Ben-Levi v. Brown

Cite as: 577 U. S. ____ (2016) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
ISRAEL BEN-LEVI, AKA DANNY L. LOREN v.
BETTY BROWN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 14–10186 Decided February 29, 2016
The petition for a writ of certiorari is denied.
JUSTICE ALITO, dissenting from the denial of certiorari.
Petitioner Israel Ben-Levi, a North Carolina inmate, filed
a pro se petition challenging a prison policy that prevented
him and other Jewish inmates from praying and studying
the Torah together. The North Carolina Department of
Public Safety (NCDPS) imposed stringent restrictions on
Jewish group meetings that it did not apply to other reli-
gious groups. Because Ben-Levi has provided ample evi-
dence that these restrictions substantially burdened his
religious exercise, and because respondent has not identi-
fied a legitimate penological interest in treating Jewish
inmates more strictly than inmates of other religions, I
would grant Ben-Levi’s petition for certiorari and summar-
ily reverse the judgment below.
I
Petitioner Ben-Levi is a practicing Jew in the custody of
NCDPS. Respondent Betty Brown is NCDPS’s Director of
Chaplaincy Services. Because this case arises in a sum-
mary judgment posture, I view the facts in the light most
favorable to Ben-Levi, the nonmoving party. See, e.g., City
and County of San Francisco v. Sheehan, 575 U. S. ___, ___
(2015) (slip op., at 1).
In 2012, while housed in NCDPS’s Hoke Correctional
Institute (Hoke), Ben-Levi requested permission to meet in
a quiet room to pray and study the Torah with two other
2 BEN-LEVI v. BROWN
ALITO, J., dissenting
Jewish prisoners. Doc. No. 1–1; Doc. No. 33, pp. 1–2. 1
After Hoke officials denied his request, Ben-Levi sent a
letter to respondent asking if she had “the authority to let
the superintendent [at Hoke] approve a quiet place . . . to
have a Jewish Bible Study.” Doc. No. 1–1, at 4. Ben-Levi
later clarified that he was seeking to meet with his fellow
Jewish believers for an hour per week. Doc. No. 29, p. 6.
Respondent denied Ben-Levi’s request in a July 10, 2012
letter. See Doc. No. 24–1. The letter asserted that a Jew-
ish study group requires a quorum of 10 adult Jews (also
referred to as a minyan). Ibid. Ben-Levi’s proposed group,
however, had only three members. Doc. No. 33, at 1–2.
Respondent further explained that the minyan requirement
“may be waived in a prison setting only when the service is
led by a Rabbi.” Doc. No. 24–1. But because “no orthodox
Rabbi” was available “to supervise a study group,” respond-
ent continued, “no formal authorization can be given even
though you say that requirements are relaxed for an ortho-
dox Jewish bible study.” Ibid. Respondent warned Ben-
Levi that his proposed study group was prohibited and
stated that “[n]o further action will be taken on this issue.”
Ibid.
Respondent based her denial of Ben-Levi’s request on
established NCDPS policy, which requires either a minyan
or the presence of a qualified leader (such as a rabbi) in
order for a Jewish study group to take place. Brief in Op-
position 11; see Doc. No. 42–2, pp. 5–7. NCDPS instituted
this policy after “Respondent Brown personally exchanged
emails” with a rabbi and “he advised her regarding the
‘requirements for Torah and Talmud study sessions.’ ” Brief
in Opposition 10 (citing Doc. No. 42–2, at 9). “Based on the
information provided by [the rabbi], Respondent Brown was
of the opinion at all relevant times that NCDPS’s require-
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1 Documents filed with the District Court are designated by their docket
entry number, denoted as “Doc. No. __.”
Cite as: 577 U. S. ____ (2016) 3
ALITO, J., dissenting
ment of a quorum, Rabbi, or other qualified community
volunteer to lead Jewish bible study was in conformity with
the ‘requirements, practices and tenets of Judaism.’ ” Brief
in Opposition 11 (citing Doc. No. 42–2, at 9).
Because NCDPS’s policy rests on its understanding of
Jewish doctrine, the policy does not apply to other religions.
In fact, NCDPS intentionally treats different religions
differently based on its perception of the importance of their
various tenets. Doc. No. 42–2, at 5. As explained by re-
spondent, “[s]ome faith practices are required of an adher-
ent, while others are not, such that different accommoda-
tions are made for dissimilar groups.” Ibid. Thus, although
other religious groups were allowed to meet without a
quorum or an outside volunteer, Jewish groups were not.
See Doc. No. 29, at 1; Doc. No. 32, p. 3; Doc. No. 49, p. 2;
Doc. No. 54, p. 2. 2
The hurdles imposed on Jewish group meetings are
heightened by the paucity of Jews at Hoke and in the sur-
rounding community. “[B]ecause the numbe[r] of declared
Judaism followers is small,” Doc. No. 42–2, at 10, Ben-Levi
could not assemble a quorum of 10 Jews. And because
respondent was unable to find a rabbi or other qualified
leader to serve the Jewish prisoners at Hoke, see 2014 WL
7239858, *3, n. 2 (EDNC, Dec. 18, 2014), Ben-Levi could not
take advantage of the exception to the minyan requirement.
As a result, Ben-Levi was completely deprived of the ability
to pray or study with other Jewish inmates. Doc. No. 32,
at 3.
After respondent denied the request for group Torah
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2 Respondent does not dispute this conclusion. See, e.g., Brief in Oppo-
sition 20 (“While Petitioner argues that other faith groups have been
allowed to participate in study groups, Petitioner has not presented any
evidence that members of his faith group or similar faith groups (i.e.,
where the tenets of the faith require a minyan or the presence of a
qualified teacher) were allowed to meet without a quorum or qualified
community volunteer”).
4 BEN-LEVI v. BROWN
ALITO, J., dissenting
study, Ben-Levi filed a pro se complaint under Rev. Stat.
§1979, 42 U. S. C. §1983, in the United States District
Court for the Eastern District of North Carolina. Ben-Levi
alleged that the denial of his request violated his free exer-
cise rights under the First Amendment and the Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq.
On March 19, 2014, the District Court granted respond-
ent’s motion for summary judgment as to Ben-Levi’s
RLUIPA claim and his requests for declaratory and injunc-
tive relief, finding them mooted by Ben-Levi’s transfer from
Hoke to another facility. Doc. No. 33. After further filings,
the court granted respondent summary judgment on Ben-
Levi’s remaining free exercise claim for monetary damages.
2014 WL 7239858, at *1. The court first concluded that
respondent had not substantially burdened Ben-Levi’s
religious exercise. Id., at *4. Pursuant to NCDPS policy,
the court noted, “a Jewish Bible Study generally requires a
quorum of ten adult Jews,” although “[t]his requirement
may be waived when the study is led by a volunteer Rabbi.”
Id., at *3. Because respondent was merely enforcing this
policy, the court reasoned, and because Ben-Levi was al-
lowed to engage in private worship, his religious exercise
was not substantially burdened. Id., at *4.
The court further held that, even if Ben-Levi had demon-
strated a burden on his religious exercise, summary judg-
ment was appropriate because respondent’s actions were
reasonably related to legitimate penological interests in
(1) maintaining order, security, and safety; (2) balancing
inmate relationships; and (3) conserving personnel re-
sources. Id., at *3–*4. The court observed that extremist
groups in the past have used religious gatherings to “mask
their gang activity.” Ibid.
Ben-Levi appealed, and the Fourth Circuit summarily
affirmed “for the reasons stated by the district court.” 600
Fed. Appx. 899, 900 (CA4 2015) (per curiam). Ben-Levi
Cite as: 577 U. S. ____ (2016) 5
ALITO, J., dissenting
then filed a pro se petition for a writ of certiorari. 3
II
Petitioner argues that NCDPS’s refusal to allow him to
meet with other Jewish inmates to study the Torah violated
his rights under the Free Exercise Clause of the First
Amendment. 4 “[W]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U. S. 78, 89 (1987); see O’Lone v.
Estate of Shabazz, 482 U. S. 342, 349–350 (1987). When
this test is applied to the current record, it is clear that
summary judgment on Ben-Levi’s free exercise claim was
improper.
A
First, the courts below erred in concluding as a matter of
law that respondent did not substantially burden Ben-
Levi’s religious exercise. The record clearly shows that
Ben-Levi, like many religious people, views group prayer
and study as an important part of his “religious ob-
servance.” Doc. No. 32, at 2. And Ben-Levi repeatedly
asserts that NCDPS’s policy denied him “a reasonable
opportunity of pursuing his faith.” Doc. No. 29, at 2; see
Doc. No. 32, at 5.
Respondent and the District Court have “not question[ed]
the sincerity of Petitioner’s beliefs.” Brief in Opposition 16,
n. 5; see 2014 WL 7239858, at *2, *4. Instead, their pri-
mary argument is that Ben-Levi’s religious exercise was not
burdened because respondent was merely enforcing
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3 Ben-Levi subsequently obtained counsel, who—more than 8 months
after Ben-Levi filed his pro se petition—submitted a reply brief.
4 Because I would reverse the decision below on free exercise grounds, I
have no occasion to consider whether Ben-Levi, proceeding pro se, ade-
quately preserved an objection based on RLUIPA, which provides broad-
er protection than the First Amendment. I would leave it to the lower
courts on remand to address that question, if necessary.
6 BEN-LEVI v. BROWN
ALITO, J., dissenting
NCDPS’s requirements for Torah studies. See, e.g., Brief in
Opposition 17–18; 2014 WL 7239858, at *4 (“Defendant did
not forbid Plaintiff from participating in a Jewish Bible
Study. Rather, she enforced DPS policy requiring that a
study with fewer than ten participants be led by a Rabbi”).
“Petitioner’s request for a Jewish bible study was not
denied per se,” respondent explains. Brief in Opposition 17.
“Instead, based upon research by Respondent Brown and
the Religious Practices Committee, Petitioner was informed
that a quorum (minyan) or presence of a qualified clergy
volunteer was required before the group could meet.” Ibid.“NCDPS’s position was based upon its understanding of the
basic tenets of the Jewish faith which it obtained through
consultations with an established leader of that faith who
confirmed that a minyan or qualified Rabbi is required for
‘Torah and Talmud study.’ ” Ibid. Respondent faults Ben-
Levi for failing to provide “documentation from reliable
sources or authorities on the Jewish faith disputing
NCDPS’s understanding that the Jewish religion itself, and
not just institutional concerns, requires a quorum or the
presence of a qualified teacher for worship or religious
study.” Id., at 18. As a result of this failure, respondent
argues, “the Record establishes as a matter of law that
Respondent Brown’s denial of Petitioner’s request did not
substantially burden his ability to practice the Jewish faith
but, rather, was in line with the tenets of that faith.” Ibid.
In essence, respondent’s argument—which was accepted
by the courts below—is that Ben-Levi’s religious exercise
was not burdened because he misunderstands his own
religion. 5 If Ben-Levi truly understood Judaism, respond-
——————
5 See, e.g., Brief in Opposition 17–18 (“Petitioner attempts to create an
issue of fact by arguing that there is a difference between worship and
study. According to [the rabbi that respondent consulted], however, the
minyan or qualified teacher requirements apply to Torah and Talmud
study”); Doc. No. 42–2, p. 6 (“It should be noted that, the language
(Jewish Bible Study) the Plaintiff uses in his complaint exhibits that he
Cite as: 577 U. S. ____ (2016) 7
ALITO, J., dissenting
ent implies, he would recognize that his proposed study
group was not consistent with Jewish practice and that
respondent’s refusal to authorize the group “was in line
with the tenets of that faith.” Ibid.; see also 2014 WL
7239858, at *4 (noting that “the requirement of a quorum of
ten adult Jews or the presence of a Rabbi” “ ‘ensures the
purity of the doctrinal message and teaching’ ”).
The argument that a plaintiff’s own interpretation of his
or her religion must yield to the government’s interpreta-
tion is foreclosed by our precedents. This Court has con-
sistently refused to “ ‘question the centrality of particular
beliefs or practices to a faith, or the validity of particular
litigants’ interpretations of those creeds.’ ” Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S.
872, 887 (1990). “Repeatedly and in many different con-
texts, we have warned that courts must not presume to
determine the place of a particular belief in a religion or the
plausibility of a religious claim.” Ibid.; see also Presbyte-
rian Church in U. S. v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U. S. 440, 450 (1969) (holding
that “the First Amendment forbids civil courts from” inter-
preting “particular church doctrines” and determining “the
importance of those doctrines to the religion”).
Just last Term, we emphasized that the government
cannot define the scope of personal religious beliefs. See
Holt v. Hobbs, 574 U. S. ___ (2015). In Holt, we held that a
prison policy preventing a Sunni Muslim inmate from
growing a ½-inch beard substantially burdened his reli-
gious exercise. Id., at ___ (slip op., at 1). In so holding, we
explicitly rejected the argument that there was no burden
because “not all Muslims believe that men must grow
beards,” reaffirming that “the guarantee of the Free Exer-
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is not knowledgeable to teach or guide others in the Jewish faith. What
Plaintiff incorrectly identifies as a Jewish Bible study is really called the
Torah/or Talmud study”).
8 BEN-LEVI v. BROWN
ALITO, J., dissenting
cise Clause . . . is ‘not limited to beliefs which are shared by
all of the members of a religious sect.’ ” Id., at ___ (slip op.,
at 8) (quoting Thomas v. Review Bd. of Indiana Employ-
ment Security Div., 450 U. S. 707, 715–716 (1981)).
As this discussion makes clear, respondent’s focus on the
correctness of Ben-Levi’s understanding of Judaism is
inconsistent with our case law. Even assuming that re-
spondent accurately identified the requirements for a group
Torah study under Jewish doctrine—and that is not at all
clear—federal courts have no warrant to evaluate “ ‘the
validity of [Ben-Levi’s] interpretations.’ ” Smith, supra, at
887. Instead, the courts below should have considered
whether the NCDPS policy imposed a substantial burden
on Ben-Levi’s ability to exercise his religious beliefs, as he
understands them. Ben-Levi believes that relaxing the
minyan requirement promotes his faith more than sacrific-
ing group Torah study altogether. 6 By ignoring Ben-Levi’s
actual beliefs and focusing solely on NCDPS’s understand-
ing of Judaism, respondent and the courts below considered
the wrong question.
Perhaps Ben-Levi—who proceeded pro se below and in
filing this petition—could have more clearly explained why
he believes group study is more important than adherence
to the minyan requirement. See Brief in Opposition 17–18.
But “[c]ourts should not undertake to dissect religious
beliefs . . . because [the] beliefs are not articulated with the
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6 Respondent notes that “in one of the few documents filed by Petitioner
in this case, the author states that ‘[i]t is best to pray in a synagogue with
a Minyan (a congregation of at least ten adult men).’ ” Brief in Opposi-
tion 18. Even assuming that Ben-Levi agrees with that statement,
respondent is not permitted to dictate the appropriate religious response
to Ben-Levi’s inability to muster a minyan. The prisoner in Holt believed
that “his faith requires him not to trim his beard at all,” but he preferred
a ½-inch beard to no beard. Holt v. Hobbs, 574 U. S. ___, ___ (2015) (slip
op., at 4). Likewise, Ben-Levi believes that a study group with fewer
than 10 Jewish participants is preferable to no study group at all.
Respondent has no business questioning the validity of this belief.
Cite as: 577 U. S. ____ (2016) 9
ALITO, J., dissenting
clarity and precision that a more sophisticated person
might employ.” Thomas, 450 U. S., at 715. Ben-Levi has
unmistakably indicated that he prefers group study with-
out a minyan to no group study at all, and “it is not for us to
say that the line he drew was an unreasonable one.” Ibid.Nor can I conclude that Ben-Levi’s ability to engage in
“private worship” shows that his religious exercise was not
burdened. See 2014 WL 7239858, at *3–*4; Brief in Oppo-
sition 9. If the opportunity to pray and study privately
were sufficient to satisfy the First Amendment, then pris-
ons could justify any restriction on religious exercise short
of depriving an inmate of his religious texts. Many prison-
ers, Ben-Levi included, consider it important to congregate
with other practitioners of their faith for prayer and discus-
sion. Preventing them from doing so burdens their reli-
gious exercise, even if they are allowed to study and pray
alone in a cell. Ben-Levi has presented ample evidence
that group study, even absent a minyan, is important to his
faith. The courts below thus erred in holding that his
religious exercise was not substantially burdened as a
matter of law.7
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7 Respondent argues that Ben-Levi’s claims are “moot” because “the
NCDPS Policy at issue in this case was amended and now allows ap-
proved inmates to lead worship and religious study groups when outside
clergy volunteers are not available.” Brief in Opposition 13. This argu-
ment provides no basis for denying certiorari here. “The voluntary
cessation of challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resumption of the
challenged conduct as soon as the case is dismissed.” Knox v. Service
Employees, 567 U. S. ___, ___–___ (2012) (slip op., at 6–7).
Even if respondent could overcome that obstacle, the new policy does
nothing to alleviate the burden on Ben-Levi’s religious exercise. The
“amended” policy allows an inmate to lead a study group only if a “com-
munity volunteer is not available . . . and there is sufficient offender
interest (10 or more designated faith group members).” App. to Brief in
Opposition, Exh. A, p. 6. Jewish prisoners thus need either a qualified
volunteer or a quorum of 10 Jews in order to hold a study group—just as
they did under the previous policy.
10 BEN-LEVI v. BROWN
ALITO, J., dissenting
B
Moreover, contrary to the conclusions of the courts below,
respondent has not demonstrated that the burden on Ben-
Levi’s religious exercise was reasonably related to legiti-
mate penological interests. Respondent contends that
several government interests justify NCDPS’s policy, in-
cluding (1) maintaining order, security, and safety; (2)
balancing inmate relationships; and (3) conserving person-
nel resources. 2014 WL 7239858, at *3–*4; Brief in Opposi-
tion 18–19. I do not question the importance of these inter-
ests. See, e.g., Holt, 574 U. S., at ___ (slip op., at 10)
(“Prison officials are experts in running prisons and evalu-
ating the likely effects of altering prison rules, and courts
should respect that expertise”). But respondent’s invoca-
tion of these interests is insufficient to justify NCDPS’s
policy toward Jewish inmates. The problem with these
asserted justifications is that they seem to apply equally to
inmates of other religions, who were nevertheless allowed
to meet in groups of fewer than 10 without an outside
leader. For instance, respondent has given no reason to
believe that Jewish prisoners are more inclined than pris-
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If anything, this change aggravates the religious liberty problem.
There are strong reasons to believe that NCDPS made this change for the
specific purpose of defeating Jewish prisoners’ claims. (Where else did
the 10-inmate requirement come from?) In other words, there is strong
reason to believe that Jewish inmates but not Christian inmates would
have trouble satisfying this requirement. And if NCDPS previously did
not think that penological concerns necessitated such a requirement for
non-Jewish groups, what justification is there for imposing such a
categorical rule now?
Finally, even if NCDPS had meaningfully changed its policy, such a
change could not moot Ben-Levi’s backward-looking damages claim.
“Untold numbers of cases illustrate the rule that a claim for money
damages is not moot, no matter how clear it is that the claim arises from
events that have completely concluded without any prospect of recur-
rence.” 13C C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure §3533.3, p. 6 (3d ed. 2008); see, e.g., Board of Pardons v. Allen,
482 U. S. 369, 370–371, n. 1 (1987).
Cite as: 577 U. S. ____ (2016) 11
ALITO, J., dissenting
oners of other religions to “ ‘us[e] faith practice to mask
their gang activity.’ ” 2014 WL 7239858, at *4. Nor is there
any indication that a Jewish study group is more likely
than a Christian or Muslim group to impede order, com-
promise inmate relationships, or absorb personnel re-
sources. The State has no apparent reason for discriminat-
ing against Jewish inmates in this way. The District Court
erred in holding otherwise, and the Fourth Circuit erred
in affirming. 8 I would thus grant certiorari, summarily
reverse the judgment below, and remand for further
proceedings.
Needless to say, the Court’s refusal to grant review in
this case does not signify approval of the decision below.
But the Court’s indifference to this discriminatory in-
fringement of religious liberty is disappointing.
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8 The courts below also erred in concluding as a matter of law that
respondent did not intentionally violate Ben-Levi’s free exercise rights.
See 2014 WL 7239858, *4 (EDNC, Dec. 18, 2014). Respondent explicitly
rejected Ben-Levi’s request for a group Torah study, knowing full well
that this decision would completely prevent him from praying or studying
with other Jewish inmates. See Doc. No. 32, p. 3; Doc. No. 42–2, at 5–6.
There is thus a genuine issue of material fact as to whether respondent
acted intentionally.