The U.S. Court of Appeals for the Second Circuit waded into a contentious debate over religious rights on November 27, 2023, holding that prisoners claiming a violation of those rights under 42 U.S.C. § 1983 need to show only that their beliefs were burdened. The Court joined the Third, Fifth and Ninth Circuits in finding almost any burden of beliefs is sufficient to state a constitutional claim.

While incarcerated at New York’s Downstate Correctional Facility, Jay S. Kravitz requested to celebrate the Shavuot holiday with other Jewish prisoners in June 2014. The first night guards threw paper bags with peanut butter sandwiches at the prisoners, telling them to “go back to your cages.” When the prisoners asked if they could eat the sandwiches together, the guards answered, “Fuck you. Shut up,” and sent the prisoners to their cells.

The next night Kravitz and his fellow prisoners were seated at a dining room table when he began the holiday service with a prayer. But after 30 seconds, he was interrupted when a guard got “in Kravitz’s face” saying “I don’t want to hear that. You need to stop and get to eating that food. I got things to do.” When Kravitz continued praying, the guard struck the table and screamed: “[L]ook, just shut the fuck up and get to eating. I got things to do.” Kravitz rushed the rest of his prayer, skipping the traditional blessing and drinking of grape juice for fear of further angering the guard. The service lasted about 20 minutes.

Kravitz then filed suit pro se under 42 U.S.C. §1983 in federal court for the Southern District of New York, accusing prison officials of violating his right to free exercise of religion under the First Amendment. The district court granted Defendants summary judgment because the named defendants were not involved in the first incident, adding that Kravitz had not met “his burden of demonstrating that his religious beliefs were substantially burdened” in the second since he was not totally prohibited from eating and praying with other Jewish prisoners.

He appealed, and the Second Circuit recalled that its prior case law assumed that a prisoner stating a free exercise claim under § 1983 must make a threshold showing “that the disputed conduct substantially burdens his sincerely held religious beliefs,” quoting Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006). This substantial burden test, the Court explained, “requires courts to distinguish important from unimportant religious beliefs” in order to decide whether a “belief or practice is so peripheral to the plaintiff’s religion that any burden can be aptly characterized as constitutionally de minimus,” as held in Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003). The relevant question, the Court said, is whether the religious observance is “considered central or important” to plaintiff’s religious practice.

The Court went on to trace the history of the substantial burden test from decisions by the Supreme Court of the U.S. (SCOTUS) in Sherbert v. Verner, 374 U.S. 398 (1963), to Hernandez v. Comm’r, 490 U.S. 680 (1989), when the high court said that a “free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.” But a short time later, in Employment Division v. Smith, 494 U.S. 872 (1990), SCOTUS opined that “[i]t is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”

After that, Congress responded by passing the Religious Freedom Restoration Act (RFRA), 42 U S.C. § 2000bb(b)(1), which “restore[d] the compelling interest test” of Sherbert, the Court said. Though RFRA does not apply to prisoners in state custody, per City of Boerne v. Flores, 521 U.S. 507 (1997), the Second Circuit continued to apply RFRA’s “substantial burden” test to state prisoners’ free exercise claims. But the Court acknowledged that applying the test is “a task for which … courts are particularly ill-suited” and raises the danger of “conclusory judgments about the unimportance of the religious practice to the adherent”—judgments that fail to “confront the often more difficult inquiries into sincerity, religiosity and the sufficiency of the penological interest to justify the burden.”

The Court then announced that a prisoner claiming a free exercise of religion violation under § 1983 “need not make a showing of a substantial burden.” Rather, it said that “Kravitz has sufficiently demonstrated a burden on his sincere religious beliefs such that the district court erred in granting summary judgment to the defendants.” Accordingly, that decision was vacated and the case remanded. See: Kravitz v. Purcell, 87 F.4th 111 (2d Cir. 2023).

Kravitz is to be commended for representing himself so ably throughout the proceedings. His case has now returned to the district court, where he has picked up representation from attorneys with Sidley Austin LLP in Washington, D.C. PLN will update developments as they are available. See: Kravitz v. N.Y., USDC (S.D.N.Y.), Case No. 7:16-cv-08999.

In its holding, the Court joined the Third, Fifth, and Ninth Circuits. Meanwhile, the Sixth Circuit has set a higher bar, asking if a plaintiff making an RFRA claim was “effectively forced” to violate his beliefs. See: Doe v. Cong. of the U.S., 891 F.3d 578 (6th Cir. 2018). The Tenth Circuit likewise requires plaintiffs to show they were forced into or prohibited from a religious exercise. See: Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), cert. denied by Abdulhasseb v. Calbone, 562 U.S. 967 (2010). Resolution of this circuit split awaits another day.  

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