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Excessive Gas May Substantially Burden Religion Under RLUIPA

The Ninth Circuit Court of Appeals vacated summary judgment on an Arizona prisoner’s religious diet claims because the lower court made inadequate findings. The Court also rejected Defendants’ contention “that excessive gas simply does not constitute a substantial burden” under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Arizona Department of Corrections (ADOC) prisoner Ahmin Rahman Shakur changed his religious preference from Catholic to Muslim. He was granted a “lacto-vegetarian diet” for religious reasons. It was subsequently changed to “an ovo-lacto vegetarian diet, which includes milk and eggs, but no meat.”

“ADOC provides two kosher diets to Jewish inmates: a standard kosher diet and an Orthodox kosher diet. The standard kosher diet consists of two vegetarian meals and a TV-style dinner that contains meat; it costs about five dollars more per inmate per day than the regular prisoners’ diet. The Orthodox kosher diet costs three to five times that amount per inmate.

Shakur complained that the vegetarian diet gives him gas, irritates his hiatal hernia and interferes with the state of “purity and cleanliness” needed for Muslim prayer. He requested that ADOX provide the standard kosher diet, but his request was denied because “a kosher diet is not a requirement of his religion.”

Shakur sued in federal court alleging that denial of a kosher diet violated his constitutional rights and RLUIPA. The district court granted prison officials summary judgment on all of Shakur’s claims.

On appeal, the Ninth Circuit first examined Shakur’s First Amendment Free Exercise claim. As a threshold matter the Court concluded that the lower court erroneously held that Shakur was required to show that denial of the kosher diet burdened a central tenet of his faith.

Noting the Supreme Court’s disapproval of the “centrality test,” the court agreed with Shakur that under Malik v. Brown, 16 F3d 330 (9th Cir. 1994), “it is the sincerity of his belief rather than the centrality to his faith that is relevant to the free exercise inquiry.” The Court was satisfied, “given his sincere belief that he is personally required to consume kosher meat to maintain his spirituality…that the prison’s refusal to provide a kosher meat diet implicates the Free Exercise Clause.”

On the merits of the claim, the Court applied the reasonable relationship test of Turner v. Safley, 482 U.S. 78 (1987). While finding that the first and second Turner factors weight in favor of ADOC, the Court concluded that the lower court made inadequate findings of fact on the third and fourth factors. As a result, it vacated the grant of summary judgment on that claim.

Turning to the RLUIPA claim, the Court rejected ADOC’s argument “that excessive gas simply does not constitute a substantial burden.” Citing Sefeldeen v. Alameida, No. 05-15809, 2007 WL 1585599 (9th Cir. June 4, 2007), the Court found that “while Sefeldeen is not precedential, it demonstrates that adverse health effects from a prison diet can be relevant to the substantial burden inquiry.” However, “the extent to which Shakur’s gastrointestinal problems interfered with his religious activities is a factual issue for the district court to resolve.”

The Court also noted that in Warsoldier v. Woodford, 418 F3d 989 (9th Cir. 2005), it “observed that a prison policy that ‘intentionally puts significant pressure on inmates…to abandon their religious beliefs…imposes a substantial burden on…religious practice.” See also: Sherbert v. Verner, 374 U.S. 398 (1963). “The extent to which the prison’s policies pressured Shakur to betray his religious beliefs is another factual dispute to be resolved by the district court.”

The Court was highly critical of ADOC’s reliance upon an affidavit of the Pastoral Administrator for the claim “that it would cost about $1.5 million annually to provided Halal or kosher meat to all 850 of its Muslim inmates.” The Court agreed with Shakur that “there is a factual dispute over ADOC’s cost estimate, especially given” the failure to obtain an affidavit from an official specializing in food service or procurement. It is “doubtful,” said the Court, that the Pastoral Administrator “is competent to testify about the cost of procuring prison meals.” The Court was “troubled by the district court’s reliance on this affidavit, especially because the government hears the burden of proving the existence of a compelling state interest. 42 USC § 2000cc-2(6).”

The Court also faulted the district court’s reliance upon “only conclusory assertions that denying Shakur the kosher diet was the least restrictive means of furthering its interest in cost containment.” For each of these reasons, summary judgment on the RLUIPA claim was inappropriate.

The Court also reversed summary judgment on Shakur’s Equal Protection claim, noting that the district court erroneously focused on Shakur’s status as a prisoner rather than his status as a Muslim. As a result, the lower court improperly evaluated the claim under the rational basis test rather than Turner’s four-part balancing test. We believe Turner also would have been the erroneous standard. Based upon Shakur’s membership in a “suspect class” (i.e., Muslim), the court should have applied the “strict scrutiny” test.

Finally, the Court determined that Shakur abandoned his Establishment Clause claim by failing to raise the issue in opposition to summary judgment. See: Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008).

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Related legal case

Shakur v. Schriro