Adkins v. Kaspar

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JANUARY 7, 2005
December 8, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40028
DONALD M. ADKINS,
Plaintiff-Appellant,
versus
DON KASPAR, Chaplaincy Department; ROY A. GARCIA, Warden, Coffield
Unit; MICHAEL W. SIZEMORE, Assistant Warden, Coffield Unit; KENNETH
M. REYNOLDS, Chaplain, Coffield Unit; LARRY HART, Assistant
Chaplain, Coffield Unit; KEVIN MOORE, Senior Warden, Coffield Unit;
LEONARD SANCHEZ, Senior Chaplain, Coffield Unit,
Defendants-Appellees,
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Donald M. Adkins, a Texas state prisoner
incarcerated at all relevant times in the Coffield Unit
(“Coffield”) and proceeding pro se, filed suit in district court
alleging violation of his First and Fourteenth amendment rights, as
well as violation of the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”).1 Made defendants were Don Kaspar of the
Chaplaincy Department of the Texas Department of Criminal Justice
(“TDCJ”) and the following Coffield personnel: Roy A. Garcia,
Michael Sizemore, Kenneth Reynolds, Larry Hart, Kevin Moore, and
Leonard Sanchez (collectively, “defendants”). Following a Flowers2
hearing, the magistrate judge made findings of fact and conclusions
of law, and recommended dismissing Adkins’s action with prejudice.
The district court adopted the magistrate judge’s recommendation
and dismissed the suit. Adkins advances four claims on appeal:
(1) The district court erred in concluding that there was no
violation of his First Amendment right to free exercise of his
religion; (2) the district court erred in concluding that he
suffered no Equal Protection violation; (3) defendants’ actions
violated the RLUIPA’s prohibition of substantially burdening
religious exercise without specifying a compelling governmental
interest and a narrowly tailored solution; and (4) the magistrate
judge’s denial of Adkins’s witness subpoena requests was an abuse
of discretion. We affirm.
I. FACTS AND PROCEEDINGS
Adkins is a member of the Yahweh Evangelical Assembly (“YEA”).
The gravamen of his complaint is that he has not been permitted to
1
42 U.S.C. § 2000cc et seq.
2
Flowers v. Phelps, 956 F.2d 488 (5th Cir.), vacated and
superceded in part on denial of reh’g, 964 F.2d 400 (5th Cir.
1992).
2
observe particular days of rest and worship (each Saturday for the
Sabbath and a number of specific holy days), which is a requirement
of his faith. The case was referred to a magistrate judge, who
conducted an evidentiary hearing consistent with Flowers. Adkins’s
witnesses at the Flowers hearing included (1) Jerry Healan, a YEA
elder who went to Coffield once a month to preside over observance
of the Sabbath, (2) David and Nancy McEnany, who work with YEA
inmates in the Oklahoma prison system and trained to be YEA
volunteers at Coffield, and (3) Adkins himself.3 Defendant
Sanchez, the Senior Chaplain at Coffield, was the only witness for
the defendants.
Healan testified that the YEA requires its adherents to meet
together on every Sabbath and to congregate and make particular
observations on specific holy days. He further testified that he
has been permitted to go to Coffield and hold a baptismal service
for Adkins and other inmates, and that, following volunteer
training, he has gone to Coffield once a month to oversee Sabbath
observances. Healan estimated that approximately 25 to 30 Coffield
inmates regularly attend these meetings. Healan stated that he is
unable to attend more often because of the distance he must travel
to and from Coffield, and the travel time’s effect on his other
religious and personal obligations. Healan also testified that he
3
Adkins also called Thomas Hobbs as a witness. As his
testimony is irrelevant to any issue in this case, we have not
included it in this recitation of facts.
3
and Adkins correspond regularly and that he sends religious
materials to Adkins in prison. Healan stated that Adkins has a
solid understanding of YEA beliefs, and has authored several
articles that were published in newsletters and on the Internet.
The McEnanys testified that they went through the Coffield
religious volunteer program so that they could attend and oversee
Sabbaths at Coffield. At the time of the Flowers hearing, however,
neither of them had been cleared by prison officials to lead
meetings on their own.
Adkins acknowledged he has been granted “lay-ins” for holy
days and the Sabbath, but testified that he and other YEA members
had been denied the right to assemble and hold services on their
own. He also acknowledged that he and other YEA members had been
allowed to attend tape sessions and listen to tapes sent by Healan,
but that they are only allowed to do this on Mondays. Adkins
averred that he was told that the tape sessions cannot be held on
Saturdays unless an accredited religious volunteer is present.
Sanchez testified in response that YEA members are allowed to
congregate on the Sabbath when Healan is present at Coffield, and
that if Healan were able to attend more frequently on Sabbaths and
holy days, arrangements would be made for the YEA members to
congregate, conditioned only on availability of space and time.
Sanchez confirmed that thus far the McEnanys had not been allowed
to lead YEA services at Coffield without the supervision of Healan
because of a concern that “some things that were going on” were
4
“inmate driven.” Sanchez added, however, that if the McEnanys
would attend several more sessions with Healan, they would be
accredited to lead YEA services on their own. Sanchez also
testified that there are some 3200 inmates at Coffield and
approximately 150 recognized faith groups in the prison system.
The magistrate judge concluded that the defendants had not
denied Adkins a reasonable opportunity to exercise his religion.
Applying the definition of “substantial burden” enunciated by the
Seventh Circuit in Mack v. O’Leary,4 the magistrate judge concluded
that the defendants had not burdened Adkins’s religious exercise in
violation of the RLUIPA. The magistrate judge recommended
dismissal of Adkins’s action; and, after considering the record,
the magistrate judge’s recommendations, and the objections raised
by Adkins, the district court dismissed the case.
II. ANALYSIS
A. STANDARD OF REVIEW
An evidentiary hearing consistent with Flowers v. Phelps5
“amounts to a bench trial replete with credibility determinations
4
80 F.3d 1175 (7th Cir. 1996).
5
956 F.2d 488 (5th Cir.), vacated and superseded in part on
denial of reh’g, 964 F.2d 400 (5th Cir. 1992).
5
and findings of fact.”6 A district court’s legal conclusions at a
bench trial are reviewed de novo and its findings of fact are
reviewed for clear error.7
B. FREE EXERCISE CLAIM
Adkins’s original complaint alleged that defendants non-
compliance with the TDCJ’s religious accommodation policy impinged
on the free exercise of his faith. Citing Turner v. Safley,8
Adkins argues on appeal that defendants’ violations of the TDCJ
policy are not the basis of his First Amendment claim, just
evidence to be considered in evaluating it. Our review of the
district court’s factual findings regarding defendants’ compliance
with the TDCJ policy reveals no clear error. Adkins’s only viable
free exercise claim lies in his challenge to the constitutionality
of the TDCJ policy.
Turner established a four-factor “rational relationship” test
for analyzing the constitutionality of regulations that burden a
prisoner’s fundamental rights.9 Under Turner’s test, courts must
consider (1) whether a “valid, rational connection [exists] between
the prison regulation and the legitimate governmental interest put
forward to justify it,” (2) whether there exist “alternative means
6
McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995).
7
Westchester Fire Ins. Co. v. Haspel-Kansas Inv. P’ship, 342
F.3d 416, 418 (5th Cir. 2003).
8
482 U.S. 78 (1987).
9
Id.
6
of exercising the fundamental right that remain open to prison
inmates,” (3) what “impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally,” and (4) whether
there is an “absence of ready alternatives” to the regulation in
question.10
We recently upheld the constitutionality of the TDCJ’s
religious accommodation policy in Freeman v. Texas Department of
Criminal Justice.11 In that case inmates filed a class action suit
alleging that the TDCJ failed to provide them adequate opportunity
to practice their faith, in violation of the First and Fourteenth
Amendments. Applying Turner, we affirmed the district court’s
grant of those defendants’ motion for summary judgment to dismiss
the inmates’ case. Like the inmates in Freeman, Adkins seeks a
permanent injunction requiring the TDCJ to make provisions for
additional YEA services.
In Freeman, we held that the TDCJ’s religious accommodation
policy is rationally related to legitimate government objectives,
the first and “paramount inquiry under Turner.”12 Addressing the
second prong of the Turner test —— whether “alternative means” of
10
Id. at 89-90.
11
369 F.3d 854 (5th Cir. 2004).
12
Id. at 861. Specifically, that staff and space limitations,
as well as financial burdens, are valid penological interests. Id.
(citing Ganther v. Ingle, 75 F.3d 207, 211 (5th Cir. 1996).
7
exercising the group’s religious beliefs exist —— Adkins argues,
and the record reflects, that he and the other YEA members were not
permitted to assemble on every Sabbath day and on particular holy
days because no volunteer deemed acceptable by defendants was
available to supervise the meetings. In analyzing the availability
to inmates of “alternative means” of exercising their religion,
however, “[t]he pertinent question is not whether the inmates have
been denied specific religious accommodations, but whether, more
broadly, the prison affords the inmates opportunities to exercise
their faith.”13 The magistrate judge found, and the record
confirms, that (1) Adkins had access to religious materials; (2) he
and other YEA inmates were not required to work on the Sabbath; (3)
video and audio tapes were made available on Mondays to all YEA
members; and (4) YEA members were permitted to hold and attend live
services when Healan was able to attend. These supplemental
services, materials and other accommodations furnish Adkins and the
YEA members with “alternative means” of exercising their religion.14
Adkins contends that the tape sessions were no longer allowed
following the filing of this suit. Contrary to this, though, the
magistrate judge’s findings, which the district court adopted,
13
Id.
14
See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
(upholding a regulation that prohibited Muslim prisoners from
attending Friday afternoon services, the Court found the ability to
participate in other Muslim religious ceremonies satisfied Turner’s
“alternative means” test).
8
state that the tapes are still made available for viewing. The
current status of the tape sessions is not absolutely clear from
the record, but on appeal we look for clear error only, and we find
none here. In addition, Sanchez stated at the Flowers hearing that
if Healan comes to the prison more frequently, additional Sabbath
meetings will be accommodated.
We do find some source for concern in the prison’s rejection
of the McEnanys as volunteers. According to affidavits filed in
the district court, the McEnanys were certified by the official
volunteer training program and are currently allowed to conduct
Sabbath meetings in the Oklahoma prison system. Although Sanchez,
in his testimony at the hearing, expressed concern that some
occurrences involving the McEnanys were “inmate driven,” he did
indicate that if the McEnanys attend several sessions at which
Healan is present so that they “can get their feet on the ground,”
they will be allowed to conduct YEA services on their own.
Third, we must consider the impact of granting Adkins
injunctive relief on “guards and other inmates, and on the
allocation of prison resources generally.” The 20 to 25 active
members of YEA constitute less than one percent of the large inmate
population at Coffield. Requiring the defendants to accommodate
every religious holiday and requirement of the YEA, regardless of
the availability of volunteers, space, or time, could “spawn a
cottage industry of litigation and could have a negative impact on
9
prison staff, inmates and prison resources.”15 Moreover, if Adkins
were accommodated and other similarly situated small religious
groups were not, the YEA could appear to be favored over the
others, a perception that could have a negative effect on prison
morale and discipline.16
Finally, “no obvious, easy alternatives would accommodate
both” Adkins and the TDCJ’s administrative needs.17 Adkins’s
request that defendants allow the YEA members to assemble on each
of their holy days and every Sabbath, regardless of the
availability of qualified volunteers and adequate space and
security, is not an “alternative that fully accommodates the
prisoner’s rights at de minimis cost to valid penological
interests.”18 Chaplain Sanchez testified that the YEA would be
allowed to meet on every Sabbath that Healan or another qualified
volunteer is present, as well as on YEA holy days, if space and
time are available. In light of the foregoing facts and
considerations, we affirm the district court’s dismissal of
Adkins’s First Amendment free-exercise claim.
15
Freeman, 369 F.3d at 862; see also Turner, 482 U.S. at 90
(“When accommodation of an asserted right will have a significant
‘ripple effect’ on fellow inmates or on prison staff, courts should
be particularly deferential to the informed discretion of
corrections officials.”).
16
See Kahey v. Jones, 836 F.2d 948, 951 (5th Cir. 1988).
17
Freeman, 369 F.3d at 862.
18
Turner, 482 U.S. at 91.
10
C. EQUAL PROTECTION CLAIM
Although it is not entirely clear from Adkins’s complaint or
the briefs, he appears to contend that defendants violated his
Fourteenth Amendment equal protection guarantee by favoring
adherents of other religions over him and the members of the YEA.
To succeed on his Equal Protection claim, Adkins “must prove
purposeful discrimination resulting in a discriminatory effect
among persons similarly situated.”19 “However, the Fourteenth
Amendment does not demand ‘that every religious sect or group
within a prison —— however few in numbers —— must have identical
facilities or personnel.’”20 We have held that Turner applies to
equal protection claims.21
Adkins has failed to provide anything more than bald,
unsupported, conclusional allegations that defendants purposefully
discriminated against him. To hold meetings at Coffield, every
religious group (with the exception of the Muslims whose situation
is governed by a separate court order) is required to have outside
volunteers present. The one concern raised by the evidence is that
volunteers for the YEA are not being permitted to lead meetings
following training but that volunteers for other similarly situated
19
Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992)
(citing McCleskey v. Kemp, 481 U.S. 279 (1987).
20
Freeman, 369 F.3d at 862-63 (quoting Cruz v. Beto, 405 U.S.
319, 322 n.2 (1972)).
21
See id. at 863.
11
religious groups are allowed to participate. Sanchez expressed a
rationale for the delay in allowing the McEnanys to lead meetings
on their own, however, and stated that they would be allowed to
lead services alone after attending several meetings with Healan.
We affirm the dismissal of Adkins’s equal protection claim.
D. RLUIPA CLAIM
Adkins insists that his inability to assemble on every Sabbath
and every YEA holy day “substantially burdens” the practice of his
religion, in violation of the RLUIPA. The RLUIPA was adopted by
Congress in response to the Supreme Court’s decisions in Employment
Division, Department of Human Resources v. Smith22 and City of
Boerne v. Flores.23 Prior to Smith, the Supreme Court had employed
a “compelling state interest” standard for testing the
constitutional validity of laws of general applicability that
affect religious practices.24 Government actions that substantially
burdened a religious practice had to be justified by a compelling
governmental interest.25 In Smith, the Court changed course when
22
494 U.S. 872 (1990).
23
521 U.S. 507 (1997).
24
See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v.
Yoder, 406 U.S. 205 (1972).
25
Sherbert, 374 U.S. at 402-403. Although Sherbert
established the general test for free exercise challenges, the
Court distinguished the prison context in Turner and O’Lone v.
Estate of Shabazz, 482 U.S. 342 (1987). Turner and O’Lone
recognized that, although inmates retain their free exercise
rights, incarceration necessarily limits them. See O’Lone, 482
U.S. at 348. The burden on the government to defend its actions is
12
it ruled that laws of general applicability that only incidentally
burden religious conduct do not offend the First Amendment.26
Congress sought to reinstate the pre-Smith standard by enacting the
Religious Freedom Restoration Act (“RFRA”).27 In City of Boerne,
however, the Supreme Court invalidated the RFRA as it applied to
states and localities, holding that the statute exceeded Congress’s
remedial powers under Section 5 of the Fourteenth Amendment.28
Congress responded to City of Boerne by enacting the RLUIPA in
September 2000. The RLUIPA is largely a reprisal of the provisions
of the RFRA, but its scope is limited to laws and regulations that
govern (1) land use and (2) institutions such as prisons that
receive federal funds.29
As always, we begin our review with the language of the
statute.30 The relevant section of the RLUIPA states:
(a) General rule
substantially less demanding when the prima facie constitutional
claim has been made by a prisoner challenging prison policy,
compared to similar claims outside the prison context. See id. at
349.
26
See 494 U.S. at 884-85.
27
42 U.S.C. §§ 2000bb, et seq.
28
See 521 U.S. at 532-36.
29
See 42 U.S.C. § 2000cc et seq.
30
Coserv Ltd. Liability Corp. v. Southwestern Bell Telephone
Co., 350 F.3d 482, 486 (5th Cir. 2003).
13
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, unless the government
demonstrates that imposition of the burden on that
person--
(1) is in furtherance of a compelling governmental
interest; and
(2) is the least restrictive means of furthering that
compelling governmental interest.31
Initially, it falls to the plaintiff to demonstrate that the
government practice complained of imposes a “substantial burden” on
his religious exercise.32 This requires the court to answer two
questions: (1) Is the burdened activity “religious exercise,” and
if so (2) is the burden “substantial”?
The RLUIPA defines “religious exercise” to include “any
exercise of religion, whether or not compelled by, or central to,
31
42 U.S.C. § 2000cc-1 (emphasis added). The section only
applies when “the substantial burden is imposed in a program or
activity that receives Federal financial assistance” or “the
substantial burden affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several
States, or with Indian tribes.” Id. In his amended complaint,
Adkins alleged that the TDCJ accepts federal funds. As defendants
have not challenged this assertion, we proceed under the assumption
that the TDCJ does accept federal funds.
32
The plaintiff has the burden of persuasion on whether the
challenged government practice substantially burdens the
plaintiff’s exercise of religion. Once the plaintiff establishes
this, the government bears the burden of persuasion that
application of its substantially burdensome practice is in
furtherance of a compelling governmental interest and is the least
restrictive means of furthering that interest. See 42 U.S.C. §
2000cc-2; 146 Cong. Rec. S7776 (July 27, 2000).
14
a system of religious belief.”33 This broad definition evinces
Congress’s intent to expand the concept of religious exercise that
was used by courts in identifying “exercise of religion” in RFRA
cases.34 The activities alleged to be burdened in this case —— YEA
Sabbath and holy day gatherings —— easily qualify as “religious
exercise” under the RLUIPA’s generous definition, requiring that we
answer the second question, whether the government practice in
question places a “substantial burden” on Adkins’s religious
exercise.
What constitutes a “substantial burden” under the RLUIPA is a
question of first impression in this circuit.35 The RLUIPA does not
33
42 U.S.C. § 2000cc-5(5).
34
Under the RFRA, many courts required the religious exercise
burdened to be “central” to the religion. See, e.g., Weir v. Nix,
114 F.3d 817, 820 (8th Cir. 1997); Abdur-Rahman v. Mich. Dept. of
Corrections, 65 F.3d 489, 492 (6th Cir. 1995); Werner v. McCotter,
49 F.3d 1476, 1480 (10th Cir. 1995); Bryant v. Gomez, 46 F.3d 948,
949 (9th Cir. 1995). The RFRA was amended by the RLUIPA’s enacting
legislation to incorporate the same definition for “exercise of
religion” as “religious exercise” under the RLUIPA. 42 U.S.C. §
2000bb-2, as amended by Religious Land Use and Institutionalized
Persons Act of 2000, Pub. L. No. 106-274, § 7, 114 Stat. 803
(2000). Prior to amendment, the RFRA defined “exercise of
religion” as “the exercise of religion under the First Amendment to
the Constitution.”
35
In Diaz v. Collins, we considered whether a substantial
burden was placed on a prisoner’s Native American religious
exercise in violation of the RFRA. 114 F.3d 69 (5th Cir. 1997).
Without defining the term, we concluded that circumscribing the use
of a medicine bag and headband did not rise to the level of a
“substantial burden” but grooming regulations did work a
substantial hardship on the prisoner’s Native American religious
practice. Id. at 72-3. Although we did not define “substantial
burden,” in reaching our conclusions we cited to the Tenth Circuit
definition enunciated in Werner, 49 F.3d at 1480.
15
contain a definition of “substantial burden,” and the courts that
have assayed it are not in agreement. Despite the RLUIPA’s
eschewing the requirement of centrality in the definition of
religious exercise,36 the Eighth Circuit adopted the same definition
that it had employed in RFRA cases, requiring the burdensome
practice to affect a “central tenet” or fundamental aspect of the
religious belief.37 The Seventh Circuit, in contrast, abandoned
the definition of “substantial burden” that it had used in RFRA
cases, holding instead that, “in the context of RLUIPA’s broad
definition of religious exercise, a...regulation that imposes a
substantial burden on religious exercise is one that necessarily
bears direct, primary, and fundamental responsibility for rendering
religious exercise...effectively impracticable.”38 Neither did the
36
See text accompanying n. 33 supra.
37
See Murphy v. Missouri Dept. Of Corr., 372 F.3d 979, 988
(8th Cir.) cert. denied, 73 U.S.L.W. 3297 (U.S. Nov. 15, 2004) (No.
04-6293) (“To constitute a substantial burden, the government
policy or actions: must ‘significantly inhibit or constrain conduct
or expression that manifests some central tenet of a [person’s]
individual [religious] beliefs; must meaningfully curtail a
[person’s] ability to express adherence to his or her faith; or
must deny a [person] reasonable opportunities to engage in those
activities that are fundamental to a [person’s] religion.’”); see
also Henderson v. Kennedy, 265 F.3d 1072, 1074 (D.C. Cir. 2001)
(denying a petition for rehearing in a suit under the still valid
portion of the RFRA, the court stated that the amendments to the
definition of “religious exercise” did not alter the propriety of
inquiring into the importance of a religious practice when
assessing whether a substantial burden exists).
38
Civil Liberties for Urban Believers v. City of Chicago, 342
F.3d 752, 761 (7th Cir. 2003), cert. denied, 124 S. Ct. 2816 (2004)
(abandoning the definition in Mack v. O’Leary, 80 F.3d 1175 (7th
Cir. 1996).
16
Ninth Circuit retain the definition of “substantial burden” that it
had employed in RFRA cases, which required interference with a
central religious tenet or belief. Turning to Black’s Law
Dictionary and Merriam-Webster’s Collegiate Dictionary, the Ninth
Circuit defined a “substantial burden” as one that imposes “a
significantly great restriction or onus upon such exercise.”39 The
most recent appellate interpretation of the term under the RLUIPA
is that of the Eleventh Circuit, which declined to adopt the
Seventh Circuit’s definition, holding instead that a “substantial
burden” is one that results “from pressure that tends to force
adherents to forego religious precepts or from pressure that
mandates religious conduct.”40
The RLUIPA’s legislative history, although sparse, affords
some guidance: “[Substantial burden] as used in the Act should be
interpreted by reference to Supreme Court jurisprudence.”41 And,
indeed, on several occasions, the Court has articulated a
definition of “substantial burden.”
The plaintiff in Sherbert v. Verner was denied unemployment
compensation benefits following the termination of her employment
39
San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1034 (9th Cir. 2004) (not following the definition in Bryant
v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995)).
40
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1227 (11th Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3238
(U.S. Oct. 1, 2004) (No. 04-469).
41
146 Cong. Rec. S7776 (July 27, 2000).
17
for refusing to work on Saturday, her Sabbath, coupled with her
refusal to accept other employment because all identifiable job
openings would have required her to work on Saturdays.42 The Court
held that a burden had been placed on the plaintiff’s free exercise
of her religion because the “ruling forces her to choose between
following the precepts of her religion and forfeiting benefits, on
the one hand, and abandoning one of the precepts of her religion in
order to accept work, on the other hand.”43
Similarly, the plaintiff in Thomas v. Review Board of the
Indiana Employment Security Division was denied unemployment
compensation benefits after he was forced to quit his job following
transfer to his employer’s weapons production division; his faith
as a Jehovah’s Witness forbade him to engage directly in the
production of arms.44 The Court held that the denial of benefits
placed a substantial burden on the plaintiff’s practice of his
faith:
Where the state conditions receipt of an important
benefit upon conduct proscribed by a religious faith, or
where it denies such a benefit because of conduct
mandated by religious belief, thereby putting substantial
pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists.45
42
374 U.S. 398 (1963).
43
Id. at 1794.
44
450 U.S. 707 (1981).
45
Id. at 717-18.
18
In Lyng v. Northwest Indian Cemetery Protective Association,
the government wanted to build a road through an area of public
land that was used by several Native American tribes. The
plaintiff, a Native American organization, sought to block
construction of the road, arguing, among other things, that
construction of the road would substantially burden the practice of
their faith.46 The Court, in denying these plaintiffs’ First
Amendment claim, rejected any reading of Thomas or Sherbert that
implied that “incidental effects of government programs, which may
make it more difficult to practice certain religions but which have
no tendency to coerce individuals into acting contrary to their
religious beliefs, require government to bring forward a compelling
justification for its otherwise lawful actions.”47
Our consideration of the plain wording of the statute, its
legislative history, the decisions of other circuits, and the
Supreme Court’s pronouncements on the meaning of “substantial
burden” in other contexts leads us to hold that, for purposes of
applying the RLUIPA in this circuit, a government action or
regulation creates a “substantial burden” on a religious exercise
if it truly pressures the adherent to significantly modify his
religious behavior and significantly violates his religious
beliefs. And, in line with the foregoing teachings of the Supreme
46
485 U.S. 439 (1988).
47
Id. at 450-51.
19
Court, the effect of a government action or regulation is
significant when it either (1) influences the adherent to act in a
way that violates his religious beliefs, or (2) forces the adherent
to choose between, on the one hand, enjoying some generally
available, non-trivial benefit, and, on the other hand, following
his religious beliefs.48 On the opposite end of the spectrum,
however, a government action or regulation does not rise to the
level of a substantial burden on religious exercise if it merely
prevents the adherent from either enjoying some benefit that is not
otherwise generally available or acting in a way that is not
otherwise generally allowed.49 We emphasize that no test for the
presence of a “substantial burden” in the RLUIPA context may
require that the religious exercise that is claimed to be thus
burdened be central to the adherent’s religious belief system.
This is because, as noted above, the RLUIPA defines religious
exercise as “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.”50 Nevertheless, the
Supreme Court’s express disapproval of any test that would require
a court to divine the centrality of a religious belief51 does not
48
See Sherbert and Thomas.
49
See Lyng.
50
See 42 U.S.C. § 2000cc-5(5)(emphasis added).
51
See Lyng, 485 U.S. at 457-58 (criticizing the dissent’s
proposed test which would require a court to evaluate the
“centrality” of a religious belief); see also Smith, 494 U.S. at
886-87 (“It is no more appropriate for judges to determine the
20
relieve a complaining adherent of the burden of demonstrating the
honesty and accuracy of his contention that the religious practice
at issue is important to the free exercise of his religion.
In sum, we are satisfied that the position we adopt today is
faithful to both the text of the RLUIPA and Supreme Court
precedent. Declining to inquire into whether a practice is central
to an adherent’s religion avoids the greater harm, identified in
Lyng and in the text of the Smith opinion, of having courts presume
to determine the place of a particular belief in a religion. These
precedents instruct that, like determinations regarding the
importance of ideas in the free speech field, judges are ill-suited
to resolve issues of theology in myriad faiths. If refusing to
inquire into the centrality of a religious practice should lead to
undesirable results, Congress is the appropriate body to address
that problem,52 particularly in light of its own declaration in the
‘centrality’ of religious beliefs before applying a ‘compelling
interest’ test in the free exercise field, than it would be for
them to determine the ‘importance’ of ideas before applying the
‘compelling interest’ test in the free speech field.”)
52
Our entire discussion assumes that the RLUIPA is otherwise
constitutional; we have not been asked to rule on the
constitutionality of the statute. The question is currently the
cause of a circuit split. Compare Benning v. Georgia, No.
04-10979, 2004 WL 2749172 (11th Cir. Dec. 02, 2004) (holding that
the RLUIPA is within Congress's spending clause powers, and that it
does not violate the Establishment Clause); Madison v. Riter, 355
F.3d 310 (4th Cir. 2003) (finding the RLUIPA does not violate the
Establishment Clause); Charles v. Verhagen, 348 F.3d 601 (7th Cir.
2003) (holding that the RLUIPA is within Congress’s spending clause
powers, and that it does not violate the Establishment Clause);
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (same); with
Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted,
21
text of the RLUIPA that centrality is not an element of religious
exercise for purposes of this Act.
We recognize that our test requires a case-by-case, fact-
specific inquiry to determine whether the government action or
regulation in question imposes a substantial burden on an
adherent’s religious exercise; however, we perceive this kind of
inquiry to be unavoidable under the RLUIPA and the circumstances
that it addresses. This is why we make no effort to craft a
bright-line rule.
Turning to the instant case, the evidence shows that Adkins
was and is prevented from congregating with other YEA members on
many Sabbath and YEA holy days. This results, however, from a
dearth of qualified outside volunteers available to go to Coffield
on every one of those days, not from some rule or regulation that
directly prohibits such gatherings. With the exception of Muslims
who are subject to a special court order, every religious group at
Coffield is required to have a qualified outside volunteer present
on such occasions. Presently, Adkins and the other YEA members are
permitted to gather any time that Healan is available to go to
Coffield; and Sanchez testified at the Flowers hearing that Adkins
and the other YEA members would be allowed to observe every YEA
Sabbath and every YEA holy day on which a free world volunteer is
present.
73 U.S.L.W. 3229 (U.S. Oct. 12, 2004) (No. 03-9877) (holding the
RLUIPA an unconstitutional violation of the Establishment Clause).
22
The requirement of an outside volunteer —— which is a uniform
requirement for all religious assemblies at Coffield with the
exception of Muslims —— does not place a substantial burden on
Adkins’s religious exercise. We admit to lingering concern about
the prison authorities’ refusal to allow the McEnanys to serve as
volunteers so that Adkins and the other YEA members at Coffield
could gather on days that Healan is not present, which in turn
prevents YEA members from congregating on the same basis as other
similarly situated religious groups. Our concerns are alleviated,
however, by Sanchez’s promise that the McEnanys will be allowed to
serve as volunteers after they attend services with Healan a few
times to familiarize themselves with the process of conducting such
meetings. All things considered, we are convinced that the acts of
the defendants have not placed a substantial burden on Adkins’s
free exercise of his YEA religion, within the contemplation of the
RLUIPA.
E. Denial of Adkins’s Motion to Subpoena Witnesses
Adkins’s final claim is that the magistrate judge erred in
refusing to allow him to subpoena defendant Reynolds, Chaplain
Edwards, and inmates Bundage and Ingram. “A district court’s
refusal to issue a subpoena is reviewable only for abuse of
discretion.”53 Before we will hold that the district court abused
its discretion by refusing to issue a subpoena, the proponent of
53
Gibbs v. King, 779 F.2d 1040, 1047 (5th Cir. 1986).
23
the subpoena must show that relevant testimony was excluded, or
that a substantial need for a witness’s trial testimony existed.54
Much of the information that Adkins claims the witnesses would
testify to would be speculative or repetitive. Although it appears
from Ingram’s affidavit that he had some personal knowledge of the
use of the chapel, this was not made at all clear in Adkins’s
subpoena request, so the magistrate judge did not abuse his
discretion in refusing the subpoena request. We perceive no abuse
of discretion here.
III. CONCLUSION
For the foregoing reasons, the district court’s rulings and
its dismissal of Adkins’s claims, are, in all respects,
AFFIRMED.
54
See Cupit v. Jones, 835 F.2d 82, 86-87 (5th Cir. 1987).
24