Yellowbear v. Lampert

FILED
United States Court of Appeals
Tenth Circuit

January 23, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREW J. YELLOWBEAR, JR.,

Plaintiff - Appellant,
v. No. 12-8048

ROBERT O. LAMPERT, Director,
Wyoming Department of Corrections;
STEVE HARGETT, Warden,
Wyoming Medium Correctional
Institution, individually and in their
official capacities,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:11-CV-00346-ABJ)

Sean Connelly of Reilly Pozner LLP, Denver, Colorado, for Plaintiff-Appellant.

Melissa E. Westby, Senior Assistant Attorney General (Peter K. Michael,
Attorney General, and John D. Rossetti, Deputy Attorney General, with her on the
brief), Wyoming Attorney General’s Office, Cheyenne, Wyoming, for
Defendants-Appellees.

Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District
Judge. *

*
The Honorable R. Brooke Jackson, United States District Judge for the
District of Colorado, sitting by designation.
GORSUCH, Circuit Judge.

Andrew Yellowbear will probably spend the rest of his life in prison. Time

he must serve for murdering his daughter. With that much lying behind and still

before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the

sincerity of his religious beliefs or that they are the reason he seeks access to his

prison’s sweat lodge — a house of prayer and meditation the prison has supplied

for those who share his Native American religious tradition. Yet the prison

refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we

have this litigation. While those convicted of crime in our society lawfully forfeit

a great many civil liberties, Congress has (repeatedly) instructed that the sincere

exercise of religion should not be among them — at least in the absence of a

compelling reason. In this record we can find no reason like that.

I

Our story starts with Smith. In Employment Division v. Smith, 494 U.S.

872 (1990), the Supreme Court held that the Constitution’s Free Exercise Clause

does not exempt religious persons from the dictates of neutral laws of general

applicability. The devout must obey the law even if doing so violates every

article of their faith. When Smith was handed down, some worried that it upset

existing free exercise doctrine dating back to Sherbert v. Verner, 374 U.S. 398

(1963). In Sherbert and its progeny the Supreme Court had suggested that no

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law, not even a neutral law of general applicability, may “substantially burden”

the exercise of religion unless that burden amounts to the “least restrictive means”

of achieving a “compelling governmental interest.” Smith, 494 U.S. at 883; id. at

899 (O’Connor, J., concurring in the judgment). What protections Sherbert

appeared to afford religious observances, Smith appeared ready to abandon.

Concerned with just this possibility, worried that Smith left insufficient

room in civil society for the free exercise of religion, Congress set about the

business of “restoring” Sherbert, at least as a matter of statute. It opened its

efforts with the Religious Freedom Restoration Act of 1993. See 42 U.S.C.

§ 2000bb(b)(1). Passed nearly unanimously, RFRA was (and remains) something

of a “super-statute.” Michael Stokes Paulsen, A RFRA Runs Through It:

Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995). It

instructed that all forms of governmental action — state or federal — had to

satisfy Sherbert’s test or risk nullification.

But as it turned out, this marked only the opening lines in what proved to

be a long dialogue between Congress and the Court. In City of Boerne v. Flores,

521 U.S. 507 (1997), the Court held that RFRA stretched the federal hand too far

into places reserved for the states and exceeded Congress’s Section 5 enforcement

authority under the Fourteenth Amendment. As a result, the Court held RFRA

unconstitutional as applied to the states, though still fully operational as applied

to the federal government. See id. at 529-36.

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 Undaunted, Congress reentered the field soon enough, this time with the

Religious Land Use and Institutionalized Persons Act of 2000. In RLUIPA

Congress invoked not just its Fourteenth Amendment but also its Spending Clause

powers to (re)impose Sherbert’s balancing test on state action — though now

state action in only two specific arenas, arenas in which Congress found the

record of religious discrimination particularly clear and compelling. First, in the

land use context, where churches are sometimes disfavored by local zoning

boards because (among other things) church members are said to generate “too

much” traffic or congestion or noise when they gather for communal expressions

of faith. Second, in the prison context, where it is so easy for governmental

officials with so much power over inmates’ lives to deny capriciously one more

liberty to those who have already forfeited so many others. See Douglas Laycock

& Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39

Fordham Urb. L.J. 1021, 1021, 1025-41 (2012); Derek L. Gaubatz, RLUIPA at

Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner

Provisions, 28 Harv. J.L. & Pub. Pol’y 501, 510 & n.34 (2005). This time

Congress acted unanimously and this time the Court upheld its effort, at least

against a facial challenge under the Establishment Clause. See Cutter v.

Wilkinson, 544 U.S. 709, 725 (2005).

That takes us to the nub of our case. Mr. Yellowbear, an enrolled member

of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge

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to facilitate his religious exercises. The prison has refused. The prison’s sweat

lodge is located in the general prison yard and Mr. Yellowbear is housed in a

special protective unit (not because of any disciplinary infraction he has

committed, but because of threats against him). Prison officials insist that the

cost of providing the necessary security to take Mr. Yellowbear from the special

protective unit to the sweat lodge and back is “unduly burdensome.” Mr.

Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district

court discerned no statutory violation and entered summary judgment against Mr.

Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might

proceed to trial.

At the end of the day, we find that’s exactly the relief we must provide. 1

1
We speak of Mr. Yellowbear’s RLUIPA claim as against the prison for
convenience’s sake. In fact, his claim is against individual prison officials,
seeking prospective injunctive relief against them for violations of RLUIPA. In
this way, his case is a textbook application of Ex parte Young, 209 U.S. 123
(1908). Of course, RLUIPA itself contemplates not just traditional Ex parte
Young actions against individual officials but also claims directly against
governmental entities. See 42 U.S.C. § 2000cc-2(a). This statutory provision and
whatever sovereign immunity questions it may or may not raise are not before us.
See generally Sossamon v. Texas, 131 S. Ct. 1651 (2011). We also acknowledge
that, before the district court, Mr. Yellowbear pursued various other statutory
claims besides his RLUIPA/Ex parte Young claim. In this court, however, Mr.
Yellowbear has represented that he is prepared to abandon any other claims and
forms of relief if he prevails in undoing the district court’s grant of summary
judgment on his RLUIPA claim and is permitted to proceed with his effort to
secure prospective injunctive relief under Ex parte Young. Because that’s the
relief we find we must supply, all else is waived.

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 II

RLUIPA may be a “super statute,” capable of mowing down inconsistent

laws, but to win its application takes no small effort. A plaintiff must carry at

least two burdens, and even then can still lose if the government bears two

burdens of its own.

Take the plaintiff’s burdens first. RLUIPA requires us to ask whether an

inmate’s (1) religious exercise is (2) substantially burdened by prison policy. 42

U.S.C. § 2000cc-1(a). At the outset, then, RLUIPA requires the plaintiff to show

a religious exercise. The law does not protect from governmental intrusion every

act born of personal conscience or philosophical conviction. It protects only

those motivated by religious faith — in recognition, no doubt, of the unique role

religion, its free exercise, and its tolerance have played in the nation’s history.

See Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972); Frazee v. Ill. Dep’t of

Emp’t Sec., 489 U.S. 829, 833-35 (1989); United States v. Meyers, 95 F.3d 1475,

1482-84 (10th Cir. 1996); Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488-1500

(1990).

Of course, trying to separate the sacred from the secular can be a tricky

business — perhaps especially for a civil court whose warrant does not extend to

matters divine. But at least one feature of the statute’s “religiosity” requirement

often proves relatively unintrusive in its application and not infrequently

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dispositive: the question of sincere belief. RLUIPA does not offer refuge to

canny operators who seek through subterfuge to avoid laws they’d prefer to

ignore. Like those who set up “churches” as cover for illegal drug distribution

operations. Or those who, facing the difficult realities of prison life, are tempted

to seek special dispensations through fraudulent assertions of faith. But in

suggesting we may ask whether a claimant truly holds a religious belief isn’t to

suggest we may decide whether the claimant’s religious belief is true. After all,

“Faith means belief in something concerning which doubt is still theoretically

possible.” William James, The Will To Believe 90 (1897). And even if it were

otherwise, federal judges are hardly fit arbiters of the world’s religions. When

inquiring into a claimant’s sincerity, then, our task is instead a more modest one,

limited to asking whether the claimant is (in essence) seeking to perpetrate a

fraud on the court — whether he actually holds the beliefs he claims to hold — a

comparatively familiar task for secular courts that are regularly called on to make

credibility assessments — and an important task, too, for ensuring the integrity of

any judicial proceeding. See, e.g., United States v. Quaintance, 608 F.3d 717,

720-23 (10th Cir. 2010); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312-14 (10th

Cir. 2010); United States v. Seeger, 380 U.S. 163, 184-85 (1965); Cutter, 544

U.S. at 725 n.13; Donald A. Giannella, Religious Liberty, Nonestablishment, and

Doctrinal Development. Part I. The Religious Liberty Guarantee, 80 Harv. L.

Rev. 1381, 1417-18 (1967).

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 While a RLUIPA plaintiff must show a sincerely held religious belief, the

statute protects considerably more than the right to hold that belief in private.

RLUIPA protects religious exercises. And as the Supreme Court explained in

Smith, “the ‘exercise of religion’ often involves not only belief and profession but

the performance of (or abstention from) physical acts: assembling with others for

a worship service, participating in sacramental use of bread and wine,

proselytizing, abstaining from certain foods or certain modes of transportation.”

494 U.S. at 877. Neither must the religious claimant prove that the exercise at

issue is somehow “central” or “fundamental” to or “compelled” by his faith. Just

as civil courts lack any warrant to decide the truth of a religion, in RLUIPA

Congress made plain that we also lack any license to decide the relative value of a

particular exercise to a religion. That job would risk in the attempt not only many

mistakes — given our lack of any comparative expertise when it comes to

religious teachings, perhaps especially the teachings of less familiar religions —

but also favoritism for religions found to possess a greater number of “central”

and “compelled” tenets. To avoid traps like these, Congress has directed courts to

protect “any exercise of religion, whether or not compelled by, or central to, a

system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis added).

Under this standard, it isn’t for judges to decide whether a claimant who seeks to

pursue a particular religious exercise has “correctly perceived the commands of

[his] faith” or to become “arbiters of scriptural interpretation.” Thomas v. Review

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Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981). Even if others of the same

faith may consider the exercise at issue unnecessary or less valuable than the

claimant, even if some may find it illogical, that doesn’t take it outside the law’s

protection. Instead, RLUIPA protects any exercise of a sincerely held religious

belief. When a sincere religious claimant draws a line ruling in or out a particular

religious exercise, “it is not for us to say that the line he drew was an

unreasonable one.” Id.; see also Abdulhaseeb, 600 F.3d at 1314; Steven C.

Seeger, Note, Restoring Rights to Rites: The Religious Motivation Test and the

Religious Freedom Restoration Act, 95 Mich. L. Rev. 1472, 1503-04 (1997).

Separate and apart from showing a sincerely motivated “religious exercise,”

a RLUIPA plaintiff must also demonstrate the government has imposed a

“substantial burden” on that exercise. 42 U.S.C. § 2000cc-1(a). Once again, the

inquiry here isn’t into the merit of the plaintiff’s religious beliefs or the relative

importance of the religious exercise: we can’t interpret his religion for him.

Instead, the inquiry focuses only on the coercive impact of the government’s

actions. In tort law, we take plaintiffs as we find them, assessing the extent of

damage done based on each plaintiff’s particular attributes and circumstances.

Here, we take religious claimants as we find them, assessing the coercive impact

the government’s actions on the individual claimant’s ability to engage in a

religious exercise, as he understands that exercise and the terms of his faith. This

court has explained that a burden on a religious exercise rises to the level of being

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“substantial” when (at the very least) the government (1) requires the plaintiff to

participate in an activity prohibited by a sincerely held religious belief, (2)

prevents the plaintiff from participating in an activity motivated by a sincerely

held religious belief, or (3) places considerable pressure on the plaintiff to violate

a sincerely held religious belief — for example, by presenting an illusory or

Hobson’s choice where the only realistically possible course of action available to

the plaintiff trenches on sincere religious exercise. Abdulhaseeb, 600 F.3d at

1315; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450

(1988); Thomas, 450 U.S. at 716-18.

As the first two of these categories demonstrate, state laws or practices that

require action or inaction in violation of a sincerely held religious belief amount

to “substantial” burdens on the exercise of religion. As the third category shows,

a burden can be “substantial” even if it does not compel or order the claimant to

betray a sincerely held religious belief. It is enough that the claimant is presented

with a choice in which he faces considerable pressure to abandon the religious

exercise at issue. The term “substantial,” after all, doesn’t mean complete or

total, so a “substantial burden” need not be a complete or total one. See, e.g., 17

The Oxford English Dictionary 67 (2d ed. 1989) (substantial suggests an “ample

or considerable amount”); see also Thomas, 450 U.S. at 718. Take, for example,

the case of the prison that fails to provide Jewish or Muslim inmates with food

that satisfies their religious dietary restrictions. The prison may not formally

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require prisoners to violate their religious convictions — after all, the prison

might say, there is no rule compelling prisoners to eat the food it provides,

prisoners can purchase and supply their own — but surely the choice as presented

remains a heavily freighted one. Abdulhaseeb, 600 F.3d at 1316-17; see also id.

at 1325 (Gorsuch, J., concurring). Neither must the choice the government

presents be so coercive as that to qualify as a substantial burden. Creating a

situation that forces the religious claimant to choose between following the

dictates of his faith and winning an important benefit or forgoing a considerable

penalty is coercion enough. Thomas, 450 U.S. at 717-18 (“important benefit”);

Lyng, 485 U.S. at 450 (“indirect” penalties and fines); see also Sherbert, 374 U.S.

at 404; Abdulhaseeb, 600 F.3d at 1315-16.

In this case, it doesn’t take much work to see that Mr. Yellowbear has

satisfied his obligations under both the sincere religious exercise and the

substantial burden tests. After all, at the summary judgment stage — where we

find ourselves, procedurally speaking in this case — Mr. Yellowbear is obliged to

show merely that a reasonable fact finder could rule his way when viewing the

evidence in the record in the light most favorable to him. And no one in this case

even tries to question that Mr. Yellowbear’s Northern Arapaho faith constitutes a

religion. No one disputes Mr. Yellowbear’s faith is sincerely held. No one

questions either that access to a sweat lodge is a form of religious exercise for

Mr. Yellowbear, or indeed for many who share his faith tradition. As Mr.

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Yellowbear has explained, it is his religious belief that a sweat lodge “is used to

cleanse and purify our mind, our spirit, and our bodies . . . upon leaving it is said

that you are born again physically and spiritually.” This court and others have

long recognized that sweat lodges play just this role in many Native American

religions — before RLUIPA did away with the inquiry we even held that the use

of sweat lodges is “central and fundamental” to those faith traditions. Werner v.

McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (collecting cases). 2

Neither do we doubt a reasonable finder of fact could conclude the prison

has substantially burdened Mr. Yellowbear’s religious exercise. As Mr.

Yellowbear understands his faith, it requires at least some access to a sweat lodge.

The prison refuses any access. This isn’t a situation where the claimant is left

with some degree of choice in the matter and we have to inquire into the degree

of the government’s coercive influence on that choice. The prison’s policy here

falls easily within Abdulhaseeb’s second category — flatly prohibiting Mr.

2
The federal Bureau of Prisons has likewise stated that “the purification
ceremony of the Sweat Lodge” is “a cornerstone” of Native American religious
traditions. Fed. Bureau of Prisons, Dep’t of Justice, Inmate Religious Beliefs and
Practices: Native American 14 (Mar. 27, 2002). For more about the spiritual
(and secular) purposes sweat lodges serve, see Joseph Bruchac, The Native
American Sweat Lodge: History and Legends (1993); Arlene Hirschfelder &
Paulette Molin, The Encyclopedia of Native American Religions 287-88 (1992);
and Louis M. Holscher, Sweat Lodges and Headbands: An Introduction to the
Rights of Native American Prisoners, 18 New Eng. J. on Crim & Civ.
Confinement 33 (1992).

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Yellowbear from participating in an activity motivated by a sincerely held

religious belief.

III

Though Mr. Yellowbear has met his summary judgment burden, that isn’t

enough to guarantee him victory. Instead, the burden of persuasion now shifts to

the government. If it can show that the burden it has imposed on Mr. Yellowbear

serves a “compelling governmental interest” and “is the least restrictive means”

of furthering that interest, it can prevail yet. 42 U.S.C. § 2000cc-1(a). At

summary judgment, of course, the government must satisfy this test when the

facts in the record are viewed in the light most favorable to Mr. Yellowbear, as

the non-movant. Abdulhaseeb, 600 F.3d at 1311. The district court held that the

prison had succeeded in doing just this, but it is our duty to decide the question

again de novo, and we find ourselves compelled to disagree. Id. While RLUIPA

anticipates that its solicitude for religious exercise must sometimes yield to other

competing state interests, the prison hasn’t yet shown our case qualifies.

Perhaps the most important question we confront in the compelling interest

inquiry concerns the level of generality at which our analysis should proceed.

When a prison declines to accommodate a religious exercise, citing security and

cost concerns (as the prison does here), should we assess the “compellingness” of

those interests in the abstract? Or should we assess the “compellingness” of those

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interests (say) only as they appear in light of the particular circumstances of the

case before us?

The more abstract the level of inquiry, often the better the governmental

interest will look. At some great height, after all, almost any state action might

be said to touch on “one or another of the fundamental concerns of government:

public health and safety, public peace and order, defense, revenue,” and

measuring a highly particularized and individual interest “directly against one of

these rarified values inevitably makes the individual interest appear the less

significant.” J. Morris Clark, Guidelines for the Free Exercise Clause, 83 Harv.

L. Rev. 327, 330-31 (1969); see also Michael W. McConnell & Richard A.

Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L.

Rev. 1, 53 (1989) (“[A] common pitfall [in religious liberty cases] is to consider

the two sides of the balance at different levels of generality.”); Richard H. Fallon,

Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1323-25 (2007).

The text of RLUIPA and Supreme Court guidance, however, do not support

such a lopsided inquiry. The statute says the government must prove the

“compellingness” of its interest in the context of “the burden on that person” —

suggesting an inquiry that proceeds in light of the particular burden the

government has placed on the particular claimant before us. 42 U.S.C. § 2000cc-

1(a) (emphasis added). The Supreme Court has confirmed this understanding,

explaining that virtually identical statutory language in RFRA requires courts to

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“look[] beyond broadly formulated interests” and “scrutinize[] the asserted harm

of granting specific exemptions to particular religious claimants.” Gonzales v. O

Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 431 (2006). Put

simply, we must examine both sides of the ledger on the same case-specific level

of generality: asking whether the government’s particular interest in burdening

this plaintiff’s particular religious exercise is justified in light of the record in this

case. Id.; see also O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,

389 F.3d 973, 1019 (10th Cir. 2004) (McConnell, J., concurring), aff’d sub nom.

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418

(2006).

So with that guidance in mind, what’s the prison’s compelling interest at

play in this case? We see three possibilities.

A

The prison begins by suggesting that it cannot provide any access to a

sweat lodge because sweat lodges involve the use of hot coals and fire and are in

this way inherently unsafe for use in a prison environment (or at least they cannot

be made safe at a feasible cost). By way of support, the prison points to cases in

which other penitentiaries have refused to build or provide access to sweat lodges

and other courts have upheld those decisions over religious liberty objections.

See, e.g., Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008); Allen v. Toombs, 827

F.2d 563 (9th Cir. 1987).

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 But we’ve just witnessed one difficulty with this line of argument. It is our

statutory duty to decide whether the prison’s claimed safety and cost interests

qualify as compelling in the context of particular cases, not in the abstract. Just

because other prisons may have had a compelling interest in denying access to a

sweat lodge in other circumstances doesn’t necessarily prove, without more, that

all prisons have a compelling interest in denying access to sweat lodges in all

circumstances. Certainly, the prison hasn’t given us any reason to think that

conclusion follows here. Neither do the cases it cites: they hold only and more

prosaically that the particular access sought by the particular claimants in each

dispute was not feasible on the particular set of facts at issue.

A second and separate difficulty also comes quickly clear. Our prison has a

sweat lodge. Before this appeal, the prison expressed no dissatisfaction with its

operation. In all the summary judgment record amassed in the district court, we

can find not a clue suggesting a hint of trouble. As we will see later, the prison

even considered building a second sweat lodge in the protective custody unit,

ultimately rejecting it for reasons having nothing to do with the expected safety of

its operation. Put plainly, the argument advanced by the prison’s lawyers on

appeal about the “inherent dangers” of sweat lodges finds precisely no support in

the evidence given by the prison’s officials in district court. And such factually

unsupported “post-hoc rationalizations” aren’t the stuff of summary judgment

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victories in RLUIPA cases (or in most any other). Abdulhaseeb, 600 F.3d at

1318.

While saying this much, it’s perhaps just as important to observe what we

are not saying. We don’t take any issue with the cases the prison cites rejecting

RLUIPA challenges to sweat lodge access. Other prisons very well may have

compelling reasons to refuse to build sweat lodges given their particular resource

limitations and safety challenges. Neither do we mean to suggest that just

because a prison chooses to open a sweat lodge for some prisoners it must forever

maintain the lodge or provide unfettered access to it. Surely the granting of a

religious accommodation to some in the past doesn’t bind the government to

provide that accommodation to all in the future, especially if experience teaches

the accommodation brings with it genuine safety problems that can’t be addressed

at a reasonable price. If the rule were otherwise, it would only invite the

unwelcome side effect of discouraging prison officials from granting the

accommodation in the first place — a result directly at odds with RLUIPA’s

stated purpose. Instead, we mean to suggest here only that the appropriate level

of generality requires us to assess the government’s compelling interest assertions

in light of each case as it comes — and that the summary judgment record in this

case lacks any evidence suggesting that the current operation of this prison’s

sweat lodge is in any way problematic.

B

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 Retreating to the argument it did pursue in the district court, the prison

argues that its ban on Mr. Yellowbear’s access to the sweat lodge is warranted

because moving him back and forth between the protective custody unit and the

sweat lodge would require officials to “lock[] down a significant portion of the

facility” to ensure Mr. Yellowbear isn’t placed in “contact with other non-

protective custody inmates” who might seek to do him harm. And this ferrying

business, the prison says, has cost and administrative implications. Of course,

cost and administrative considerations are often intertwined and they certainly are

here. This isn’t (again) a case in which the prison has evidence suggesting an

inability to provide adequate security at any price. In the prison’s view, a lock

down can supply an acceptable level of security — but only at some marginal cost

it considers too high.

Two problems, it seems to us, arise here, preventing us from saying that the

government has carried its summary judgment burden of establishing a

compelling interest as a matter of law.

In the first place, the prison does not even attempt to quantify the costs it

faces, let alone try to explain how these costs impinge on prison budgets or

administration. Instead, the prison simply asserts, flatly and without more, that

the marginal costs are “unduly burdensome.” But conclusory legalese (borrowed

from far-flung substantive due process doctrine, no less) does no more to prove a

compelling interest than post-hoc rationalizations unsupported by record

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evidence. RLUIPA’s compelling interest test is a strict one: Congress borrowed

its language from First Amendment cases applying perhaps the strictest form of

judicial scrutiny known to American law. That test isn’t traditionally the sort of

thing that can be satisfied by the government’s bare say-so. See, e.g., City of

Richmond v. J.A. Croson Co., 488 U.S. 469, 500-01 (1989).

To be sure, the Supreme Court has suggested that RLUIPA’s “compelling

governmental interest” test holds an unusual twist in the prison context. Though

RLUIPA uses the same linguistic formulation for prison and land use cases,

though it uses the same language found in RFRA, the Court has told us that

“context matters.” Cutter, 544 U.S. at 723 (internal quotation marks and brackets

omitted). So while courts do not usually afford much deference to the

government when assessing whether its claimed interest is a “compelling” one in

RFRA or even land use cases arising under RLUIPA, see, e.g., O Centro, 546

U.S. at 432-33, in the prison context the Supreme Court has instructed us to apply

“due deference to the experience and expertise of prison and jail administrators in

establishing necessary regulations and procedures to maintain . . . security . . .

consistent with consideration of costs and limited resources,” Cutter, 544 U.S. at

723. How all this fits together raises some interesting questions. See, e.g., Marci

A. Hamilton, The Establishment Clause During the 2004 Term: Big Cases, Little

Movement, 2004-2005 Cato Sup. Ct. Rev. 159, 169 (wondering whether Cutter

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seeks to reestablish “the low-level scrutiny” the Court applied to prison cases

before RLUIPA).

But this much is clear and clearly enough for our purposes: the deference

this court must extend the experience and expertise of prison administrators does

not extend so far that prison officials may declare a compelling governmental

interest by fiat. At summary judgment, the government must do more than assert

an “undue burden” or a “compelling interest.” When weighing the existence of a

compelling interest, the deference due prison administrators may be enough to

nudge a questionable case across the line, but it doesn’t mean prison officials get

to recognize compelling interests on their own. If that were the case, RLUIPA’s

supposedly strict judicial scrutiny would become no judicial scrutiny at all. See

Werner, 49 F.3d at 1480 (“[T]he state must do more than simply offer conclusory

statements that a limitation on religious freedom is required for security, health or

safety in order to establish that its interests are of the highest order.” (internal

quotation marks omitted)); Koger v. Bryan, 523 F.3d 789, 800 (7th Cir. 2008)

(“We can only give deference to the positions of prison officials as required by

Cutter . . . when the officials have set forth those positions and entered them into

the record.”); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 40 (1st Cir. 2007) (“[T]o

prevail on summary judgment, [a prison] ‘must do more than merely assert a

security concern.’” (quoting Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988

(8th Cir. 2004))); Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008) (denying

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summary judgment because the record “contains no competent evidence as to the

additional cost of providing Halal or kosher meat to . . . Muslim prisoners”).

Neither is this the end to the problems confronting the government’s lock

down rationale. It faces at least one more. Mr. Yellowbear has attested that

prison-wide lock downs already occur on a daily and sometimes hourly basis to

transport “specially housed” inmates — inmates in the geriatric unit, the women’s

unit, and (like himself) the protective custody unit — to other parts of the prison,

including the medical wing. Mr. Yellowbear has presented affidavits, as well,

from other inmates stating much the same thing. All of these uncontested

statements we must take as true at summary judgment. And they can’t help but

suggest this question: If lock downs can be accomplished on a daily basis

consistent with the prison’s administrative concerns to facilitate inmates’ medical

needs, what compelling interest is served by refusing any lock downs ever to

facilitate an inmate’s religious needs? Put differently, why is this religious

exemption offensive to the prison’s putatively compelling no-lock-down interest

when other secular exemptions are not?

A law’s underinclusiveness — its failure to cover significant tracts of

conduct implicating the law’s animating and putatively compelling interest — can

raise with it the inference that the government’s claimed interest isn’t actually so

compelling after all. As the Supreme Court has said, it’s sometimes hard to see

how a law or regulation can “be regarded as protecting an interest of the highest

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order,” as serving a compelling interest, “when it leaves appreciable damage to

[the] supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal quotation marks

omitted); see also O Centro, 546 U.S. at 433; United States v. Friday, 525 F.3d

938, 958 (10th Cir. 2008); Fallon, supra, at 1327; Eugene Volokh, Freedom of

Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L.

Rev. 2417, 2420 (1996) (explaining how in the free speech context a “law’s

underinclusiveness . . . may be evidence that an interest is not compelling,

because it suggests that the government itself doesn’t see the interest as

compelling enough to justify a broader statute”). Evidence that the prison grants

secular exceptions more readily than religious exemptions to a putatively

compelling policy can raise the inference, too, that its most compelling interest

may actually be discrimination against, or at least indifference to, the religious

liberties of incarcerated persons — precisely the scenario RLUIPA identified as

too prevalent in our society and sought to redress. See, e.g., Lukumi, 508 U.S. at

537-38; Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170

F.3d 359, 365 (3d Cir. 1999); Fallon, supra, at 1327; Volokh, supra, at 2423

(“Underinclusiveness might suggest . . . that the government’s real interest wasn’t

the stated one but was rather just a desire to favor one form of speech over

another, or to suppress offensive or otherwise disfavored speech.”).

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 At the same time, it is important to acknowledge that inferences like these

are not inevitable or irrebuttable. We know that few statutes pursue a single

purpose at any cost, without reference to competing interests. See Genova v.

Banner Health, 734 F.3d 1095, 1099 (10th Cir. 2013); John F. Manning, What

Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 74-75 (2006).

Given this, it would be odd if the mere fact that a law contains some secular

exceptions always sufficed to prove the government lacked a compelling interest

in avoiding another exception to accommodate a claimant’s religious exercise. If

that were the case, the compelling interest test would seem nearly impossible to

satisfy and RLUIPA’s suggestion that religious accommodations must sometimes

give way to other competing governmental interests would appear close to a dead

letter.

When exactly is (and isn’t) underinclusiveness enough to undermine the

credibility of a claimed compelling interest? That question takes us into territory

not yet fully charted, but at least this much we can say with confidence. A

government can rebut an argument from underinclusion by showing that it hasn’t

acted in a logically inconsistent way — by (say) identifying a qualitative or

quantitative difference between the particular religious exemption requested and

other secular exceptions already tolerated, and then explaining how such

differential treatment furthers some distinct compelling governmental concern.

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 Take an example. This court has said that the government’s “supposedly

vital interest” in preventing eagle deaths isn’t undermined simply because the

government has restricted intentional eagle killings more than accidental ones.

Friday, 525 F.3d at 958-59. After all, trying to avoid accidental eagle deaths

from electrocution by the power lines that crisscross the West is enormously more

difficult than deciding to cancel a hunting expedition. Id. at 959. And surely the

government has a compelling interest in not subjecting citizens to laws they can’t

realistically avoid breaking. So it is that in these circumstances, we have

explained, a law’s underinclusiveness might bespeak neither a shaky commitment

to the asserted compelling interest nor any discriminatory intent. See id.; see also

Fegans v. Norris, 537 F.3d 897, 906-07 & n.4 (8th Cir. 2008); Republican Party

of Minn. v. White, 416 F.3d 738, 778 (8th Cir. 2005).

Problem is, in this case the prison has made no effort (of any kind) to

respond to Mr. Yellowbear’s underinclusiveness evidence. Mr. Yellowbear’s

evidence about the regularity of secular lock downs dangles out there unanswered,

inviting a reasonable fact finder to infer that the prison’s desire to avoid lock

downs isn’t really as compelling as it insists, and that the prison may even harbor

some animus or at least indifference to his religious exercise. To be sure, we can

imagine responses the prison could have attempted that would have done much to

address Mr. Yellowbear’s underinclusiveness argument. What if, for example, the

prison’s resources are already stretched thin by lock downs for prisoners’ medical

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needs, and the marginal cost of any further lock down would be the proverbial

straw, overwhelming the prison’s resources? What if not all lock downs are

created equal, and those needed to facilitate sweat lodge access (say) require

considerably more personnel for longer periods than lock downs needed to

facilitate medical treatment? Maybe evidence along these or other directions

could have mitigated or undermined the sort of inferences that arise from Mr.

Yellowbear’s underinclusiveness argument. But in this case we have none of that.

C

In a final effort to establish a compelling governmental interest, the prison

aims in a different direction still. Even if it can easily accommodate Mr.

Yellowbear, the prison insists that granting his request will lead other specially

housed inmates to flood it with similar requests. As the prison puts it, Mr.

Yellowbear’s request “would be just the tip of the iceberg.” And avoiding a

slippery slope down to submerged troubles just out of present view, the prison

suggests, amounts to a compelling interest all its own.

Again, however, the prison gives us too little to work with. It identifies

nothing in the summary judgment record suggesting that there are untold numbers

of specially housed prisoners lined up waiting to join Mr. Yellowbear. Or that

accommodating them would stretch prison resources too far. Describing (and

rejecting) a similarly speculative slippery slope argument in the RFRA context,

the Supreme Court said that the claim “echoe[d] the classic rejoinder of

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bureaucrats throughout history: If I make an exception for you, I’ll have to make

one for everybody, so no exceptions.” O Centro, 546 U.S. at 436. The whole

point of RFRA and RLUIPA is to make exceptions for those sincerely seeking to

exercise religion. Id. (“RFRA operates by mandating consideration, under the

compelling interest test, of exceptions to rules of general applicability.” (internal

quotation marks and brackets omitted)). It can’t be the case that the speculative

possibility that one exception conceivably might lead to others is always reason

enough to reject a request for the first exception. Instead, the Court tells us, the

feasibility of requested exceptions usually should be assessed on a “case-by-case”

basis, taking each request as it comes: accommodations to avoid substantial

burdens must be made until and unless they impinge on a demonstrated

compelling interest. Id. The Court has recognized the possibility that there may

be cases where that approach is inappropriate and the “need for uniformity

precludes the recognition” of any exceptions to anyone, or where a well-

documented slippery slope argument could support such a uniform rule. Id. But

one thing is certain. To warrant any of that, the law requires considerably more

than milquetoast musing that granting one request might lead to others.

IV

It turns out the prison has failed to carry not just one of its statutory

burdens in this case, but both. Even assuming (without granting) that the prison

could prove a compelling interest in denying Mr. Yellowbear any access to the

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sweat lodge (say, some amalgam of cost and security concerns), RLUIPA would

still require it to show that its policy of no access, ever, represents the least

restrictive means of accomplishing that interest. And here the prison falls short.

As part of its burden to show that its policy represents the least restrictive

means available to further its putatively compelling interest, the government must

of course “refute . . . alternative schemes” suggested by the plaintiff to achieve

that same interest and show why they are inadequate. United States v. Wilgus,

638 F.3d 1274, 1289 (10th Cir. 2011). For his part, Mr. Yellowbear has offered

(at least) two less restrictive alternatives that, he says, should satisfy the prison’s

related cost and security concerns. First, Mr. Yellowbear has presented an

affidavit suggesting officials could avoid the need for any lock down at all by

holding sweat lodge ceremonies early in the day, before the main yard (where the

sweat lodge stands) opens to general population inmates. Second, he has

suggested that the prison might build a second sweat lodge in the protective

custody unit. Both alternatives, he argues, would allow the government to

achieve its interest in avoiding any additional lock downs while facilitating his

religious exercise.

For its part, the prison offers no meaningful reply to the first alternative.

In some places, the prison’s brief seems to suggest that it considered the idea and

rejected it — and that this, by itself, is enough to discharge any burden under the

least restrictive means test. But the government’s burden here isn’t to mull the

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claimant’s proposed alternatives, it is to demonstrate the claimant’s alternatives

are ineffective to achieve the government’s stated goals. In other places, the

prison’s brief takes a different tack, asking us to make much of the fact that the

prison offered other alternatives to Mr. Yellowbear that he rejected (like a

transfer to an out-of-state prison, away from friends and family). But this isn’t

sufficient either to discharge the government’s burden. In fact, it is logically

irrelevant: the claimant’s rejection of alternatives the government offers doesn’t

address the question whether his suggested alternatives suffice to achieve the

government’s asserted compelling interest. Cf. Arthur Ernest Davies, A

Text-Book of Logic 573 (1915) (“In order to refute an assertion, Aristotle says we

must prove its contradictory; the proof, consequently, of a proposition which

stood in any other relation than that to the original, would be an ignoratio

elenchi.”). 3

As to Mr. Yellowbear’s second proposed alternative (building a new sweat

lodge in the protective custody unit), the prison has presented no evidence that

the building or maintenance costs would be prohibitive or that the operations

3
While this offer might bear some rational relationship to the substantial
burden test (on the theory that the prison isn’t actually preventing Mr. Yellowbear
from using a sweat lodge), the prison never made this argument and so we decline
to pass on it. Besides, the prison’s offer would just move the substantial burden
inquiry from Abdulhaseeb’s second category into its third — raising the question
whether it is a “substantial burden” to force a claimant to choose between a
religious exercise and accepting a transfer to a prison out of state, away from
friends and family. See 600 F.3d at 1315.

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would be unsafe (quite at odds, again, with its lawyers’ assertions about the

inherent safety problems of sweat lodges). Instead, the prison argues that the

only viable site in the protective custody unit would be so close to the general

prison yard that Mr. Yellowbear and others would be seen by general population

inmates as they enter and exit the lodge. And this, the prison contends, implicates

another and new putatively compelling interest — this one in preventing Mr.

Yellowbear from being seen by general population inmates because they may

attempt to attack him if they can identify him.

With the introduction of a new and different claimed compelling interest, it

seems we must return to the compelling interest inquiry we’ve already discussed,

see supra pp. 13-26, to see how it holds up. In doing so, we quickly confront

reason to question it: Mr. Yellowbear and other prisoners have attested, again

without reply from the prison, that he and the other protective custody inmates are

routinely seen by general population inmates at meal times. So the prison policy

is underinclusive in yet another significant and potentially relevant way — the

prison allows an exception for meals but not for religious exercises. And this

raises by now familiar questions: Do prison officials really have a compelling

interest in preventing Mr. Yellowbear from being seen by other inmates slightly

more frequently than he already is? Is there any relevant difference between the

exception for meal times and the exception Mr. Yellowbear has requested? Once

again, the prison fails to provide any evidence or argument in response to these

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questions, leaving us at a loss to see how it could meet its compelling interest

burden as a matter of law. Besides, Mr. Yellowbear has presented evidence that

any anonymity interests the prison might have could be resolved less restrictively

by holding the ceremonies in a protective custody unit sweat lodge on weekends,

when general population prisoners (he says, again without dispute) won’t be

around to observe those who enter or leave the lodge — a potential less restrictive

means the prison has (again) failed to refute.

V

So far the parties have contended at the level of absolutes. Mr. Yellowbear

has sought some access to a sweat lodge. The prison has refused any access. But

what happens if (or when) the discussion turns to questions of degree? What

happens if the marginal burden on Mr. Yellowbear’s religious exercise becomes

much less significant — the prison allows him periodic access, say, but not as

often as his faith suggests — and the marginal cost to the prison much greater —

because ever more visits mean ever more expense? Surely the relative strength of

the two parties’ interests would appear quite different in that new light. Surely as

well RLUIPA must account for that. Even accepting that the imposition on Mr.

Yellowbear in this scenario might still qualify as a “substantial burden” (the

government’s policy would still prohibit that which his faith compels), the change

in the relative strength of the parties’ positions would reveal itself at later stages

in the doctrinal analysis, with the government’s interests now arguably appearing

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more “compelling” and its policies more “narrowly tailored.” For now, however,

these subtler (and admittedly more difficult) questions remain for the parties and

district court to consider on remand. As litigated to us, the burden on Mr.

Yellowbear’s religious exercise is high (no access of any kind, ever, to a religious

exercise) and the cost to the prison left undefined by the record and thus

presumably low. In these circumstances, we don’t doubt a reasonable trier of fact

could find a RLUIPA violation.

The district court’s grant of summary judgment on Mr. Yellowbear’s

RLUIPA claim seeking prospective injunctive relief under Ex parte Young is

vacated and this case is remanded for further proceedings consistent with this

opinion.

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