from sincere religious ones.

The Plaintiff has presented substantial documentation of the legitimacy of his religious convictions. Plaintiff has submitted an affidavit stating the sincerity of his religious beliefs and legitimacy of his church, the Freedom Church of Revelation. Plaintiff has also submitted an affidavit [**17] from Paula Cartright, Secretary of the Freedom Church, and the "Freedom Church Creed", which outlines the basic central tenets of Plaintiff's church. See Plaintiff's Application for Preliminary Injunction, Exhibit L. Most of the beliefs and practices in the "Creed" are derived from verses in the Bible, and are arguably based on Judeo-Christian principles. Although Plaintiff's religion may not be an "established" religion in the sense that it has millions of adherents or has been in existence for centuries, Plaintiff has demonstrated that his religion is principled and legitimate. In fact, each of the requests Plaintiff makes are "established" religious practices of various Judeo-Christian religions. Based on the filings, oral arguments, and the Court's review of Plaintiff's affidavit, the Freedom Church's Secretary's affidavit and the "Freedom Church Creed", the Court finds that Plaintiff's religious beliefs cannot be construed as a "sham" or "devoid of religious sincerity." Theriault at 395. A court need not condone each and every practice or belief system of a religion in order to determine that a religion is legitimate and that its members are entitled to First Amendment [**18] protections.

Defendants have shown some concern that Plaintiff's religion is an "identity religion." See Plaintiff's Application for a Preliminary Injunction, Exhibit T. Identity religions generally profess violence against blacks, Jews, and other religious and ethnic groups. However, Plaintiff states that his religion does not profess violence against blacks, Jews or others. Moreover, the "Freedom Church Creed" specifically states:


We are aware that "Identity" has taken on an anti-Semitic character among some groups. Therefore, we plainly state that we are not so-called "Jew haters", we do not believe that the Jews are responsible for all the world's problems, nor do we believe that the "holocaust" of World War II is a hoax. . . . We are in no way connected to or associated with the Aryan Nations, the KKK, the Skinheads, or any other race hate group of similar persuasion.


See Plaintiff's Application for Preliminary Injunction, Exhibit L. The Defendants have not presented the Court with any evidence that Plaintiff and his religion are committed to violence or profess hatred towards religious, ethnic or racial groups. Therefore, Defendants have failed to rebut [**19] Plaintiff's evidence demonstrating Plaintiff's sincere and legitimate religious beliefs.

This initial inquiry into the legitimacy of Plaintiff's religious convictions is an extremely important component of prisoner Free Exercise claims. Courts must be able to sort out the insincere and illegitimate prisoner Free Exercise claims from the legitimate ones, prior to undertaking an extensive First Amendment and RFRA analysis. This initial inquiry serves as a flood-gate for prisoner Free Exercise claims and provides an efficient means for disposing of bogus claims undeserving of First Amendment protections. See S. Rep. No. 111, 103rd Cong., 1st. Sess. (1993) at 9-11.

[*479] The Court must next address Plaintiff Luckette's claims in light of the First Amendment and the RFRA. Plaintiff must show that the governmental defendants have "substantially burdened" his exercise of religion and that they have failed to establish a "compelling government interest" and the "least restrictive means." 42 U.S.C. § 2000bb-1. This Court finds very little guidance from the Ninth Circuit in applying the newly enacted RFRA. In one of the few cases involving a prisoner's Free Exercise claim pursuant to the RFRA, [**20] the Ninth Circuit did not reach the question of how to apply the "substantial burden" test because the Court held that the prisoner had not argued or provided evidence to show that his "religious practices" are mandated by his faith. Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995). Plaintiff Luckette, however, has demonstrated that his religion requires that he maintain a Kosher diet, take a vow of poverty, keep his facial and head hair at a certain length, and wear headcovering of a particular color.

Although the Plaintiff has demonstrated that his religion mandates the four religious practices he claims are burdened, Plaintiff has only demonstrated that three of the four have been substantially burdened. Prison policies do substantially burden Plaintiff's attempts to maintain a Kosher diet, keep his hair at a certain length, and wear a headcovering of a particular color. However, Plaintiff has not demonstrated how the religious practice of taking a vow of poverty has been substantially burdened. The "Creed" merely states that Plaintiff, as a priest in the Church, must "Turn over income to this Church (unless you have been appointed as an Ambassador, in which event you must [**21] turn over income to your chapter) to carry out the purposes of this church (also called a "vow of poverty")." See Plaintiff's Application for a Preliminary Injunction, Exhibit L. The Court finds no evidence that Defendants have substantially burdened Plaintiff's ability to take a vow of poverty.

Plaintiff believes that since he must turn over all of his money to his Church, that he is entitled to indigency status under the prison regulations. Prisoners are permitted to donate their money or spend their money on a variety of charities, interests, or churches; nevertheless, this does not mean that a prisoner who spends all his money on his religion or some other cause is entitled to "indigency status." Further, Plaintiff fails to demonstrate that his vow of poverty requires that he not work, or that the work requirement substantially burdens the practice of taking a vow of poverty. Based on the evidence presented and the filings, the Plaintiff has failed to demonstrate that his ability to take a vow of poverty has been substantially burdened. n8 Accordingly, Plaintiff's requests for equitable relief based on the vow of poverty claim will be denied.



n8 The Court does not reach the issue of whether the government has demonstrated a "compelling governmental interest" and "least restrictive means" in terms of the vow of poverty claim. Assuming that Plaintiff's ability to take a vow of poverty was substantially burdened, the Court notes that Defendants likely have established a compelling governmental interest" and "least restrictive means." The prison system has compelling budgetary concerns and safety concerns which require that Plaintiff participate in work programs and not receive indigency status. There has been no evidence presented, and the Court is unaware of any such evidence, suggesting that any less restrictive means for accomplishing these important prison objectives exist.


[**22]

Plaintiff does show that the remaining practices have been substantially burdened. Plaintiff cannot effectively practice a Kosher diet, absent the approval of the Defendants, he is not allowed to wear his facial hair at the required length, and he is prevented from wearing a headcovering of appropriate color. The next issue for the Court to address is whether Plaintiff demonstrates that the governmental defendants have failed to establish a "compelling government interest" and the "least restrictive means." Plaintiff meets this burden by presenting evidence of the prison officials' inadequate responses to Plaintiff's requests to practice his religion. See Plaintiff's Application for Preliminary Injunction and Exhibits. Thus, the governmental defendants must demonstrate that the prison policies comport with the First Amendment and the RFRA. In applying the First Amendment and the RFRA to Plaintiff's case, the Court is guided [*480] by Justice Brennan's dissenting opinion in the O'Lone v. Estate of Shabazz case. The Court believes that Justice Brennan's dissent is the proper standard for applying claims brought pursuant to the RFRA. The Justice stated, "I . . . would require prison [**23] officials to demonstrate that the restrictions they have imposed are necessary to further an important government interest, and that these restrictions are no greater than necessary to achieve prison objectives." O'Lone, 482 U.S. at 354 (BRENNAN, J., dissenting) (citations omitted). This standard is the same as the RFRA's "compelling interest/least restrictive means" test, and embodies the "balancing approach" articulated in the legislative history of the Act. See S. Rep. No. 111, 103rd Cong., 1st. Sess. (1993) at 9-11. Justice Brennan, relying on a Fifth Circuit case, states:


where exercise of the asserted right is not presumptively dangerous . . . and where a prison has completely deprived an inmate of that right, then prison officials must show that 'a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restrictions are no greater than necessary to effectuate the governmental objective involved.'


O'Lone, 482 U.S. at 358 (BRENNAN, J., dissenting) citing Abdul Wali v. Coughlin, 754 F.2d 1015 (2nd Cir. 1985). Prisoners' Free Exercise rights are constitutionally protected, [**24] and when there is no legitimate security risk justifying the infringement of this right, prison officials bear the heavy burden of demonstrating some other compelling state interest.

The logic of applying the compelling state interest test in prison situations is defended by Justice Brennan. The Justice states:


to the extent that prison is meant to inculcate a respect for social and legal norms, a requirement that prison officials persuasively demonstrate the need for the absolute deprivation of inmate rights is consistent with that end. Furthermore, prison officials are in control of the evidence that is essential to establish the superiority of such deprivation over other alternatives. It is thus only fair for these officials to be held to a stringent standard of review in such extreme cases.


O'Lone, 482 U.S. at 359 (BRENNAN, J., dissenting).

Plaintiff Luckette has demonstrated that the prison has prevented him from practicing a Kosher diet, maintaining his hair at a certain length, and wearing a proper headcovering. He has written numerous requests to prison officials to permit him to practice his religion. See Plaintiff's Application for Preliminary Injunction [**25] and Exhibits. The prison's basic response to Plaintiff's request is that since the prison does not officially recognize Plaintiff's religion, he is not permitted a Kosher diet, an appropriate headcovering or hair length. Id. For example, Defendants conclusorily state, "Luckette is not claiming to be a Jew who keeps Kosher. Therefore, he is not entitled to claim a Kosher diet." Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction at 3. This is Defendants' primary basis for opposing Plaintiff's request for a Kosher diet. This does not suffice as a compelling government interest. n9



n9 The Defendants' filings were so devoid of arguments and evidence suggesting "compelling government interests" and "least restrictive means" that the Court set for oral argument the Plaintiff's Application for a Preliminary Injunction, and specifically requested that the parties brief the Court on the application of the Religious Freedom Restoration Act to the Plaintiff's case.


In general, two of the most compelling [**26] penological interests are budgetary concerns and safety concerns. The Defendants have suggested at oral argument, though nowhere in the filings, that Kosher diets cost more money than regular prison diets. Although, the cost may be greater, this additional expense is not a compelling governmental interest. Only a few prisoners have legitimate religious beliefs which require they maintain a Kosher diet, and the expense of providing Kosher meals to these few prisoners is minimal. Moreover, the Ninth Circuit has held, under the less stringent O'Lone rational relationship test, that "inmates have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." [*481] McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987). The McElyea Court relied on a Second Circuit case, Kahane v. Carlson, 527 F.2d 492 (2nd Cir. 1975), which held that the First Amendment requires that an Orthodox Jewish prisoner receive a Kosher diet. In Ward v. Walsh, 1 F.3d 873 (1993), cert. denied, 127 L. Ed. 2d 649, 114 S. Ct. 1297 (1994), also decided prior to the enactment of the RFRA, the Ninth Circuit reiterated that provision of a [**27] Kosher diet may be required by the First Amendment. In terms of the headcovering and hair length, the prison does not incur any cost by permitting Plaintiff to grow his hair or wear a headcovering.

Another potential compelling governmental interest is safety concerns. Clearly, provision of a Kosher diet would not implicate any safety concerns. However, the Defendants have suggested, albeit superficially and without much evidentiary documentation, that permitting an appropriate headcovering and hair length may raise safety concerns. In terms of the hair length, Defendants state that the prison policy concerning grooming and hair length has been upheld by the Ninth Circuit in " Freedom [sic] v. State of Arizona, 912 F.2d 328 (1990)." See Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction at 3. In Friedman v. Arizona, the Ninth Circuit held that a prison policy preventing Orthodox Jewish prisoners from growing their beards did not unconstitutionally restrict these prisoners' Free Exercise rights. Id. This Ninth Circuit decision, decided prior to enactment of the RFRA, was primarily based on the O'Lone v. Estate of Shabazz opinion. The O'Lone [**28] decision was implicitly, if not explicitly, overturned by the RFRA.

Although there may be compelling reasons for not allowing prisoners to maintain extremely long hair, the Plaintiff is merely asking that he be allowed to maintain a beard one quarter of an inch in length. Prison officials permit, for medical reasons, some prisoners to maintain this one quarter inch beard length. See Plaintiff's Application for Preliminary Injunction. The prison officials do not meet their burden of demonstrating a compelling interest for not allowing a short, kempt beard. One might conclude that a six inch beard, or very long hair on one's head, may present a compelling health hazard or even be a security risk in certain situations, but a trimmed beard, so long as it is clean, does not seem to present prison authorities with a major security or health risk.

In the Friedman case, the Ninth Circuit relied on testimony suggesting that prisoners could not be identified if they were photographed without a beard, and then grew a beard and escaped. This problem may be easily rectified. If a prisoner has a legitimate and bona fide religious practice of wearing a short beard, which does not present [**29] a major health problem, then he can be photographed with his short kempt beard; this in fact may make it easier to identify this prisoner from those not having a beard. A prisoner who consistently requests a beard, and then shaves it off, clearly does not have a legitimate religious conviction, and thus his request may be denied as it would be a sham, not protected by the Free Exercise clause. n10



n10 If a prisoner claims that his religion requires he have a beard certain times of the year and not others, then the government would have a compelling interest in that the expense of photographing the prisoner each time and the potential of not being able to identify the prisoner, would present serious budgetary and safety concerns.


In terms of the headcovering, the Defendants have presented nothing in their filings, nor evidentiary documentation, to support the view that an appropriate headcovering may be a safety concern. The Defendants, however, did suggest at oral argument that certain colors may present safety [**30] concerns. The Defendants, at oral argument, suggested in passing that certain colors may be gang colors and thus the wearing of those colors may raise safety concerns. The Court is extremely concerned with the potential for violence that may arise from wearing gang-related colors. The Court must give due deference to the prison officials' expertise in determining which colors are gang colors and whether the wearing of such colors presents a safety risk. See Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. [*482] 1800, 40 L. Ed. 2d 224 (1974). Although the Plaintiff's religion may require him to wear only certain colors, this Court cannot condone endangering the welfare of individuals by permitting the Plaintiff to wear a headcovering, the color of which may result in harm to himself or others. These safety concerns, though, must be viewed in light of the First Amendment and RFRA. The governmental defendants have not clearly suggested which colors raise safety concerns. At oral argument, the Court was informed that prisoners are permitted to wear blue headcoverings. Plaintiff requests that he may wear a headcovering similar to the headcovering Native Americans are allowed to wear, but with [**31] the colors of red, white, black or some combination of the three. The Court was not informed as to which colors present safety problems. The Court is confident that the Defendants will be able to work with the Plaintiff in devising a headcovering that will not present a safety risk. Perhaps a primarily white headcovering, or a headcovering with some combination of the three colors, will not endanger Plaintiff or the welfare of other prisoners. The Court leaves it to the parties to agree on a headcovering. However, to the extent prison officials, based on their experience and expertise, legitimately believe there is no headcovering which will reasonably assure the Plaintiff's and others' safety, the Plaintiff may be precluded from wearing such duly designated dangerous headcoverings.

Further, the prison officials have failed to show that the "restrictions are no greater than necessary to achieve prison objectives." O'Lone, 482 U.S. at 354 (BRENNAN, J., dissenting) (citations omitted). The governmental defendants, in their filings and oral argument, have not addressed this issue. Assuming arguendo that Defendants established a compelling government interest as to all three practices, [**32] there has been no showing that the "application of the burden" is the "least restrictive means of furthering the compelling governmental interest." 42 U.S.C. § 2000bb-1. Plaintiff states and presents evidence that at least one other prisoner receives a Kosher diet, and that there are prison regulations permitting certain groups this diet. See Application for Preliminary Injunction. Defendants do not present evidence to contradict this point or demonstrate why denying Plaintiff a Kosher diet is the least restrictive means for accomplishing their objective. Plaintiff also states and presents evidence that other groups are permitted to wear headcoverings. Plaintiff claims his headcovering is similar to a permissible Native American headcovering, except for the color. Id. As the Court has previously stated, the Court is confident that the parties can agree on a headcovering which will not present potential safety risks. Lastly, Plaintiff states and presents evidence that other prisoners are allowed to maintain short beards for medical purposes. Id. The Defendants do not establish their "least restrictive means" burden in this regard.

In sum, the Plaintiff has shown that his religious [**33] claims are sincere and that Defendants have failed to meet the requirements of the Free Exercise Clause of the First Amendment and the RFRA. Plaintiff has not shown that the governmental defendants have substantially burdened his practice of taking a vow of poverty, and accordingly, the Court will deny all relief requested, in the Application for Preliminary Injunction and Motion for Temporary Restraining Order, predicated on Plaintiff's vow of poverty claim. On the remaining claims, the Plaintiff has demonstrated a strong "likelihood of success on the merits." MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 671 (1994). The Court now turns to the second component of the preliminary injunction standard, the possibility of irreparable injury. Id.


POSSIBILITY OF IRREPARABLE INJURY

The Plaintiff must show that there is a possibility of irreparable injury. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 671 (1994). In addition, the Plaintiff may, although need not, show that the balance of hardships tips sharply in his favor. Id. Plaintiff has provided [**34] ample evidence of [*483] the hardships he has suffered and the irreparable harms he may suffer in the future. See Plaintiff's Application for a Preliminary Injunction. Plaintiff is not permitted to engage in religious practices which are mandated by his religion. In the context of a First Amendment free speech claim, the Supreme Court stated, "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). The loss of an ability to practice a central tenet of one's religion for any extended amount of time is clearly an irreparable injury.

The Plaintiff has bolstered his "possibility of irreparable harm showing" with evidence that the "balance of hardships tips sharply in his favor." The Plaintiff is being prevented from exercising his religious beliefs and practices. The prison officials have not suffered and will not materially suffer if the Court enjoins the Defendants' specific actions which prevent Plaintiff from practicing a Kosher diet, maintaining his hair at an appropriate length, and wearing an appropriate headcovering. Therefore, based on the filings, [**35] the oral argument, the evidence presented, and the case law, the Court finds that the Plaintiff has demonstrated the possibility of irreparable harm, if not the probability of harm. The Court further finds that Plaintiff has demonstrated that the balance of hardships tips sharply in his favor.


CONCLUSION

The Court will enter a preliminary injunction enjoining the Defendants from denying Plaintiff a Kosher diet and preventing Plaintiff from growing a one quarter inch beard and wearing an appropriate headcovering. As the Court has made clear, the Plaintiff has firmly established that his religious convictions are legitimate and sincere. The Court has closely examined the evidence relating to the bona fides of Plaintiff's religion and has found that his convictions are not pretensions or shams. Although courts should not judge the merits of religious convictions, an initial inquiry into the legitimacy of one's religious convictions is permissible under the First Amendment, and necessitated by the Court's duty to manage its scarce judicial resources. Illegitimate prisoner religious claims must be weeded from the legitimate ones. Congress's enactment of the RFRA may [**36] lead to a flood of bogus prisoner claims. This initial inquiry serves as the Court's floodgate filtering out the insincere religious claims so that the Court has the resources to address legitimate fundamental First Amendment violations. Similarly, the requirement that a prisoner demonstrate that there is a substantial burden to a central religious belief serves this screening function.

Plaintiff has sufficiently demonstrated that three of the four religious tenets he complained of are central to his religion and have been substantially burdened by the prison officials. The governmental defendants have failed to adequately justify their imposition of these burdens. Accordingly, the Plaintiff's Motion for a Preliminary Injunction will be granted in part and denied in part.

Based on the foregoing,

IT IS ORDERED, granting in part and denying in part Plaintiff's Application for Preliminary Injunction (Doc. #4).

FURTHER ORDERED, denying Plaintiff's Motion for Temporary Restraining Order as moot (Doc. #25).

FURTHER ORDERED, denying all requested injunctive relief based on Plaintiff's "vow of poverty" claim.

FURTHER ORDERED, Defendants shall provide Plaintiff with the Kosher meals [**37] that are provided other similarly situated prisoners.

FURTHER ORDERED, Defendants shall permit Plaintiff to grow a beard of one quarter inch length, provided the beard is kempt and clean, and does not present any health problems to the Plaintiff or others.

FURTHER ORDERED, Defendants shall arrange to meet with Plaintiff and the parties shall agree on an appropriate headcovering which will not present safety concerns. However, to the extent prison officials, based on their experience and expertise, legitimately believe there is no headcovering which will reasonably assure the Plaintiff's and others' [*484] safety, the Plaintiff may be precluded from wearing such duly designated dangerous headcoverings.

DATED this 27th day of March, 1995.

HONORABLE ROGER G. STRAND

U.S. DISTRICT COURT JUDGE