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Brady Religious Sincerity and Imperfection Can Lapsing Prisoners Recover Under Rfpa and Rluipa

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Kevin L. Brady†
Saul and Ananias accidentally killed a man in a bar fight. Both were
sent to the same prison. Saul began reading the Bible and joined a
Protestant denomination. He consistently attended worship services.
Ananias too joined the denomination, but unlike Saul, he did not develop
sincere beliefs. He merely enjoyed Saul’s company and his relationships
with other religious prisoners. Ananias attended only one service and didn’t
own a Bible.
Members of Saul and Ananias’s church held an annual month-long fast,
avoiding meat, eggs, and dairy. The prison accommodated inmates by
providing a special diet, as long as inmates made a written statement
affirming their beliefs and agreed to eat only religious food. Saul and
Ananias provided the necessary statement. Saul explained his beliefs in
detail, while Ananias provided a short, generic statement.
During the fast, Saul traded his religious meal for a plate of prime rib.
Saul immediately regretted his transgression and consulted with his
religious leader, who instructed him that he could receive forgiveness by
faithfully observing the remainder of the fast. Meanwhile, Ananias ignored
the fast by continuing to consume meat. Prison officials learned of the
indiscretions and removed both prisoners from the diet program. The
officials also put them on a one-month probation, barring them from
attending worship services. Did prison officials substantially burden either
Saul’s or Ananias’s exercise of religion?
The founders drafted the First Amendment to prevent government from
interfering with religious exercise. But two decades ago, the Supreme Court
weakened Free Exercise rights in Employment Division v Smith.1 Congress
responded to the Supreme Court by passing the Religious Freedom
Restoration Act (RFRA)2 and the Religious Land Use and Institutionalized
Persons Act (RLUIPA).3 These Acts prevent federal and state officials from
imposing a “substantial burden” on prisoners’ religious exercise, unless the
burden advances “a compelling governmental interest . . . and is the least
restrictive means of furthering that . . . interest.”4
BA 2007, MS 2008, Utah State University; JD Candidate 2012, The University of
Chicago Law School.
1 494 US 872, 878–79 (1990).
2 Pub L No 103-141, 107 Stat 1488 (1993), codified at 42 USC § 2000bb et seq.
3 Pub L No 106-274, 114 State 803 (2000), codified primarily at 42 USC § 2000cc et seq.
4 RLUIPA, 42 USC § 2000cc-1(a). RFRA applies outside the prison context:

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In accordance with these Acts, prison officials often allow inmates to
read scriptures, attend services, eat religious foods, and participate in fasts.
But what happens if officials provide accommodations and inmates fail to
take advantage of them? Must prison officials continue accommodating
these so-called “backsliding” prisoner?5 Circuits are split over this question.
Specifically, courts have recently disagreed whether it is a “substantial
burden” for prisons to withhold religious diets after prisoners fail to keep
them. In Daly v Davis,6 the Seventh Circuit held that removing a violating
prisoner from a kosher food program wasn’t a substantial burden under
RFRA.7 On the other hand, in Lovelace v Lee,8 the Fourth Circuit held that
removing one-time violators from a fasting program was a substantial
burden under the equivalent RLUIPA standard,9 despite a lengthy dissent
from Judge Harvie Wilkinson.
This issue requires clarification. Prison officials need to know the
legality of disciplinary measures, and inmates need to know the
consequences of violating religious accommodations. Moreover, the circuit
split has broad implications: the reasoning in Lovelace and Daly extends to
nondietary religious accommodations. It is therefore unclear if prison
officials must continue holding religious services for prisoners who
occasionally fail to attend.10
This Comment analyzes the current debate and suggests a novel
solution—one that addresses these questions and overcomes the
weaknesses of the current approaches. Part I summarizes the First
Amendment jurisprudence that led to RFRA and RLUIPA and briefly
explains how courts have interpreted these Acts. Part II describes courts’
attempts to determine if removing violating prisoners from dietary
accommodation programs is a substantial burden.

Government shall not substantially burden a person’s exercise of religion even
if the burden results from a rule of general applicability, [unless] . . . it
demonstrates that [the burden] . . . is in furtherance of a compelling
governmental interest, [and] is the least restrictive means of furthering that
compelling governmental interest.
42 USC § 2000bb-1(a)–(b). See also A Jailhouse Lawyer’s Manual ch 27 (Colum Hum
Rts L Rev 2009), online at
(visited Apr 26, 2011).
5 A backsliding prisoner is one who “lapse[s] . . . in the practice of religion.” MerriamWebster, (visited Apr 27,
2011). See also Reed v Faulkner, 842 F2d 960, 963 (7th Cir 1988) (calling a religious
prisoner’s decision to eat meat “backsliding”).
6 2009 WL 773880 (7th Cir).
7 Id at *2–3.
8 472 F3d 174 (4th Cir 2006).
9 Id at 187.
10 Similarly, must prison officials continue allowing prisoners to attend religious
services after they fail to abide by their religious diets? The Fourth Circuit held that
barring attendance is a substantial burden, see Lovelace, 472 F3d at 187–88, but the
other side of the split hasn’t addressed this question.

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Part III argues that courts are focusing on the wrong issue. Both sides
rush to determine whether removing backsliding prisoners is a substantial
burden, but both overlook the critical prior question: Is there even a burden
on religious exercise? To answer this question, courts must know if
prisoners hold sincere religious beliefs. I therefore argue that sincerity is
the determinative inquiry when analyzing the claims of backsliding
prisoners. Unfortunately, courts have not developed a formal sincerity test
in RFRA and RLUIPA cases. Courts should remedy this problem by
applying a modified version of the sincerity test developed for conscientious
objectors to military service in Witmer v United States.11 My approach
allows sincere but imperfect prisoners to exercise their beliefs, but doesn’t
force prison officials to accommodate mendacity.
This Part provides historical context for RFRA and RLUIPA. Part I.A
describes how the Supreme Court’s holding in Smith made it more difficult
for individuals to recover under the Free Exercise Clause of the First
Amendment. Part I.B explains how Congress responded to Smith by
passing RFRA and, eventually, RLUIPA. Part I.C summarizes how courts
have generally interpreted these statutes.
A. Smith and Laws of General Applicability
For decades, the Supreme Court analyzed Free Exercise claims under
the Sherbert test.12 Government could not substantially burden an
individual’s religious practice unless there was a “compelling state interest”
in regulating that practice.13 The Supreme Court significantly changed
Free Exercise jurisprudence in Smith.
Alfred Smith and Galen Black were employees at a private drug
rehabilitation clinic in Oregon.14 Smith and Black lost their jobs after using
peyote as part of a religious ceremony in the Native American Church.
They filed for government unemployment benefits, but were denied because
they had been fired for work-related misconduct. Smith and Black sued,
claiming that the state’s denial of unemployment benefits for religiously
motivated conduct violated the Free Exercise Clause.15
The Court held that Oregon did not violate the First Amendment.
Rather than invoking Sherbert, however, the Court created a new standard
for analyzing Free Exercise claims. It stated that neutral laws of general

348 US 375 (1955).
See Sherbert v Verner, 374 US 398 (1961).
13 See id at 406 (explaining that the gravity of the state interest must be much greater
than merely “some colorable state interest”).
14 Smith, 494 US at 874.
15 Id.

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applicability are valid, even if they incidentally burden religion.16 Under
this standard, the Court determined that Oregon could withhold
unemployment benefits from Smith and Black, since a policy barring
claimants dismissed for drug-related reasons wasn’t directed at a
particular religion.17 By rejecting Sherbert’s compelling interest test, the
Supreme Court set the stage for RFRA and RLUIPA.
B. Congressional Responses to Smith
1. The Religious Freedom Restoration Act.
The Supreme Court’s holding in Smith created apprehension among
scholars and believers. Many worried that Smith would leave religious
adherents without judicial recourse in the face of laws that inadvertently
restricted religious exercise.18 Congress responded quickly and nearly
unanimously by passing the Religious Freedom Restoration Act of 1993.19
RFRA established a new statutory cause of action for infringements on
religious freedom.
The Act states, “Government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of general
applicability.”20 Government actors can escape liability if they show that
any burden they impose “(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.”21 The stated goal of this statutory cause of action
was to overrule Smith and to restore the Sherbert balancing test.22
As originally written, RFRA applied to state and federal government
officials.23 In City of Boerne v Flores,24 however, the Supreme Court held
Id at 877–82 (noting, as an example, that an individual would not be exempt from
paying a tax merely because his religion teaches that supporting organized
government is sinful). See also Church of the Lukumi Babalu Aye v Hialeah, 508 US
520, 533–34, 542–43 (1993) (defining neutral laws of general applicability).
17 Smith, 494 US at 889 (determining that the First Amendment’s protections of
religious liberty do not require the Court to hold to the contrary).
18 See discussion in Robert S. Alley, The Constitution and Religion: Leading Supreme
Court Cases on Church and State 483–501 (Prometheus 1999). See also Douglas
Laycock, Formal Substantive and Disaggregated Neutrality Toward Religion, 39
DePaul L Rev 993, 1000 (1990) (calling Smith a “stunning opinion” that allowed the
government to “regulate the Mass for good reasons, bad reasons, or no reasons at all”).
19 See 107 Stat 1488 (cited in note 2). See also 139 Cong Rec S 14470 (daily ed Oct 27,
1993) (tallying the roll call at 97-3, indicating that even some opponents of the RFRA
ended up voting for it).
20 42 USC § 2000bb-1(a)
21 42 USC § 2000bb-1(b).
22 See 42 USC § 2000bb (finding that in Smith, the Court essentially “eliminated the
requirement that the government justify burdens on religious exercise imposed by laws
neutral toward religion”).
23 See RFRA § 2000bb, 107 Stat at 1489 (cited in note 2) (“[T]he term ‘government’
includes a branch, department, agency, instrumentality, and official (or other person
acting under color of law) of the United States, a State, or a subdivision of a State.”).
24 521 US 507 (1997).

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that RFRA was unconstitutional as applied to states because it exceeded
Congress’s limited powers to enforce the Fourteenth Amendment against
state actors.25 RFRA still applies to the federal government,26 and federal
prisoners who do not receive religious accommodations may bring claims
under RFRA.27
2. The Religious Land Use and Institutionalized Persons Act.
In the wake of Flores, Congress again responded to the Supreme Court,
this time passing the Religious Land Use and Institutionalized Person Act
of 2000.28 RLUIPA amended RFRA so that it no longer purported to apply
to state actors.29 More importantly, RLUIPA established two new causes of
actions: one for landowners,30 another for state prisoners.31
State prisoners can recover if prison officials substantially burden their
religious exercise. The relevant language in RLUIPA is nearly identical to
the language in RFRA: “No government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution
. . . even if the burden results from a rule of general applicability.”32 As
under RFRA, government actors are not liable if they show that the burden
“(1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental
Congress relied on the Spending Clause34 rather than the Fourteenth
Amendment to implement RLUIPA.35 State prisons must abide by RLUIPA

See id at 536 (reasoning that because Congress legislated beyond its authority, the
Supreme Court’s precedent, and not the RFRA, controls). See also US Const Amend
XIV (“The Congress shall have power to enforce, by appropriate legislation, the
provisions of this [Amendment].”).
26 See Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418, 423
(2006) (explaining that the RFRA prohibits the federal government from substantially
burdening an individual’s free exercise of religion).
27 See, for example, Daly, 2009 WL 773880, *2 (holding that the plaintiff prisoner could
not prevail on his RFRA claim brought after he was suspended from the prison kosher
food program, not because RFRA cannot be used by prisoners, but because the plaintiff
could not prove that his exercise of religion had been substantially burdened).
28 Pub L No 106 274, 114 Stat 803, at 42 USC § 2000cc (2000) (cited in note 3).
29 42 USC § 2000cc-3 (specifying that the Act does not preempt state law).
30 42 USC § 2000cc (stipulating that, normally, the government may not implement a
land use regulation that would impose a substantial burden on an individual’s
religious exercise).
31 42 USC § 2000cc-1.
32 42 USC § 2000cc-1(a).
33 Id.
34 US Const Art I, § 8, cl 1.
35 See 42 USC § 2000cc-1(b). RLUIPA is therefore immune to the constitutional
challenges that limited RFRA. See South Dakota v Dole, 483 US 203, 207 (1987)
(explaining that objectives that are traditionally not thought to be contained within US
Const Art I’s “enumerated legislative fields” may still be attained through the use of
spending power and the conditional grant of federal funds).

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only if they accept federal funds36—though nearly all state prisons receive
at least some federal funds.37 In the only Supreme Court case interpreting
RLUIPA, the Court held that the Act does not violate the Establishment
Clause because it simply restores prisoners’ rights that were removed upon
C. The Relationship between RFRA and RLUIPA
Courts generally interpret the relevant standards in RFRA and
RLUIPA uniformly. The substantial burden language in RFRA and
RLUIPA is practically identical. Also, RLUIPA’s history indicates that both
Acts prohibit the same conduct; Congress passed RLUIPA explicitly to
patch a hole in RFRA protection after the Court’s Flores decision. Despite
substantial similarities, one difference between the Acts is that
“government” under RFRA includes only federal government, whereas
“government” under RLUIPA includes only state government.39
Nevertheless, courts have interpreted the phrases “substantial burden on
the religious exercise of a person” and “substantially burden a person’s
exercise of religion” equivalently under both statutes.40 Courts rely on
RFRA precedents when interpreting RLUIPA, and vice versa.41 This is an
important point because some of the cases discussed in Part II rely on
RFRA, while others rely on RLUIPA.
Both Acts incorporate the First Amendment’s definition of “religious
exercise.”42 Under either Act—as under the First Amendment—a claimant
can recover only if her beliefs are “religious in nature” and “sincerely
held.”43 I argue below that courts have not paid sufficient attention to the
sincerity requirement in RFRA and RLUIPA cases.
See, for example, Sossamon v Lone Star State of Texas, 560 F3d 316, 330 (5th Cir
2009) (explaining that it is clear that state prisons take on an obligation under
RLUIPA by accepting federal funding).
37 See, for example, Sarah Kerr, Litigation and Legislation Efforts to Improve Mental
Health Treatment for Prisoners in New York State Prisons, 224 Prison L 153, 160 n 25
(2010) (explaining that most state prisons, jails, and probation programs receive
federal funding).
38 See Cutter v Wilkinson, 544 US 709, 720 (2005) (finding additionally that RLUIPA
comports with Supreme Court precedent by ensuring courts applying the Act take into
account the burdens of a requested accommodation and be satisfied that the Act is
applied neutrally among different religions).
39 See text accompanying notes 26–34, 38.
40 See Cutter, 544 US at 725 (calling RFRA “the same heightened scrutiny standard as
RLUIPIA”); Fowler, 534 F3d at 937–38 (calling a case decided under RFRA “markedly
similar” to a case being decided under RLUIPA).
41 See, for example, Fowler v Crawford, 534 F3d 931, 937–38 (8th Cir 2008) (holding
that a RFRA case “dictate[d] the outcome” in the RLUIPA case before the court); Daly,
2009 WL 773880, *2 (citing a RFRA case to decide a RLUIPA case).
42 See Part III.A.2.
43 Africa v Pennsylvania, 662 F2d 1025, 1030 (1981) (noting that the “religious in
nature” and “sincerely held” elements are threshold requirements to making out such
a claim). See also A Jailhouse Lawyer’s Manual ch 27 at 12 & n 108 (cited in note 4)

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Neither Act defines “substantial burden.” The Supreme Court has not
interpreted the phrase in the context of RFRA or RLUIPA, but its
definition is generally constant across circuits.44 Lower courts have
concluded that substantial burden has the same meaning under both
Acts,45 and that both Acts adopt the Supreme Court’s definition of
substantial burden from pre-Smith Free Exercise cases.46 In these cases, a
burden is substantial if it “pressure[s]” an adherent “to modify his behavior
and to violate his beliefs.”47 This pressure can result either from
government officials conditioning a benefit on the adherent violating her
beliefs, or from penalizing an adherent for practicing her beliefs.48
In sum, a prisoner who brings a RFRA or RLUIPA claim must show
that prison officials burdened her exercise of religion and that the burden is
substantial. If a prisoner proves both elements, prison officials must show a
compelling interest and the use of least restrictive means. Part II
demonstrates that courts currently analyze the claims of backsliding
prisoners by focusing on the second element—whether a burden is
(discussing cases that articulate these two prongs); Lovelace, 472 F3d at 187 n 2
(“RLUIPA bars inquiry into whether [the] belief or practice is central to a prisoner's
religion. . . . RLUIPA does not, however, preclude inquiry into the sincerity of a
prisoner's professed religiosity.”).
44 See Lovelace, 472 F3d at 187 (“[C]ircuits have articulated generally consistent
definitions of ‘substantial burden’ under RLUIPA.”). But see Scott Budzenski,
Comment, Tug of War: The Supreme Court, Congress, and the Circuits—The Fifth
Circuit's Input on the Struggle to Define a Prisoner's Right to Religious Freedom in
Adkins v. Kaspar, 80 St John’s L Rev 1335, 1346–50 (2006) (outlining what the author
terms “different approaches” that circuit courts have taken to defining “substantial
45 See, for example, Fowler, 534 F3d at 937–38; Daly, 2009 WL 773880, *2–3. See also
A Jailhouse Lawyer’s Manual ch 27 at 1 (cited in note 4)(noting that both RFRA and
RLUIPA use the same language to describe the protections provided to prisoners).
46 See Civil Liberties for Urban Believers v Chicago, 342 F3d 752, 760–761 (7th Cir
2003), quoting Religious Land Use and Institutionalized Persons Act of 2000, S2869,
106th Cong, 2d Sess (July 27, 2000) 146 Cong Rec 7774-01, 7776 (“The term
‘substantial burden’ as used in [RLUIPA] is not intended to be given any broader
interpretation than the Supreme Court’s articulation of the concept of substantial
burden of religious exercise.”); Lovelace, 472 F3d at 187 (“We likewise follow the
Supreme Court’s guidance in the Free Exercise Clause context.”).
47 Lovelace, 472 F3d at 187, quoting Thomas v Review Board, 450 US 707, 718 (1981)
(explaining the Free Exercise substantial burden standard).
48 See Lovelace, 472 F3d at 187 (“[A substantial burden] forces a person to ‘choose
between following the precepts of her religion and forfeiting [governmental] benefits,
on the one hand, and abandoning one of the precepts of her religion . . . on the other
hand.’”), quoting Sherbert, 374 US at 404. See, for example, Midrash Sephardi, Inc v
Surfside, 366 F3d 1214, 1227 (11th Cir 2004) (stating that an individual’s exercise of
religion may be substantially burdened if a regulation completely prevents him from
engaging in an activity mandated by his religion, or requires him to participate in an
activity prohibited by his religion); Adkins v Kaspar, 393 F3d 559, 570 (5th Cir 2004)
(explaining that a substantial burden on religious exercise may occur if a government
action “truly pressures” the individual to “significantly modify” his behavior and
“significantly violate his religious beliefs).

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substantial. Part III argues that the emphasis is misplaced. Courts should
focus on the first element—whether there is a burden on religious exercise.
The first element is particularly relevant when dealing with backsliding
prisoners, since backsliding raises doubts about sincerity of the prisoner’s
RFRA and RLUIPA require federal and state prisons officials to make
accommodations for prisoners’ religious dietary needs.49 For example, state
prison officials may be liable under RLUIPA if they do not offer kosher food
to Jewish prisoners.50 Nevertheless, courts have disagreed about the
implications of a prisoner who fails to take advantage of accommodations.
Specifically, courts have disagreed whether removing backsliding prisoners
from accommodation programs is a substantial burden under RFRA and
RLUIPA. Part II.A discusses cases in the Seventh and Eighth Circuits,
which conclude that removal isn’t a substantial burden. Part II.B discusses
cases in the Fourth and Sixth Circuits, which conclude otherwise. Part II.C
summarizes the debate.
A. Removing Backsliding Prisoners Is Not a Substantial Burden
In Brown-El v Harris,51 the Eighth Circuit held that suspending the
religious meals of a prisoner who had violated the Ramadan fast was
proper.52 Keith Brown-El was a Muslim prisoner at a Missouri state prison.
He participated in a program that allowed him to eat specially prepared
meals after dark so he could observe the Ramadan fast. The program’s
written policy stated that officials would remove prisoners who ate meals
during daytime. Brown-El fought a prison guard and was placed in the
infirmary, where he voluntarily ate a daytime meal. The prison then
removed Brown-El from the fasting program. Brown-El first claimed that
his religion made an exception for adherents who were injured, but didn’t
offer any evidence of this tenet.53
Brown-El’s second claim was that even if he broke his religious fast by
eating daytime food, removal for a single infraction violated his First
Amendment rights. The Eighth Circuit rejected this claim, holding that
See 28 CRF § 548.20 (providing that prisons must give inmates requesting religious
diets meals that reasonably and equitably allow them practice their religion).
50 See discussion in Colvin v Caruso, 605 F3d 282, 289 (6th Cir 2010) (finding that the
plaintiff prisoner could not prevail in his RLUIPA claims only because he requested
relief in forms unavailable under the statute, or did not properly target his complaint,
and not because of anything having to do with the validity of bringing this sort of claim
under RLUIPA).
51 26 F3d 68 (8th Cir 1994).
52 See id at 69–70 (explaining that the prison had not forced the plaintiff to violate his
religious beliefs).
53 See id (finding that Brown-El “placed himself outside the group of worshippers”
granted special dietary accommodations by eating a daytime meal).

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“[t]he policy did not coerce worshippers ‘into violating their religious
beliefs; nor [did it compel] them, by threat of sanctions, to refrain from
religiously motivated conduct.’”54 In other words, removing
accommodations when a prisoner fails to take advantage of them does not
substantially burden the exercise of religion because there is no pressure.
In such cases, the prisoner chooses to remove herself by rejecting an
accommodation. The court analyzed this claim under the First Amendment,
but the court stated that Brown-El’s claim would similarly fail under
RFRA’s substantial burden requirement.55
The Seventh Circuit recently analyzed a similar RFRA claim and
reached the same conclusion.56 James Daly, a Jewish inmate in a federal
penitentiary, participated in a program that allowed prisoners to receive
kosher food. Prison guards saw Daly eating non-kosher food on three
separate occasions. Daly was temporarily removed from the program each
As a federal prisoner, Daly brought his claim under RFRA. The Seventh
Circuit held that the federal prison was justified in removing Daly from the
dietary accommodation program.58 The court stated that removal was not a
substantial burden because it did not “compel conduct contrary to religious
beliefs: Daly was forced to eat the non-kosher meals only because he turned
down the kosher ones.”59 Much like the Eighth Circuit, the Seventh Circuit
held that removing a straying prisoner from an accommodation program
was not a substantial burden because the prisoner voluntarily opted out of
the program by choosing to violate personal religious beliefs.
Daly also claimed that prison officials failed to “establish that his
suspension was the least restrictive means of furthering a compelling
governmental interest,”60 as required under RFRA. But the court stated
this argument “puts the cart before the horse.”61 The compelling interest
inquiry is relevant only after a prisoner shows that prison officials
substantially burdened religious exercise.

Id at 70, citing United States v Means, 858 F2d 404, 407 (8th Cir 1988) (noting that
the plaintiff was unable to establish that he himself had not voluntarily broken the
55 26 F3d 69. Even though Brown-El was in a state prison, the court analyzed his claim
under RFRA because, at the time, courts still assumed the Act was valid against state
56 See Daly, 2009 WL 773880, *2 (7th Cir) (noting that the plaintiff there himself
admitted to having eaten non-Kosher food).
57 Id at *1.
58 See id at *2 (explaining that the prison’s rules did not substantially burden Daly’s
free exercise of religion after he chose to eat non-Kosher food).
59 Id.
60 Daly, 2009 WL 773880, *2.
61 Id, quoting Navajo Nation v United States Forest Service, 535 F3d 1058,1076 (9th
Cir 2008).

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B. Removing Backsliding Prisoners Is a Substantial Burden
In Lovelace, the Fourth Circuit disagreed with the Seventh and Eighth
Circuits’ discussion of substantial burden.62 Like the prison in Brown-El, a
Virginia state prison accommodated Muslim prisoners during Ramadan by
allowing them to eat before sunrise and after sunset.63 Prisoners who
violated the fast were unable to continue participating. A prison guard
accused Leroy Lovelace of eating a daytime meal after Lovelace had
complained of rotten milk. Although the guard later admitted he had been
confused, Lovelace was removed from the program.64 Adding insult to
injury, prison officials did not allow him to participate in worship services
or group prayers.65 Lovelace sued under RLUIPA.
The Fourth Circuit held that the Virginia prison placed a substantial
burden on Lovelace’s exercise of religion because he was under “pressure
. . . to modify his behavior and to violate his beliefs.”66 The court stated that
removing Lovelace from the fasting program substantially burdened his
religious exercise if he had not violated the fast by eating during the day.67
But the court went further. It also stated that the prison’s policy of
removing violating inmates from accommodation programs was a
substantial burden.68 In other words, the prison policy was a substantial
burden on Lovelace’s exercise of religion, regardless whether Lovelace had
broken his fast. The court noted it was irrelevant “that the burden on
Lovelace’s religious exercise resulted from discipline . . . rather than from
the prison’s failure to accommodate.”69
Because Lovelace had shown that the prison’s policy substantially
burdened his exercise of religion, the burden shifted to the prison to show
that the burden furthered “a compelling governmental interest; and [was]
the least restrictive means of furthering that . . . interest.”70 Prison officials
asserted that they had a “legitimate interest in removing inmates from
religious dietary programs where the inmate flouts prison rules.”71 The
court held that this interest was inadequate. It remanded the case to allow
Lovelace, 472 F3d at 187 (holding that the plaintiff’s removal from the Ramadan
observance list was a substantial burden on his religious freedom).”
63 Lovelace, 472 F3d at 182–83.
64 Id at 183–84.
65 Id at 187 (noting that Lovelace was forbidden from participating in the group prayer
services that were held immediately prior to or following the special Ramadan meals).
66 Id at 187, quoting Thomas, 450 US at 718 (explaining the Supreme Court’s
definition of a “substantial burden”).
67 Lovelace, 472 F3d at 187 (noting that removing him from the dietary program also
infringed on his ability to access the group prayers).
68 Id at 188 (explaining that inmates may be religious in some aspects and not in
others, so that an inmate may decide not to fast but still be religious about attending
group prayer services).
69 Id.
70 42 USC § 2000cc-1(a).
71 Lovelace, 472 F3d at 190 (noting that the prison did not elaborate on why this
interest is compelling).

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prison officials to “provid[e] an explanation for the policy’s restrictions that
takes into account any institutional need to maintain good order, security,
and discipline or to control costs.”72 The asserted interest would also need
to be the least restrictive means of furthering the interest.73
The court’s opinion elicited a strong dissent from Judge Wilkinson. He
agreed with the Eighth Circuit that prisons officials need not continue
accommodating backsliding prisoners.74 Judge Wilkinson also argued that
a prisoner’s violation of dietary restrictions was presumptive evidence of
religious insincerity.75 Finally, he accused the majority of “[d]isregarding
the deference historically accorded prison administrators,” predicting “[t]he
only certainty that the majority guarantees is litigation over matters large
and small, with federal courts thrust into a role they have sought
assiduously to avoid—that of micromanaging state prisons.”76
Although Lovelace sued under RLUIPA and Daly sued under RFRA, the
resulting disagreement between the Fourth and Seventh Circuits is not
simply a result of courts applying two different statutes. After all, RFRA
and RLUIPA use equivalent language and courts have consistently held
that substantial burden has the same meaning under both Acts.77
The Sixth Circuit sided with the Lovelace majority in dicta. In Colvin v
Caruso,78 the court considered whether state prison officials had violated
RLUIPA when they removed Kenneth Colvin from a kosher meal program
after he had eaten non-kosher food on multiple occasions.79 Although the
court dismissed Colvin’s RLUIPA claim as moot,80 it noted that the prison’s
“policy of removing a prisoner from the kosher-meal program for mere
possession of a non-kosher food item may be overly restrictive of inmates’
religious rights.”81 The District of New Hampshire similarly expressed
skepticism about the validity of a policy that removed violating prisoners
Id at 190 (stating that the explanation would be accepted with “due deference”).
Id at 191 (explaining that the defendants here did not show how their actions
constituted the least restrictive means of furthering their interest).
74 See id at 207 (Wilkinson dissenting) (arguing that a “sincerity requirement” for
prisoners to continue participating in the Ramadan program is not a substantial
burden on their religious freedom).
75 Lovelace, 472 F3d at 207 (Wilkinson dissenting) (“The Keen Mountain policy
accommodates Ramadan observance only for those inmates who actually observe the
Ramadan fast. Such a sincerity requirement is in no way a substantial burden on
religious exercise.”).
76 Id at 204 (Wilkinson dissenting) (citations omitted) (insisting that the majority’s
decision offers no guidance to prison administrators or district courts grappling with
similar issues).
77 See Part I.C.
78 605 F3d 282 (6th Cir 2010).
79 See id at 286–87 (explaining that the plaintiff had been placed on the kosher meal
program after a court order stemming from a previous law suit).
80 Id at 289 (finding his claim was moot because he requested monetary damages,
unavailable under RLUIPA, and because he requested declaratory and injunctive relief
but directed this request at the wrong policies and procedures).
81 Id at 296 (pointing to the circuit split developing over this issue).

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from religious dietary programs.82 The court stated that “[w]hile the prison
certainly has a valid interest in weeding out insincere requests for religious
diets, there is some question whether that interest is truly compelling.”83
C. Summarizing the Debate
It is “open to question” whether prison officials violate RLUIPA or
RFRA when they remove prisoners from religious dietary programs after
prisoners break religious diet.84 Both sides agree that substantial burden is
the critical issue. They merely disagree whether removal “put[s]
substantial pressure on an adherent . . . to violate his beliefs.”85
In Daly, the Seventh Circuit held that removing wayward adherents is
not a substantial burden under RFRA, since they “choose” to remove
themselves when they choose to violate their beliefs.86 Under this view,
prisoners are not under pressure to violate their beliefs because they can
remain in the program simply by not violating their religion’s dietary
restrictions. The Eighth Circuit agreed with this conclusion in dicta.87 In
Lovelace, the Fourth Circuit reached the opposite result under RLUIPA. In
the court’s view, it didn’t matter if expulsion from the program was the
result of a voluntary choice. It mattered only that the prisoner was unable
to practice his religion after removal.88 The Sixth Circuit and the District of
New Hampshire agreed with this conclusion in dicta.89
Part III argues that courts should shift the inquiry away from
substantial burden and onto religious sincerity. My solution also addresses
the broader implications of this circuit split. In particular, the
disagreement centers on the narrow issue of dietary accommodations, but
the courts’ reasoning seems to extend to other instances of religious
accommodations. The Fourth Circuit held that preventing Lovelace from
attending worship services was a substantial burden, even though he had

See Kuperman v Warden, 2009 WL 4042760, *6 (D NH) (granting summary
judgment to the prison due to its changes in policy that the court determined resolved
plaintiff’s problems).
83 Id (questioning whether the prison’s interest in this situation was actually
84 Id at *7 (noting that the court did not need to weigh in on the debate, since the
plaintiff’s claims were moot).
85 Thomas, 450 US at 718 (explaining that even in the case of indirect compulsion, the
effect on free religious exercise may be substantial).
86 2009 WL 773880, *2 (noting that Daly himself made the choice to veer from his
kosher diet).
87 See Brown-El, 26 F3d at 69 (disagreeing with the district court, which had held the
prison policy violated Brown-El’s religious freedoms).
88 See Lovelace, 472 F3d at 187 (observing the substantial nature of the burden on
Lovelace when he was denied the Ramadan meal plan).
89 See Colvin, 605 F3d at 296 (adopting the reasoning in Lovelace to illustrate the
substantial burden on the prisoner); Kuperman, 2009 WL 4042760, *6 (noting the split
between the Fourth and Eight Circuits).

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broken his fast.90 But courts on the other side of the split have not stated
their views on this issue.
This Part resolves the circuit split by developing a new framework for
analyzing prisoners’ RFRA and RLUIPA claims. I argue that the inquiry in
both Daly and Lovelace is misguided: the relevant question is not whether
removing prisoners from accommodation programs is a substantial burden,
but whether prisoners have sincere beliefs. Part III.A derives this
framework from the Acts themselves. Part III.B discusses the advantages
of a sincerity-centered approach. Part III.C applies the approach to Saul
and Ananias, the hypothetical prisoners from the Introduction.
A. Religious Sincerity as the Determinative Inquiry
1. Withholding religious accommodations from backsliding prisoners is
a substantial burden if their beliefs are sincere.
This section argues that RFRA and RLUIPA codified the pre-Smith
definition of “substantial burden,” which developed in a line of Free
Exercise cases starting with Sherbert. I show that under pre-Smith
jurisprudence, removing violating prisoners from accommodation programs
is a substantial burden. I thus accept the Fourth Circuit’s conclusion in
Lovelace, but my acceptance is qualified: removing prisoners is an illegal
burden only if removal precludes conduct motivated by sincere beliefs. This
suggests that the proper inquiry in backsliding cases is whether sincere
beliefs motivate the prisoner’s desire to continue participating.
a. RFRA and RLUIPA codified the pre-Smith definition of substantial
burden. Congress passed RFRA in response to the Supreme Court’s
decision in Smith.91 Smith held that religiously neutral laws of general
applicability are valid under the Free Exercise Clause, even if they
incidentally burden religion.92 There are at least three reasons courts
should interpret “substantial burden” under RFRA the same way courts
used the term before Smith.
First, RFRA’s stated purpose is to return to pre-Smith Free Exercise
jurisprudence. The Act states that Smith “virtually eliminated the
requirement that the government justify burdens on religious exercise
imposed by [neutral laws].”93 The Act further states that “the compelling
interest test as set forth in prior Federal court rulings is a workable test for
striking sensible balances.”94 The Act then declares its purposes:

See Lovelace, 472 F3d at 187.
See notes 19–23 and accompanying text.
92 Smith, 494 US at 874 (1990).
93 42 USC § 2000bb(a)(4).
94 42 USC § 2000bb(a)(5) (explaining that the balances struck are between religious
liberty and competing prior governmental interest).

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to restore the compelling interest test as set forth in [Sherbert] and
[Wisconsin v Yoder] and to guarantee its application in all cases where
free exercise of religion is substantially burdened; and to provide a claim
or defense to persons whose religious exercise is substantially burdened
by government.95
This express attempt to codify pre-Smith Free Exercise jurisprudence
indicates that courts should interpret the statute according to pre-Smith
case law.
Second, RFRA incorporates the phrase “substantially burden,”96
wording that the Supreme Court frequently used in pre-Smith case law. In
Thomas v Review Board,97 the Court stated, “[w]here the state . . . [puts]
substantial pressure on an adherent to modify his behavior and to violate
his beliefs, a burden upon religion exists. While the compulsion may be
indirect, the infringement upon free exercise is nonetheless substantial.”98
References to substantial burdens or infringements also appeared in
Sherbert and Wisconsin v Yoder,99 along with a number of Supreme Court
decisions in the latter half of the twentieth century.100 RFRA’s textual
incorporation of an oft-repeated phrase, along with the stated attempt to
return to pre-Smith jurisprudence, indicates that the RFRA adopted the
Supreme Court’s definition.
Third, circuit courts have agreed that RFRA and RLUIPA adopted the
meaning of substantial burden from pre-Smith cases. Notably, the splitting
courts discussed in this Comment agreed that a substantial burden exists
when the state places “pressure on an adherent . . . to violate his beliefs,”101
thereby embracing the language from Thomas. The near unanimity among
circuits, along with the arguments discussed above, provides strong
evidence that RFRA adopted the Supreme Court’s pre-Smith definition of
substantial burden.102
42 USC § 2000bb(b)(1)–(2) (emphasis added). See also Sherbert, 374 US 398;
Wisconsin v Yoder, 406 US 205 (1972).
96 42 USC § 2000bb-1(a) (stating that government may not “substantially burden”
religious liberty).
97 450 US 707 (1981).
98 Id at 717–18 (emphasis added) (noting the coercive impact on Thomas because of the
choice had to make between religious beliefs and his employment).
99 406 US 205 (1972).
100 See Sherbert, 374 US at 406 (“substantial infringement”); Yoder, 406 US at 218
(“substantially interfering”); Hobbie v Unemployment Appeals Commission, 480 US
136, 141 (1987), citing Thomas, 450 US at 717 (“substantial pressure”); Hernandez v
Commissioner of Internal Revenue, 490 US 680, 699 (1989) (“substantial burden”).
101 Lovelace, 472 F3d at 187 (noting that this substantial burden forces the individual
to make a choice between governmental benefits on the one hand, and his religious
beliefs on the other); Daly, 2009 WL 773880, *2–3 (explaining that a substantial
burden would force an individual to partake in conduct contrary to his religious
beliefs). Both cases cited the standard in Thomas, 450 US at 717–18.
102 See also Religious Land Use and Institutionalized Persons Act of 2000, S2869,
106th Cong, 2d Sess (July 27, 2000) 146 Cong Rec 7774-01, 7776 (“The term

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Related factors suggest that RLUIPA incorporated the same definition
of substantial burden. Congress passed RLUIPA after the Court held that
RFRA did not apply to state actors, and the statute contains nearly
identical language. As a result, courts have recognized that RLUIPA also
adopted the pre-Smith definition of substantial burden.103
b. Removal a substantial burden under pre-Smith jurisprudence. As
noted, Lovelace and Daly agreed that RFRA and RLUIPA adopted the preSmith definition of substantial burden. In light of this agreement, it is
surprising that neither took the next step. Neither court asked if removing
accommodations from a violating prisoner is a substantial burden under
pre-Smith law. Instead of examining precedent, both courts simply asked
whether officials pressured or compelled the prisoners to violate their
beliefs.104 The courts’ laconic explanations make it difficult to understand
why they reached opposing conclusions. Fortunately, a principle revealed in
pre-Smith Supreme Court cases answers the substantial burden question.
To determine if eliminating accommodations would have been a
substantial burden pre-Smith, it may be helpful to start with an analogy.
Assume that workers can receive state unemployment benefits after
voluntarily quitting jobs, but only if they quit for good cause. In most cases,
workers have good cause if they quit because a job forced them to violate
their religious beliefs.105 Tom quit because he was transferred to a factory
manufacturing tank parts, and creating weapons violates his religious
beliefs. Before his transfer to the tank factory, Tom worked in a steel
factory. It is reasonable to assume that the steel was ultimately used in
weapons. Pre-Smith, could the government withhold otherwise required
accommodations—unemployment benefits—because Tom either had
violated his beliefs or was at least inconsistent?
This was the story in Thomas. The Indiana Supreme Court held that
denying unemployment benefits didn’t violate his Free Exercise rights
because it was “unclear what his belief was, and what the religious basis of
his belief was.”106 The United States Supreme Court reversed, finding that
denial of benefits placed a substantial burden on his religious exercise.
‘substantial burden’ as used in [RLUIPA] is not intended to be given any broader
interpretation than the Supreme Court’s articulation of the concept of substantial
burden of religious exercise.”).
103 See Lovelace, 472 F3d at 187. See also Fowler, 534 F3d at 937–38 (holding that a
RFRA case “dictate[d] the outcome” in the RLUIPA case before the court).
104 Compare Lovelace, 472 F3d at 187 (“[A] ‘substantial burden’ is one that ‘put[s]
substantial pressure on an adherent to modify his behavior and to violate his beliefs.”),
with Daly, 2009 WL 773880, *2 (“[T]he program [does not] compel conduct contrary to
religious beliefs.”).
105 See Bowen v Roy, 476 US 693, 708 (1986) (noting that the “good cause” standard
created a mechanism for individualized exemptions, and if a state which has created
the mechanism refuses to extend an exemption in an instance of religious hardship, its
discriminatory intent is suggested).
106 Thomas v Review Board, 391 NE2d 1127, 1133 (1979) (noting that there was no
pressure placed on Thomas to quit his job).

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“[Eddie Thomas] was put to a choice between fidelity to religious belief or
cessation of work.”107 It did not matter that it “was reasonable to assume”
he had previously worked on steel used in war.108 It only mattered that
Thomas sincerely believed his religion barred him from working on tank
parts at the time he quit his job and requested the religious
Thomas indicates that the substantial burden inquiry is temporally
limited to the point in time when the claimant requests an accommodation.
Other pre-Smith cases reflect this principle. After working at a jewelry
store for over two years, Paula Hobbie became a Seventh-Day Adventist.
She refused to work on Saturdays and lost her job. Florida then denied her
request for unemployment benefits. In Hobbie v Unemployment Appeals
Commission,110 the Court held that Florida had behaved improperly. The
Court reached this conclusion by determining that a sincere religious belief
motivated Hobbie at the time she stopped working on Saturdays—her past
behavior was irrelevant.111 In Yoder, the Supreme Court held that
requiring Old Order Amish parents to send their teenagers to secondary
school, contrary to Amish religious teachings, “substantially interfer[ed]”
with their religious exercise.112 The Court did not inquire into whether they
had ever sent their teenagers to secondary schools or whether they had
ever violated tenets of their faith. The question was whether the parents
currently believed that sending their teenagers to school violated their
religious convictions.113
These pre-Smith cases resolve the substantial burden question in the
prison context. Courts should ignore past conduct—including past
violations—and simply ask if removal prevents the prisoner from exercising
sincerely held religious beliefs. If so, the burden is substantial. Because
removing prisoners from dietary programs makes it impossible for them to
maintain religious diets, removal is a substantial burden on prisoners
motivated by sincere religious beliefs.

Thomas, 450 US at 717 (noting that the coercive impact on Thomas was equivalent
to that placed on the employee in Sherbert).
108 Id at 711 n 3 (recounting Thomas’s statement that he would have no difficulty doing
the type of work he had previously done in the roll foundry).
109 See id at 716–18 (analogizing this case to Sherbert, because in both, employees were
terminated from an employment that had at one time been acceptable to them and
their religious beliefs, but that changed conditions rendered the work unacceptable to
them). See also id at 715 (“We see, therefore, that Thomas drew a line, and it is not for
us to say that the line he drew was an unreasonable one.”).
110 480 US 136 (1987).
111 See id at 144 (“The timing of Hobbie’s conversion is immaterial to our
determination that her free exercise rights have been burdened; the salient inquiry
under the Free Exercise Clause is the burden involved.”).
112 Yoder, 406 US at 218 (noting that forcing Amish parents to send their children to
schools contravened the religious tenets of both the parents and the children).
113 See id at 235–36 (finding that the plaintiffs also carried their burden of showing
that their alternative schooling methods were adequate).

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The rules of construction accompanying RLUIPA strengthen the
conclusion that removing sincere prisoners from accommodation programs
for past violations is a substantial burden: “This chapter shall be construed
in favor of a broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution.”114 The “broad
protection” and “maximum extent” language indicates that courts should
err on the side of finding substantial burdens.
One possible objection is that the substantial burden inquiry doesn’t
apply to prisoners. As demonstrated in O’Lone v Shabazz,115 courts did not
apply Sherbert’s substantial burden framework to prisoners before Smith.
Instead, courts applied a standard of review that was more deferential to
officials’ “legitimate penological interests.”116 But RFRA implicitly rejected
O’Lone by not preserving O’Lone’s prison exception. Moreover, RLUIPA
explicitly rejected O’Lone by overtly extending the substantial burden
inquiry to prisoners. Thus, neither RFRA nor RLUIPA maintains the
penological interests exception.
The Fourth Circuit was therefore correct in holding that Lovelace’s
removal from the fasting program was a substantial burden. But my
acceptance of Lovelace comes with a caveat: rules prohibiting behavior
should be considered substantial burdens if and only if the behavior is
religiously motivated. The relevant question in accommodation cases is
whether prisoners have sincere beliefs. While past violations are not
relevant to the substantial burden question, they are to the sincerity
2. Religious sincerity is the determinative issue when analyzing
backsliding prisoners’ claims.
This section notes that RFRA and RLUIPA also codified the pre-Smith
definition of religious exercise. I discuss religious exercise under pre-Smith
jurisprudence and demonstrate that sincerity is an important element. I
also show that courts generally recognize sincerity as the determinative
question in analogous backsliding cases under the Free Exercise Clause.
These propositions strengthen my conclusion above: the key issue in
analyzing backsliding prisoners’ RFRA and RLUIPA claims is sincerity of
a. Religious exercise under pre-Smith jurisprudence. As outlined above,
RFRA and RLUIPA adopted the pre-Smith definition of substantial
burden.117 For similar reasons, these Acts also assumed the pre-Smith
definition of religious exercise. In particular, they incorporated a specific
phrase used both in the Constitution and in Sherbert jurisprudence.

42 USC § 2000cc-3(g).
482 US 342 (1987).
116 Id at 349 (noting that this approach avoids unnecessary intervention of judicial
117 See Part III.A.1.

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Additionally, RFRA specifically states, “the term ‘exercise of religion’
means religious exercise, as defined in [RLUIPA]”118
Under pre-Smith case law, courts first determined whether a belief or
act qualified as religious exercise before asking if an alleged burden was
substantial. Courts asked two questions: Are the beliefs “religious in
nature” and are they “sincerely held”?119 Determining if beliefs are religious
is “a most delicate question.”120 In general, courts have examined factors
such as whether the alleged religion addresses fundamental life questions,
is comprehensive, and has a formal organizational structure.121
Even if a court finds that beliefs are religious, the court may still ask
whether a claimant sincerely holds the beliefs. As the Supreme Court
stated in United States v Seeger,122 “while the ‘truth’ of a belief is not open
to question, there remains the significant question whether it is ‘truly held.’
This is the threshold question of sincerity which must be resolved in every
case.”123 In accordance with these principles, the Supreme Court held that
it would be improper for a jury to determine whether Guy Ballard, “alias
Saint Germain, Jesus, George Washington, and Dofre Ray King,” had
indeed been designated as a divine messenger.124 Still, the court was free to
ask whether the defendants, who collected $3 million from their followers
based on these claims, sincerely held their beliefs.125
In sum, RFRA and RLUIPA adopted the First Amendment’s definition
of religious exercise, and the First Amendment requires sincere beliefs. As
a result, RFRA and RLUIPA plaintiffs must have sincere beliefs.126
b. Courts generally recognize the issue as sincerity in analogous cases.
My analysis so far suggests that the relevant question in prisoner
accommodation cases is whether the prisoner’s beliefs are sincere. A series
42 USC § 2000bb-2(4).
Africa, 662 F2d at 1030 (explaining that if either of the two factors is not met, the
court applying the test need not go on to examine whether the state interest outweighs
the First Amendment claim).
120 Yoder, 406 US at 215 (stating that the concept of ordered liberty means that each
person may not develop his own standard to answer this question).
121 See, for example, Africa, 662 F2d at 1032 (explaining various factors the Supreme
Court has considered in different cases); US v Seeger, 380 US 163, 176 (1965)
(recognizing religions that are “based upon a power or being, or upon a faith, to which
all else is subordinate or upon which all else is ultimately dependent”); Welsh v US,
398 US 333, 343 (1970), citing Seeger, 380 US at 186 (stating that “religious” beliefs
must rise above the level of a “merely personal moral code”).
122 380 US 163 (1965)
123 Id at 185 (explaining that this is a question of fact, not of law).
124 See United States v Ballard, 322 US 78, 79 (1944) (explaining the scheme at issue
in the case: to defraud through the mails by making false representations to solicit
membership to the “I Am” movement).
125 See id at 84, 89–90 (holding that the jury had ample reason to determine that the
defendants’ beliefs were fraudulent).
126 See Cutter, 544 US at725 n 13 (“Although RLUIPA bars inquiry into whether a
particular belief or practice is ‘central’ to a prisoner’s religion . . . the Act does not
preclude inquiry into the sincerity of a prisoner’s professed religiosity.”).

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of Free Exercise cases strengthen this conclusion. In these cases, courts
have recognized that violations of beliefs—whether before or after the
occurrence of alleged burdens—is an indication of insincerity, not a factor
that influences the burden inquiry.
In Reed v Faulkner,127 the Seventh Circuit examined a prisoner’s Free
Exercise claim. The prisoner had previously consumed meat and shaved his
beard, contrary to his religious beliefs. The court held that the plaintiff’s
backsliding was relevant to the question of sincerity—though not
conclusive.128 In Shaheed-Muhammad v Dipaolo,129 the prisoner ate meat
before requesting a vegetarian diet. The federal district court concluded
that past violations were relevant to the question of sincerity, not the
question of burden.130 Similarly, the Superior Court of New Jersey held
that a worker’s previous Sunday labors, along with his willingness to work
on Sunday after he was fired, influenced the sincerity analysis.131
In light of these cases, it is unfortunate that Lovelace and Daly framed
the issue as one of burden, and not of sincerity—especially since pre-Smith
law seemingly resolves the issue of burden. The Supreme Court itself has
stated that “[RLUIPA] does not preclude inquiry into the sincerity of a
prisoner’s professed religiosity.”132 In fact, sincerity of beliefs is the
“threshold inquiry of any religious accommodation claim.”133 And even
under O’Lone’s penological interest test, the Supreme Court noted that
prisoners must have sincere beliefs.134 Why, then, have courts seemingly
skipped over this threshold question when analyzing backsliding prisoners’
RFRA and RLUIPA claims?
One possible explanation is that courts are relying on unexpressed tests
for sincerity. The Lovelace court mentioned in a footnote, “There is no
dispute that Lovelace sincerely holds his religious beliefs.”135 The court may
have assumed that any prisoner who claims to be religious is likely to be
842 F2d 960 (7th Cir 1988).
See id at 963 (noting that this evidence is especially relevant in a prison setting
where inmates may adopt new religions merely to harass prison staff with his
129 393 F Supp 2d 80 (D MA 2007).
130 Id at 90–91 (suggesting the proof offered to show the plaintiff’s insincerity instead
demonstrated his evolving religious beliefs).
131 See Sepulveda v Borne Holding, 2010 WL 5345127, *4–5 (NJ Super 2010) (reversing
a summary judgment granted to the worker’s employers by the lower court).
132 Cutter, 544 US at 725 n 13 (2005) (explaining that prison officials can question
whether a prisoner’s religious beliefs are “authentic”).
133 Lovelace, 472 F3d at 207 (Wilkinson dissenting), citing Seeger, 380 US at 185
(“[W]hile the ‘truth’ of a belief is not open to question, there remains the significant
question whether it is ‘truly held.’ This is the threshold question of sincerity which
must be resolved in every case.”).
134 See O’Lone, 482 US at 359 (“The Court in this case acknowledges that ‘respondents’
sincerely held religious beliefs compe[l] attendance at Jumu’ah.’”).
135 Lovelace, 472 F3d at 187 n 2 (explaining that, in considering the sincerity of a
prisoner’s religious beliefs, courts must not consider how central a particular practice
is to his overall religiosity).

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sincere, so past violations are irrelevant. Or perhaps the government’s
lawyer simply failed to recognize that backsliding can be evidence of
insincerity. On the other hand, Daly and Brown-El may have assumed that
prior religious violations are conclusive evidence of insincerity. Neither
court expressly found insincerity, but at least the Seventh Circuit seemed
skeptical that Daly’s beliefs were sincere.136
The assumption that past violations are conclusive evidence of
insincerity seemingly motivated Judge Wilkinson’s Lovelace dissent.137 He
claimed that the policy of removing one-time violators was valid “because it
is keyed to what the Supreme Court has told us a policy may rightly be
keyed to: the sincerity of a religious belief, rather than its truth.”138 He
later stated, “The policy was designed to accommodate only sincere
observers by the most reliable indicator possible: the would-be observers’
own religious practice.”139
It is troubling that courts might be relying on unexpressed sincerity
tests. Both possible approaches are problematic because neither
backsliding nor statements of belief are perfect proxies for sincerity. The
Seventh Circuit recognized this when holding that past violations are
evidence of insincerity, though not conclusive.140 But there is a deeper
problem with these possible unstated assumptions: they hide the courts’
true standards. If sincerity is the determinative issue in RFRA and
RLUIPA cases, courts should address the issue openly—not through
implicit and imperfect proxies.
Another possible explanation for the misguided focus on burden is that
no standardized sincerity test has emerged in RFRA and RLUIPA cases.
Courts may therefore be more comfortable trying to fit the question of
accommodation into the burden framework. As noted above, this oblique
attempt is improper under the stated purpose and text of RFRA and

Daly, 2009 WL 773880, *1 (noting that “Daly was suspended three times from the
program because he was observed purchasing and eating non-kosher food and trading
his kosher tray for a regular non-kosher tray.”).
137 See Lovelace, 472 F3d at 207 (Wilkinson dissenting) (“The Keen Mountain policy
accommodates Ramadan observance only for those inmates who actually observe the
Ramadan fast. Such a sincerity requirement is in no way a substantial burden on
religious exercise.”).
138 Id at 205 (arguing additionally that the prison’s policy was not what caused
Lovelace’s alleged injury).
139 Id at 208 (noting that the prison needed this indicator or else it would be forced to
serve special Ramadan meals to any prisoner who demanded it, regardless of his
religious beliefs).
140 Reed, 842 F2d at 963 (stating that merely because a religious adherent does not
comply with every tenet of the religion does not necessarily mean he is insincere in his

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3. Courts have developed a practical test for determining the sincerity
of conscientious objectors.
This section discusses the advantages and disadvantages of testing
religious beliefs for sincerity. I identify various provisions of the US Code
that require sincerity testing. Only one provision has been significantly
litigated: the statute exempting conscientious objectors from military
service. I discuss factors that courts and military review boards have
examined when determining sincerity.
a. Sincerity testing generally. Sincerity testing became important after
cases such as Sherbert allowed religious believers to receive exemptions
from general laws.141 Religion-based exemptions create incentives for
people to feign religiosity. Courts typically deal with these incentives by
reading sincerity requirements into federal statutes granting religious
exemptions. For example, unlike most applicants for citizenship, religious
applicants need not pledge a willingness to bear arms in defense of the
United States, but their beliefs must be sincere.142 Certain religious
believers may opt out of Social Security taxes.143 Members of Indian tribes
may hunt bald eagles for “religious purposes.”144 Religious ministers are
not subject to fines under the Equal Employment Opportunity Act.145
Despite widespread judicial approval, sincerity testing is difficult for
several reasons. A factfinder’s personal religious beliefs may affect her
perceptions of sincerity. For example, Christians may doubt the sincerity of
Muslims’ belief in Ramadan. Justice Robert Jackson voiced this concern
soon after courts began sincerity testing: “[Religious] experiences, like some
See Sherbert, 374 US at 409–10 (explaining why the plaintiff, a Seventh-Day
Adventist who refused to take a job that required her to work on Saturdays (the
Sabbath Day for her faith), qualified for unemployment benefits, despite the fact that
the Employment Security Commission found her unable to receive unemployment
benefits because she failed to accept available work without good cause [a precondition to receiving unemployment benefits]). See also William P. Marshall, Solving
the Free Exercise Dilemma: Free Exercise as Expression, 67 Minn L Rev 545, 554 n 58
(1983) (noting that the sincerity test is often used in cases in which a free exercise
claim could be abused by fraudulent claims).
142 See In re Weizman, 426 F2d 439, 455 (8th Cir 1970) (considering the claim of a
woman who refused to call herself “religious” because she did not adhere to any
organized religion), citing 8 USC § 1448 (stipulating that those applying for American
citizenship must take an oath pledging their support for the United States and the
143 See 26 USC § 1402(e)(1) (stating that for the benefit to be granted, evidence of the
individual’s religious beliefs must be established). See also 26 USC § 170 (describing
tax credits for charitable contributions).
144 See 16 USC § 668A (setting out the rare instances in which the Secretary of the
Interior may permit bald eagle hunting).
145 See 42 USC §§ 2000e-1 to -2 (explaining the inapplicability of EEOC fines for
religious employers). See, for example, Hernandez v Catholic Bishop Of Chicago, 320
F3d 698, 703–04 (7th Cir 2003) (addressing the “ministerial exception,” providing that
courts do not involve themselves in employment disputes regarding hiring of

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tones and colors, have existence for one, but none at all for another. They
cannot be verified to the minds of those whose field of consciousness does
not include religious insight.”146
Another difficulty is that the relationship between sincerity and belief is
conceptually unclear. As Judge John Noonan pointed out, “Faith is faith
because it cannot be demonstrated. A degree of doubt is therefore always
possible.”147 How certain in convictions must one be to pass a sincerity test?
Judge Noonan expressed concern that a priest who had lost his faith could
be guilty of fraud for holding Mass.148 The Supreme Court alleviated some
of these concerns in Thomas. It held that Indiana had violated Eddie
Thomas’s Free Exercise rights, even though Thomas “was ‘struggling’ with
his beliefs.”149 Sincerity does not require certainty.
Finally, religious sincerity is difficult to prove. Prisoners may know if
their beliefs are sincere, but prison officials and courts cannot. In cases of
unverifiable, asymmetric information, factfinders must look to observable
evidence that tends to support the information. Courts generally examine
objective evidence—such as behavior or statements—to prove or disprove
the existence of subjective beliefs.
Despite the potential drawbacks of sincerity testing, certain government
programs give benefits only to religious adherents. As the Supreme Court
has recognized, screening is necessary in these situations—otherwise, the
risk of fraud may be high.150 Most sincerity tests fail to grapple with the
shortcomings outlined above. Also, courts generally do not have welldefined tests for religious sincerity.151 Courts are often unclear about which
party bears the burden of proof and what evidence is permissible. One
notable exception is § 6(j) of the Universal Military Training and Service

Ballard, 322 US at 93 (Jackson dissenting) (discussing the difficulties juries face in
separating real religious beliefs from untrue ones).
147 John T. Noonan Jr, How Sincere Do You Have to Be to Be Religious?, 1988 U Ill L
Rev 713, 718 (articulating the difference between a political belief, in which one can be
scientifically certain of something, and a religious belief, in which one recognizes that
he will always be in the darkness about God).
148 See id at 719 (questioning whether scrutiny of the clergy and their beliefs should be
open to the government). See also Michael W. McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv L Rev 1409, 1420 & n 26 (1990)
(noting the objection that “determining the ‘sincerity’ of religious claimants is
dangerously intrusive”), citing William P. Marshall, The Case Against the
Constitutionally Compelled Free Exercise Exemption, 40 Case W Res L Rev 357 (1990).
149 Thomas, 450 US at 715 (explaining why the Indiana Supreme Court had decided
against Thomas).
150 See Ballard, 322 US at 84 (discussing the screening done by the jury).
151 See Bryan M. Likins, Determining the Appropriate Definition of Religion and
Obligation to Accommodate the Religious Employee Under Title VII: A Comparison of
Religious Discrimination Protection in the United States and the United Kingdom, 21
Ind Intl & Comp L Rev 111, 116 (2011) (noting that there is no “formal or informal
test” to determine the sincerity of one’s religious beliefs).

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b. Section 6(j) conscientious objector status. Section 6(j) allows
conscientious objectors to avoid induction into the armed forces. The
statute exempts anyone “who, by reason of religious training and belief, is
conscientiously opposed to participation in war in any form.”152 An objector
seeking exemption must make a short statement of religious beliefs and
cite relevant evidence. If the local draft board determines the objector’s
beliefs are sincere, the draftee is exempted from conscription.
In Witmer,153 a local draft board determined that Philip Witmer’s beliefs
were insincere and denied § 6(j) exemption. The board based its decision on
Witmer’s “inconsistent” claims: he initially sought exemption as a farmer,
then as an ordained minister, and finally as a conscientious objector. The
Supreme Court reaffirmed the standard for reviewing board decisions
established in an earlier case. Courts should overturn a board’s
determination of sincerity only if it has “no basis in fact.”154
In addition to affirming the “no basis in fact” standard, the Supreme
Court clarified which facts are relevant in making and reviewing sincerity
determinations. “In these cases, objective facts are relevant only insofar as
they help in determining the sincerity of the registrant in his claimed
belief, purely a subjective question. In conscientious objector cases,
therefore, any fact which casts doubt on the veracity of the registrant is
relevant.”155 Applying this standard to Witmer, the Court affirmed the
board’s determination. It based its decision on Witmer’s supposedly
inconsistent claims and his failure to produce prior evidence of religious
Lower courts have interpreted Witmer capaciously, examining a wide
range of evidence when reviewing military boards’ sincerity
determinations. Many of these decisions are highly fact-specific, so it is
often unclear how the holding in one case applies to others. Still, in the
many cases since Witmer, courts have repeatedly emphasized a few specific
factors. One important factor is the objector’s testimony before the review
board. In Witmer itself, the Court stated that review boards should consider
whether the registrant’s “demeanor appeared shifty or evasive or that his
appearance was one of unreliability.”156 If the review board concludes that
the registrant’s testimony is untrustworthy, it can deny an exemption.
Nevertheless, under the “no basis in fact” review standard, the government

50 USC App § 456(j) (stipulating that “religious training and belief” does not
include political, sociological, or philosophical views).
153 348 US 375.
154 Id at 381, citing Estep v United States, 327 US 114, 122 (1946) (noting that courts
should not substitute their judgment for that of the draft boards).
155 Id at 381–82 (emphasis added) (noting that any fact is evidence that the registrant
did not paint a true picture of his beliefs).
156 Id at 382 (noting that another consideration should be whether the registrant
stated his beliefs with apparent sincerity).

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generally must allege other objective facts to uphold the denial of
exemption on review.157
Courts have emphasized at least five other factors when determining
sincerity. Many of these factors are also relevant to prisoners. The first two
are from Witmer. The Witmer court based its conclusion on inconsistent
claims and a lack of pre-induction evidence of beliefs. Lower courts
continue to rely on these factors. For example, the First Circuit recently
considered the claim of a student who attended medical school on an Army
scholarship, then requested exemption shortly before she was scheduled to
report for active duty.158 The court upheld her exemption. It focused on
inconsistency—in particular, whether it was inconsistent for her to claim
that she was driven but also religiously uncertain when she first signed up
for the scholarship. The court concluded it wasn’t.159
Delay in asserting conscientious objector status is a third factor
emphasized in § 6(j) cases. In United States v Messinger,160 the Second
Circuit upheld a review board’s denial of exemption status. Messinger
claimed conscientious objector status two years after registering with the
Selective Service System, and only after various attempts to be exempted
as a student failed. The court held that delay in asserting beliefs was
evidence of insincerity.161 Courts are quick to point out, however, that delay
is not evidence of insincerity if the registrants’ beliefs changed.162
The fourth and fifth factors—religious leader testimony and strength of
statement—are relevant only in some cases. Review boards often hear
testimony from religious leaders.163 This factor is not decisive because
religious exemptions do not require believers to be members of particular

See, for example, United States v Abbott, 425 F2d 910, 913 (8th Cir 1970) (“A local
board may find that an applicant lacks sincerity in his beliefs because his demeanor
demonstrates a shiftiness or evasive attitude. . . . However, this cannot serve as a
basis-in-fact for an appeal board to reject a conscientious objector claim unless there
exists some disclosure of this finding of unreliability by the local board on the
applicant’s selective service record.
158 See Hanna v Secretary of the Army, 513 F3d 4, 6 (1st Cir 2008) (explaining that
Hanna had agreed to serve in the army for four years and remain in the reserves an
additional four years as a condition of the scholarship). Mary Hanna’s conscientious
objector status claim was analyzed under former 32 CFR § 75.5 (2007), but the
standard for determining conscientious objector status is the same.
159 See Hanna, 513 F3d at 12–14 (noting that the amount of time that passed between
Hanna accepting the scholarship and determining she did not want to join the army
was more than enough for her beliefs to crystallize).
160 413 F2d 927 (2d Cir 1969).
161 Id at 932 (pointing to other evidence that Messigner’s opposition to the war was
based more on political than religious sentiments).
162 See Hanna, 513 F3d at 12–13 (explaining that a conscientious objector’s beliefs may
develop early or later on).
163 See Lovallo v Resor, 443 F2d 1262, 1263–64 (2d Cir 1971) (discussing the
consideration the Army’s Conscientious Objection Review Board gave to the statement
of a chaplain).

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religions.164 But courts look favorably on religious leaders who are
personally acquainted with a registrant. The final factor is the strength of
the registrant’s statement. When requesting § 6(j) exemption, a registrant
must agree to the declaration: “[B]y reason of religious training and belief,
[I am] conscientiously opposed to participation in war in any form.”165 In
addition, a registrant must make a written statement that explains the
nature of her objections and the history of her beliefs. A thorough and
convincing statement can be evidence of sincerity.166
There is one major exception to the broad Witmer principle. The
government cannot prove insincerity by showing that an applicant’s
conduct fails to conform to the teachings of a professed religion.167 The
government cannot prove that a Mormon’s belief in the Bible is insincere by
demonstrating that she drinks alcohol. There are two reasons for this.
Courts are not comfortable deciding what a religion requires and whether a
person falls short of that required conduct.168 Also, courts often recognize
that people may have sincere beliefs in some principles, even though their
behavior doesn’t conform to all teachings of a particular sect.
Despite generally agreeing on relevant factors, circuits disagreed about
the level of evidence necessary to establish a prima facie case of sincerity.
Courts would need to resolve this disagreement if they apply § 6(j) test to
religious prisoners. On the one hand, the Second Circuit held that a
registrant’s signed statement of belief and testimony before the review
board are prima facie evidence of sincerity.169 The military draft board can
overcome this presumption by adducing evidence to refute the applicant’s
statement. The board might attempt to prove, for example, that the
See, for example, Seeger, 380 US at 185 (instructing that the relevant consideration
is whether religious beliefs are sincerely held, and not whether they are
comprehensible to others). Compare Frazee v Illinois Department of Employment
Security, 489 US 829, 832–33 (1989) (noting that previous Supreme Court cases
finding for a plaintiff asserting religious beliefs did not turn on the plaintiff being a
part of a specific religious group).
165 50 USC App § 456(j).
166 United States v Deere, 428 F2d 1119, 1121 (2d Cir 1970) (citing as evidence the
registrant’s own statement of his beliefs, even though it was not stated strongly or
particularly eloquently).
167 See United States v Rutherford, 437 F2d 182, 187 (8th Cir 1972) (“Just as a
registrant does not establish the sincerity of his claim merely by demonstrating that
he is a baptized member of an organized religion which dogmatically opposes
participation by its members in the military service, a registrant’s decision not to
conform chapter and verse to the modes of his chosen religion is not per se indicative of
168 See Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 721–22 (1976)
(“[R]eligious freedom encompasses the power (of religious bodies) to decide for
themselves, free from state interference, matters . . . of faith and doctrine.”). See also
Africa, 662 F2d at 1032 (“Judges are not oracles of theological verity, and the Founders
did not intend for them to be declarants of religious orthodoxy.”).
169 See Lovallo, 443 F2d at 1264 (explaining that when a registrant had presented the
signed statement, any finding against him must be predicated upon objective

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applicant had never expressed religious beliefs before applying for
conscientious objector status. The problem with this approach is that draft
boards generally do not have access to sufficient evidence to prove
insincerity. On the other hand, the Tenth Circuit held that an applicant’s
statement and testimony is not prima facie evidence of sincerity.170 An
applicant must provide additional evidence.
4. Courts should adapt the conscientious objector test to prisoners.
This section argues that courts should adapt the well-developed § 6(j)
sincerity test to prisoners in RFRA and RLUIPA cases. Courts should adopt
a rebuttable presumption in favor of sincerity if prisoners claim to have
sincere beliefs. I show that my approach would have a minimal but
important effect on prison administration.
a. Presumption of sincerity. The Supreme Court’s Witmer approach is a
practical method for excluding disingenuous applicants while
accommodating sincere believers. As argued above, the text and history of
RFRA and RLUIPA require a similar test. Rather than creating a new test
from whole cloth, courts should rely on the capacious sincerity test
developed in Witmer. Trial level courts should act as the military review
board, evaluating the truthfulness of a prisoner’s testimony and analyzing
objective evidence. Appellate courts should review trial court’s finding
under the “no basis in fact” standard.
If courts apply Witmer to RFRA and RLUIPA cases, they would need to
adapt the test to the idiosyncrasies of prison. In particular, courts would
need to resolve two issues: whether statements and testimony are prima
facie evidence of sincerity and which objective factors identified in § 6(j)
cases are relevant.
As noted above, the Second and Tenth Circuits disagreed whether
statements of belief and testimony are prima facie evidence of sincerity in
§ 6(j) cases.171 Courts would need to resolve a similar issue in RFRA and
RLUIPA cases. Prisons generally require inmates to make written
statements before joining religious accommodation programs, and inmates
bringing claims generally testify about their beliefs in court. Should
inmate’s statements and in-court testimony create a rebuttable
presumption of sincerity?
There are two reasons a presumption of sincerity is appropriate in the
prison context: one reason deals with incentives, the other with ease of
monitoring. Relative to military draftees, prisoners have a weaker
incentive to make false assertions of sincerity. Religious accommodations
often provide benefits solely to sincere adherents. It is unlikely that anyone
other than sincerely religious Muslims want to participate in the Ramadan
See Salamy v United States, 379 F2d 838, 842 (10th Cir 1967) (explaining this is
because a registrant’s earnestness may be called into question by the timing of his
signed statement).
171 See notes 169–170 and accompanying text.

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The Supreme Court recognized this point in Cutter v Wilkinson172: “[W]e
doubt that all accommodations would be perceived as ‘benefits.’ For
example, congressional hearings on RLUIPA revealed that one state
corrections system served as its kosher diet ‘a fruit, a vegetable, a granola
bar, and a liquid nutritional supplement—each and every meal.’”173 Kosher
food must be prepared in special kitchens that prisons often do not have
access to, so inmates desiring kosher meals often must eat frozen or dried
meals.174 Inmates may request transfers to facilities that prepare hot
kosher meals, but this option is not always available or convenient. In
Michigan, for example, “institutions [that prepare hot kosher food] are only
located in cold, isolated parts of the state, making it practically impossible
for family members or clergy to regularly travel 800 miles or more to
provide any visitation.”175
There are other reasons prisoners may refrain from making false
religious assertions. A congressional committee hearing revealed that at
least some Jewish prisoners “are afraid to even announce their religion, for
fear of the anti-Semitic attitude of wardens, guards and other inmates.”176
He further stated, “Non-Jews who inquires [sic] about converting to
Judaism are subjected to harassment and intimidation, too.”177 A gang of
Texas inmates killed a man who requested religious accommodations.178
Such behavior is clearly intolerable, but the point is important: inmates
have a weaker incentive than military draftees to feign sincerity. In most
cases, the downside of unwanted accommodations and possible
discrimination will outweigh any psychic benefit a prisoner may receive
from causing administrative headaches. Congress implicitly recognized
military draftees’ strong incentives to make false assertions by appointing
the FBI to assist military review boards in making sincerity

544 US 709 (2005).
Id at 721 n 10 (refuting the point that RLUIPA goes beyond the permissible
reduction of impediments to practicing religion).
174 See Clair A. Cripe and Michael G. Pearlman, Legal Aspects of Corrections
Management 140 (Jones ed 2003) (discussing the difficulties involved in setting up
kosher kitchens in prisons).
175 Protecting Religious Freedom After Boerne v. Flores, Part III, Hearing before the
Subcommittee on the Constitution of the Committee on the Judiciary, 105th Cong 2d,
Sess 78, 80 (1999) (statement of Isaac M. Jaroslawicz, Aleph Institute) (noting also
that the state of Michigan established a rule refusing to recognize work proscription
days such as the Sabbath).
176 Id at 89 (explaining that this is especially so in areas in which certain racial or
ethnic gangs are powerful in the prisons).
177 Id (recounting the harassment faced by Jewish prisoners wearing yarmulkes while
178 Id (recounting that the man was killed within fifteen minutes of arriving at a
maximum security prison, to which he was transferred after having resided at a
minimum security prison).

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determinations.179 Still, prisoners occasionally invent religions specifically
to receive accommodations. For example, members of the Church of the
New Song informed prison officials that their religion required a regular
diet of sherry and steak.180 But courts are generally quick to recognize
sham religions.
There is a second reason courts should adopt the Second Circuit’s
presumption of sincerity in RFRA and RLUIPA cases. Prison officials are in
a much better position than military draft boards to refute false assertions.
Prisons monitor inmates’ day-to-day activities. Prison guards can observe
whether allegedly devout Muslims pray, read the Koran, and abstain from
For instance, prison guards usually are present at religious services,
and officials electronically monitor inmates who attend. According to a
federal prison official, federal prisons have “increase[ed] supervision within
the federal system so that no inmate-led religious groups meet without 100
percent staff supervision.”181 They also have “install[ed] electronic
monitoring devices in chapels [and] increase[ed] training and scrutiny of
religious volunteers and contractors.”182 A majority of state prisons
similarly monitor religious services.183 Prisons have generally increased
efforts to monitor prisoners’ religious practices since 9/11.184
Prisons also monitor visitors; they know whether a supposedly religious
inmate has consulted with a religious leader. Alaskan prison guidelines
state that while “[p]risoners may privately consult with a religious
volunteer or faith representative in the visitation area or any other
appropriate location,” correctional officers “may view the meeting.”185
See Seeger, 380 US at 185 (explaining that the determination of whether a religious
belief is truly held is a question of fact for which review boards may require
180 Cripe and Pearlman, Legal Aspects at 140 (cited in note 174) (discussing various
religious dietary restrictions by which prisoners claim to be bound).
181 United States Commission on Civil Rights, Enforcing Religious Freedom in Prison
35 (2008), online at (visited Apr 26,
2011) (explaining what has been done in prisons to limit the threats of radicalization
among prisoners).
182 Id.
183 See id at 34 n 96 (noting that over half of the religious services that take place in
prisons are monitored with electronic devices). See also Barbara Esposito and Lee
Wood, Prison Slavery 157–58 (Joel 1982) (noting that Muslim prisoners in particular
see their religious freedoms restricted).
184 See United States Commission on Civil Rights, Enforcing Religious Freedom in
Prison at 37 (cited in note 181) (“At the local level, the L.A. County Jails notes that
since 9/11, it has maintained a close relationship with the Joint Terrorism Task Force
Radicalization Work Group.”).
185 State of Alaska Department of Corrections, Policies and Procedures: Religious
Services, Religious Program 2 (Alaska Department of Corrections Sept 1990), online at (visited Apr 26, 2011)
(stating that correctional officers may view religious interviews, but they may not
record the conversations).

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Moreover, prison chaplains are responsible for providing religious
materials to inmates.186 They know which prisoners have requested Bibles
or other religious items. Prison officials can refute false assertions of
sincerity by demonstrating that an allegedly devout inmate doesn’t attend
religious services or use religious items. Prison officials can more easily
access relevant evidence than military review boards.
b. Rebutting the presumption. I have so far argued that courts should
apply the Witmer approach, coupled with the Second Circuit’s presumption
of sincerity. In a typical RFRA or RLUIPA case, a backsliding prisoner
would need to show that removal prevented her from practicing her beliefs.
The court would presume that her beliefs are sincere, based on the inmate’s
initial written statement to participate in the program and in-court
In many cases, prison officials would not challenge the presumption of
sincerity. The court would then turn to the compelling interest inquiry. If
prison officials challenge the presumption, however, they would need to
adduce relevant “objective facts.” They would bear the burden of proving
that the prisoner’s beliefs are insincere. At this point, the prisoner also
could provide additional evidence to strengthen her case. Three facts
identified in § 6(j) cases would be particularly relevant to officials
attempting to rebut the presumption: inconsistent claims, no prior evidence
of beliefs, and delay.
Inconsistent claims would be strong evidence of insincerity. Factfinders
should be skeptical of a prisoner’s sincere desire to eat kosher food if he
eats kosher food one month, participates in Ramadan the next, then
switches back to kosher food. This prisoner would almost certainly lose.
Prior violations of accommodations would be weak evidence of
inconsistency, since even sincere believers are imperfectly religious. As the
Seventh Circuit noted, therefore, backsliding should be considered evidence
of insincerity, but not conclusive evidence.187
A lack of previous expressions of belief and delay would also be strong
evidence of insincerity. Factfinders should be skeptical of accommodation
requests if there is no pre-request evidence of beliefs. Factfinders should
similarly view delay in indicating beliefs as evidence that a prisoner merely
want some accommodation and sees feigning religion as a way to receive it.
Factfinders should be especially skeptical if an inmate doesn’t express
belief in Judaism or eating kosher food until after kosher food is made
available to other prisoners.

See United States Commission on Civil Rights, Enforcing Religious Freedom in
Prison at 111 (cited in note 181) (“Two federal prisons acknowledged continuing or
expanding their checks on incoming religious materials, in particular those available
in religious libraries.”); James A. Beckford and Sophie Gilliat, Religion in Prison:
Equal Rites in a Multi-Faith Society 184–87 (Cambridge 1998).
187 See Reed, 842 F2d at 963 (admonishing the district court judge for having attached
conclusive weight to the prisoner’s backsliding).

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If prison officials decide to challenge the presumption of sincerity,
inmates also would introduce additional evidence. Inmates would try to
strengthen their case by showing prior instances of religious expression
and other relevant objective facts, thereby hoping to prove that their beliefs
in the accommodated practices are sincere. As in § 6(j) cases, inmates could
call religious leaders as witnesses. Religious leader testimony would be
especially helpful if the leader personally worked with the inmate. But
courts should not infer insincerity from a lack of expert testimony. This
inference would create the impermissible requirement that a prisoner be
member of a particular religious group. Inmates would also be able to rely
on the strength of their statements in proving sincerity.
In sum, prison officials bear the burden of proving insincerity if they
challenge the presumption of sincerity. This approach requires factfinders
to weigh competing evidence and make conclusions. Some decisions will be
easy: a devout Orthodox Jew unknowingly eats non-kosher ice cream.
Other cases will be less so: a Christian converts to Judaism and eats nonkosher food on several occasions but otherwise appears devout. Factfinders
may occasionally face difficult inquiries, but Congress mandated this
analysis by adopting the First Amendment’s definition of religious exercise.
As the Supreme Court has stated in related First Amendment
jurisprudence, “In each case, the inquiry calls for line drawing; no fixed per
se rule can be framed.”188
Importantly, my approach significantly reduces the number of difficult
inquires by creating a rebuttable presumption—just as the Second Circuit
did in the conscription context. A presumption would considerably decrease
the number of cases where courts must weigh competing objective evidence.
c. Effect on prison management. How would prison officials implement
this approach? In general, prison officials would continue managing
religious accommodation programs as they have in the past. Officials would
still require inmates to make written statements affirming religious beliefs
before receiving accommodations. The primary difference is how prison
officials would respond to backsliding prisoners.
My approach requires prison officials to focus on the sincerity of the
prisoners’ beliefs. In response to backsliding, officials would perhaps
require prisoners to make additional statements reaffirming their beliefs. If
prisoners were unwilling, officials could safely conclude that their beliefs
are insincere. Prison officials may also require violating prisoners to meet
with the prison chaplain, who may be in a better position to determine if a
prisoner’s beliefs are sincere. Or officials may comprehensively evaluate
past evidence—such as surveillance data and written statements—to make
detailed sincerity determinations. Some prisons may simply allow

Lynch v Donnelly, 465 US 668, 678 (1984) (noting that the Establishment Clause is
not a “precise, detailed provision”).

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backsliding prisoners to continue participating, a result that may not be so
Prison officials who remove prisoners from accommodation programs
might fear that a court will disagree with their conclusions. But such fears
would be exaggerated. If the court finds a substantial burden on religious
exercise under RFRA or RLUIPA, prison officials can still avoid liability by
showing a compelling interest. For example, the district court ultimately
denied Lovelace’s RLUIPA claim on remand because it concluded that the
policy of removing one-time violators served a compelling interest, even
though the policy itself was a substantial burden.190 And even if prison
officials lose, most courts agree that prisoners are entitled only to
injunctive relief.191 Prison officials would simply need to return the prisoner
to the accommodation program. This approach would therefore require
prison officials to make minor but meaningful changes.
B. Benefits of a Sincerity-Centered Approach
There are a number of advantages to the sincerity approach. Foremost,
my approach is faithful to the text and express purpose of RFRA and
RLUIPA. My approach advances RFRA’s stated purpose of “restor[ing] the
compelling interest test as set forth in [Sherbert] and [Yoder].”192 Daly and
Lovelace pay lip service to this purpose—by adopting the pre-Smith
definition of substantial burden—but they surprisingly fail to consider
whether eliminating accommodations is a substantial burden under preSmith jurisprudence. The current approaches seem to recognize that a
prisoner’s beliefs must be sincere, but they fail to address the relationship
between backsliding and sincerity.
Moreover, my solution addresses the broader issues raised by the split
between the Seventh and Fourth Circuits. At least under the Seventh
Circuit’s approach, it is unclear if the same analysis applies when, for
example, an inmate misses a worship service but wants to attend
another.193 Under a sincerity-based approach, the important question is not
whether there is a burden, but whether there is a burden on religious
exercise. This requires the inmate to have sincere beliefs. Backsliding would
be evidence of insincerity, but prison officials would need to adduce
See Africa, 662 F2d at 1037 (“[I]t is not clear from the record why special
accommodations cannot be made in this instance for a prisoner who obviously cares
deeply about what food he eats.”).
190 See Lovelace v Lee, 2007 WL 2461750, *15 (WD Va 2007) (discussing the number of
prisoners that may attempt to participate in the Ramadan program if stringent rules
were not applied to it).
191 See, for example, Colvin, 605 F3d at 289 (“[T]his court has recently held that
monetary damages are not available under RLUIPA.”). There is a dispute whether
damages are allowed under RLUIPA. See generally Jennifer D. Larson, Comment,
RLUIPA, Distress, and Damages, 74 U Chi L Rev 1443 (2007).
192 42 USC § 2000bb(b)(1) (explaining the purpose of the statute).
193 The Fourth Circuit addressed this issue, see Lovelace, 472 F3d at 187–88, but the
other side of the split has not.

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additional evidence—such as inconsistent religious expressions—to
overcome the presumption. If the court concluded that an inmates’ beliefs
are sincere, and thus that there is a burden on religious exercise, the court
would turn to the question of substantial burden. Under this inquiry, the
outcome would be the same whether prison officials prevented an inmate
from attending a worship service after missing a service or after violating a
dietary accommodation. The burden would be substantial because the
inmate would be deprived of the opportunity to exercise deeply held
religious convictions.
My approach also overcomes the specific weaknesses of the two current
approaches. The Daly approach assumes that backsliding prisoners are not
pressured to violate their beliefs when officials remove accommodations.
Prisoners choose to violate in the first place. Such an approach fails to
recognize that religious laws are often difficult to obey. Major religions
recognize that people will fail to achieve religious perfection. Paul wrote,
“For all have sinned, and come short of the glory of God.”194 As Judge
Richard Posner pointed out, “[s]ome religions place unrealistic demands on
their adherents; others cater especially to the weak of will.”195
Another problem with Daly is that it prevents erring adherents from
overcoming past mistakes. A Jew who eats non-kosher food loses the
opportunity to change. This makes repentance—a central teaching of many
religions—impossible. Removing accommodations from sinners may be as
much of a burden on religious exercise as failing to accommodate in the
first place. For example, Daly was a practicing Jew for over eight years.196
Prison officials removed Daly from a kosher food program after he ate nonkosher food three times. But the food was confusingly labeled on one
occasion,197 and he denied eating non-kosher food on the other two
occasions.198 My approach would have required officials to evaluate the
sincerity of Daly’s beliefs, rather than suspending him and forcing him to
violate his stated beliefs. Under a sincerity-based approach, the Seventh
Circuit likely would have found prison officials liable: other than the three
alleged infractions, there was no evidence of insincerity in eight years.
A sincerity-based approach also addresses the concerns that Judge
Wilkinson expressed in his Lovelace dissent. Judge Wilkinson worried that
the majority ignored the realities of operating a prison.199 Prison officials
Romans 3:23 (King James version). See also Saint Augustine, Sermon CLXX (“This
is the very perfection of a man, to find out his own imperfections.”).
195 Reed, 842 F2d at 963 (adding that it would be bizarre for prisons to attempt to
impose strict religious orthodoxy on its religious prisoners).
196 See Daly v Davis, 2008 WL 879048, *1 (SD Ill).
197 Id (explaining why Daly objected to being removed from the kosher-food program
after having eaten non-kosher ice cream).
198 Daly, 2009 WL 773880, *2 (noting an issue of fact on whether the prison guards
who testified that they had seen Daly eat non-kosher food had testified truthfully).
199 Id at 204 (Wilkinson dissenting) (“The only certainty that the majority guarantees
is litigation over matters large and small, with federal courts thrust into a role they
have sought assiduously to avoid—that of micromanaging state prisons.”).

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have an interest in removing non-believers from accommodation programs,
since many religious accommodations require extra resources. Prison
officials must increase the number of nighttime guards and cooks to
facilitate the Ramadan fast. Also, the Lovelace majority’s deferential
approach makes it more difficult to discipline deceitful and unruly
As Professor William Marshall noted, “The sincerity test has been used
most often in cases in which the free exercise clause could easily have been
abused by fraudulent claims.”200 There is a risk that insincere prisoners
will attempt to receive accommodations, although the risk is lower here
than the military draft context. My approach recognizes prison officials’
managerial interest in removing false claimants—and thus responds to
Judge Wilkinson’s challenge—by allowing officials to screen out false
claimants. And it does so while remaining faithful to the text and stated
purpose of RFRA and RLUIPA.
C. Applying the Presumption-of-Sincerity Test
I now return to the story of Saul and Ananias from the Introduction.
Both Saul and Ananias joined a Protestant denomination while in a state
prison. Saul ate meat once during an annual fast. He regretted his
transgression and consulted with his religious leader. Ananias attended
one religious service since joining, but he didn’t otherwise change his
behavior. He didn’t observe the fast. Both Saul and Ananias were removed
from the fasting program and could not attend worship services for one
month. Do either of them have claims under RLUIPA?
Under the Daly approach, neither has a valid claim. Both Saul and
Ananias removed themselves from the religious accommodation programs
by violating the fast. Their failure to observe the fast means removal is not
a substantial burden. Under the Lovelace approach, both prisoners likely
have RLUIPA claims. The fasting program imposes a substantial burden
because both prisoners indicated a desire to participate, but the program
removes one-time violators. In effect, their claim that they are religious
would be conclusive evidence that the policy imposes a substantial burden.
The ultimate success of their RLUIPA claims would depend on whether the
court found that the government had a compelling interest.
My solution would produce a more sensible outcome. Instead of jumping
to the substantial burden inquiry, the court would first ask whether the
removal policy burdens the prisoners’ religious exercise. The critical
inquiry would be whether Saul’s and Ananias’s beliefs are sincere. Under
the modified Witmer approach, the court would find that Saul’s and
Ananias’s pre-participation statements and in-court testimony are prima
facie evidence of sincerity. Prison officials could then attempt to rebut the
presumption of sincerity by proving any relevant objective facts that cast
Marshall, 67 Minn L Rev at 554 n 58 (cited in note 141) (noting that the need for
the sincerity test became pronounced after Sherbert).

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the prisoners’ claims into doubt—except nonconformance to a specific
religion’s teachings.
It is likely the factfinder would conclude that Ananias’s beliefs are
insincere. Prisons officials would overcome the presumption of sincerity by
demonstrating that, other than recently joining the denomination, Ananias
had not expressed religious convictions. Prison officials would know that
Ananias didn’t own a Bible and that he had not attended worship services
regularly—enabling the factfinder to conclude that Ananias’s beliefs in
attending worship services are insincere. Ananias’s statement of belief
wasn’t convincing, and he probably would not be able to call a familiar
religious leader as a witness to confirm his belief in fasting.
On the other hand, it is likely the factfinder would conclude that Saul’s
beliefs are sincere. He read the Bible daily and regularly attended worship
services. Also, he was nearly perfect in his observance of the fast. He
expressed remorse to a religious leader when he failed to keep the fast.
Prison officials would likely point to his recent conversion and his one-time
decision to eat prime rib as evidence of insincerity, but it is unlikely the
factfinder would decide this is sufficient evidence to overturn the
presumption of sincerity.
After concluding that removal was a burden on Saul’s religious exercise,
the court would ask whether the burden is substantial. Pre-Smith case law
indicates that the burden is substantial because removal prevented
Ananias from engaging in religiously motivated conduct. The burden would
then shift entirely to the prison officials to show that removal served a
“compelling governmental interest; and [was] the least restrictive means of
furthering that . . . interest.”201
Prisoners forfeit many freedoms, but they “do not lose their right to
practice their religion when the prison gate closes behind them.”202 Do they
lose the right to practice their religion when they violate religious
accommodations? Courts have answered this question two different ways,
both sides debating whether removing accommodations from backsliding
prisoners is a substantial burden.
In rushing to determine whether the burden is substantial, both
approaches have missed the critical prior question: is there even a burden
on religious exercise? Answering this question requires courts to know if
prisoners hold sincere beliefs. Once the court knows that a backsliding
prisoner’s beliefs are sincere, it becomes clear that removal is a substantial
42 USC § 2000cc-1(a)(1)–(2).
Moskowitz v Wilkinson, 432 F Supp 947, 948 (D Conn 1977), citing Cruz v Beto, 405
US 319, 322 (1972) (“[R]easonable opportunities must be afforded to all prisoners to
exercise the religious freedom guaranteed by the First and Fourteenth Amendments
without fear of penalty.”).

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One possible explanation for this misguided focus on burden is that no
standardized sincerity test has emerged in RFRA and RLUIPA cases.
Courts may therefore be more comfortable trying to fit the accommodation
question into the burden framework, but the fit is awkward. I attempt to
remedy this problem by adapting the conscientious objector sincerity test to
the prison context. My proposal leads to a sensible outcome that allows
sincere prisoners to practice their religion but does not force prison officials
to accommodate disingenuous prisoners.

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