In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-‐‑2604
DAVID A. SCHLEMM,
Plaintiff-‐‑Appellant,
v.
EDWARD F. WALL, Secretary, Wisconsin Department of Cor-‐‑
rections, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-‐‑cv-‐‑272-‐‑wmc — William M. Conley, Chief Judge.
____________________
SUBMITTED APRIL 7, 2015 — DECIDED APRIL 21, 2015
____________________
Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. David Schlemm, a member
of the Navajo Tribe, has been imprisoned in Wisconsin since
1999. In this suit under the Religious Land Use and Institu-‐‑
tionalized Persons Act (RLUIPA or the Act), 42 U.S.C.
§§ 2000cc to 2000cc–5, Schlemm seeks an order requiring the
prison system to accommodate some of his religious practic-‐‑
2 No. 14-‐‑2604
es. The district court dismissed some of his claims for failure
to exhaust intra-‐‑prison remedies, see 2014 U.S. Dist. LEXIS
78601 at *19–26 (W.D. Wis. June 10, 2014), and we affirm that
aspect of the decision without any need to add to the district
judge’s analysis. Schlemm’s arguments under the Constitu-‐‑
tion’s First and Fifth Amendments (applied to the states by
the Fourteenth) we bypass, because the Act provides greater
protection. But Schlemm has solid arguments on the two
statutory claims on which he exhausted all administrative
remedies.
Each autumn members of the Navajo Tribe celebrate a
Ghost Feast, part of a harvest celebration that honors the
dead through dancing, praying, and eating traditional foods.
Wisconsin concedes that this celebration is religious in na-‐‑
ture, and the state does not contest Schlemm’s contention
that he sincerely believes that the “traditional foods” should
include game meat (venison). The prison system nonetheless
has rejected Schlemm’s request for game meat or even
ground beef to be included in Indian tacos (meat, shredded
lettuce, tomatoes, and onions in frybread shells). Defendants
rejected Schlemm’s offer to secure a sealed platter of ac-‐‑
ceptable game meat from an outside vendor. The prison has
told Schlemm to use stew from the regular cafeteria line—
and this even though the prison system permits Jewish in-‐‑
mates to have outside vendors furnish sealed Seder platters
for Passover and permits participants in monthly sweat
lodge ceremonies to import packets of appropriate foods.
Defendants maintain that serving venison would be too
expensive, would exceed the capacity of institutional kitch-‐‑
ens (which unlike restaurants are not set up to serve indi-‐‑
vidually selected meals), and would violate a statewide rule
No. 14-‐‑2604 3
limiting prison foods to those inspected and certified by the
United States Department of Agriculture. The prison system
offers Kosher and Halal foods but does not allow any inmate
to pick a particular menu (with the apparent exception of the
Seder platters and sweat lodge packets).
The Act provides:
No government shall impose a substantial burden on the reli-‐‑
gious exercise of a person residing in or confined to an institu-‐‑
tion, … even if the burden results from a rule of general applica-‐‑
bility, 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.
42 U.S.C. §2000cc–1(a). The district court granted summary
judgment to the prison system, ruling that the absence of
venison for the Ghost Feast does not impose a “substantial
burden” on Schlemm’s religious exercise. The court added
that if this is wrong Schlemm still loses, because the state has
a “compelling governmental interest” in holding down costs
and using USDA-‐‑inspected meats, and that requiring
Schlemm to eat whatever the kitchen is serving is the “least
restrictive means” of furthering those interests. 2014 U.S.
Dist. LEXIS 78601 at *30–36.
Summary judgment requires the court to take all disput-‐‑
ed material facts in the light most favorable to the party op-‐‑
posing the motion. Schlemm testified by deposition that
game meat during the Ghost Feast is important to him as a
religious matter; declarations from other practitioners of
Navajo rites and traditions support that view. The district
4 No. 14-‐‑2604
court thought this inadequate to establish that lack of veni-‐‑
son imposes a substantial burden, as we defined that phrase
in Eagle Cove Camp & Conference Center, Inc. v. Woodboro, 734
F.3d 673, 680 (7th Cir. 2013): to be substantial, a burden must
be “one that necessarily bears direct, primary, and funda-‐‑
mental responsibility for rendering religious exercise … ef-‐‑
fectively impracticable.” If that were the standard, then
Schlemm would lose, for he still could dance and pray dur-‐‑
ing the Ghost Feast. But two later decisions of the Supreme
Court—Holt v. Hobbs, 135 S. Ct. 853 (2015), and Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)—articulate a
standard much easier to satisfy.
Holt, a Muslim confined in a state prison, believes that he
must wear a beard. Although he believes that his faith for-‐‑
bids any shaving or trimming of the beard, he acknowl-‐‑
edged the prison’s concern about hiding contraband in a
long beard and proposed a compromise: a beard one-‐‑half-‐‑
inch long. The prison rejected even that accommodation, but
the Supreme Court held that the Act entitles Holt to have a
short beard. It concluded among other things that Holt “easi-‐‑
ly satisfied” (135 S. Ct. at 862) the “substantial burden” re-‐‑
quirement because shaving “seriously violates his religious
beliefs” (ibid., quoting from Hobby Lobby). The Court did not
ask whether a requirement to be clean-‐‑shaven would make
adherence to Islam “effectively impracticable”, the language
of Eagle Cove. As the Court noted in Holt, the Act covers “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).
Eagle Cove effectively limits the Act to those beliefs or prac-‐‑
tices that are “central” to religious beliefs; its approach did
not survive Hobby Lobby and Holt.
No. 14-‐‑2604 5
The Supreme Court’s formulation leaves a lot of uncer-‐‑
tainty. How is a court to tell whether a given restriction “se-‐‑
riously” violates or contradicts religious beliefs? What, in-‐‑
deed, does “seriously” mean?—more than “modestly” and
less than “overwhelmingly,” but there’s a lot of space in that
range. Schlemm says that inability to eat game meat at the
Ghost Feast has a serious effect, and the record is not so lop-‐‑
sided as to permit that contention’s rejection on summary
judgment. That Schlemm proposed a compromise (ground
beef) does not scuttle his claim, any more than Holt’s pro-‐‑
posed compromise (a short beard) did.
The parties have not joined issue on how to distinguish
“serious” from other effects. For now it is enough to say that
the district court erred by rejecting Schlemm’s position on
this paper record. Only two other courts of appeals have ad-‐‑
dressed the question whether denying access to “traditional
foods” for a religious celebration imposes a substantial bur-‐‑
den on religion. Both reached the same conclusion we do:
the prison system is not entitled to summary judgment.
Haight v. Thompson, 763 F.3d 554, 564–67 (6th Cir. 2014); Ab-‐‑
dulhaseb v. Calbone, 600 F.3d 1301, 1319–20 (10th Cir. 2010).
The district court’s fallback holding that the state has a
“compelling” interest in the “least restrictive” way to resolve
a request for Schlemm’s proposed accommodation is unten-‐‑
able. Saving a few dollars is not a compelling interest, nor is
a bureaucratic desire to follow the prison system’s rules. The
Act requires prisons to change their rules to accommodate
religious practices; rules’ existence is not a compelling obsta-‐‑
cle to change. The prison system in Holt had a rule against
beards, but the Court deemed it an inadequate answer to the
inmate’s request.
6 No. 14-‐‑2604
The prison system’s insistence on USDA-‐‑inspected meat
hints at a potentially compelling justification: safe food. But
for that justification to be “compelling” and the means “least
restrictive,” the prison system would have to prove that (a)
all meats not inspected by the USDA are unsafe, and (b) no
USDA-‐‑inspected venison products are available. The Court
stressed in Holt that the prison system has the burdens of
production and persuasion on the compelling-‐‑interest and
least-‐‑restrictive-‐‑means defenses. The Act “requires the [pris-‐‑
on] not merely to explain why it denied the exemption but to
prove that denying the exemption is the least restrictive
means of furthering a compelling governmental interest.”
135 S. Ct. at 864. Wisconsin has not offered any evidence to
show that no USDA-‐‑inspected game meats are available—
and the fact that venison is widely sold in supermarkets and
served in restaurants shows that it can be safe for human
consumption. It is difficult for us to believe that Wisconsin
would be unable to find game meats that could be served
without danger to the prisoners; certainly we cannot indulge
such an assumption on an empty record.
Wisconsin fears that every prisoner would demand a re-‐‑
ligious diet that requires daily, person-‐‑specific preparation
so expensive that in the aggregate the costs of compliance
would be crippling and the need to avoid them “compel-‐‑
ling.” But it has not tried to estimate what it would cost to
honor Schlemm’s request; expense may be negligible if he
finds a vendor to provide a sealed platter of food acceptable
for the Ghost Feast. The prison’s willingness to allow exter-‐‑
nal platters for Passover and sweat lodges makes it hard to
credit an argument that any culinary accommodation will
bring the prison’s administration to its knees. If the Church
of the New Song makes a comeback (its sacraments were
No. 14-‐‑2604 7
said to be chateaubriand and sherry), officials might have
good reason to question the sincerity of these beliefs. See,
e.g., Goff v. Graves, 362 F.3d 543 (8th Cir. 2004). But they do
not question the sincerity of Schlemm’s. On this record the
cost of accommodating Navajo inmates appears to be slight,
and the costs of accommodating other inmates’ requests
(should any be made) can be left to future litigation.
Schlemm exhausted his administrative remedies on a se-‐‑
cond request for accommodation. He wants to wear a multi-‐‑
colored headband or bandana while praying or meditating
in his cell and during group religious ceremonies such as the
sweat lodge. The prison allows solid white and solid black
religious headgear, but not any other color. The district
judge assumed that the prison’s rules impose a substantial
burden on Schlemm’s religious practices but concluded that
the prison’s restrictions are the least restrictive means to
achieve its compelling interest in preventing gang members
from identifying themselves. 2014 U.S. Dist. LEXIS 78601 at
*36–39. Before the Act’s adoption, we sustained a prison’s
ban on colored headgear. Young v. Lane, 922 F.2d 370, 376
(7th Cir. 1991). The district judge thought that curtailing
gang identification remains a compelling interest.
Once again we conclude that Wisconsin is not entitled to
summary judgment. It has asserted a need to suppress gang
identifications but has not offered evidence that Schlemm’s
proposed accommodation would undermine that interest.
The prison system does not contend that any given gang’s
members are unaware of which other prisoners belong to the
same gang. The ban on colored headwear apparently is de-‐‑
signed to reduce any gang’s adherents’ ability to advertise
their status to non-‐‑members. We say “reduce” rather than
8 No. 14-‐‑2604
“eliminate,” because Wisconsin does not compel inmates to
remove gang-‐‑related tattoos and has only limited ability to
police a ban on gang-‐‑related speech and hand signals. Be-‐‑
cause gang information may be widely available already, it
is difficult to depict as “compelling” a desire to cut out one
potential means of identification.
More than that: Schlemm’s headband is not a plausible
means of signaling gang membership, because he has of-‐‑
fered to limit its use to his cell (where few other inmates will
see it) or group religious ceremonies and to wear only colors
not associated with any gang in the prison. He asserts, with-‐‑
out contradiction from defendants, that red is the only gang-‐‑
signifying color at the prison where he is currently confined.
He proposes to wear a headband with earth tones (such as
blues and greens) that no one would understand as gang-‐‑
related. On this record, we must accept Schlemm’s submis-‐‑
sions, which if true show that the prison does not have any
interest, let alone a compelling one, in forbidding a head-‐‑
band that carries religious significance. The prison’s position
is slightly better with respect to group ceremonies than with
respect to in-‐‑cell use, but as long as the headband is free of
any gang significations it is hard to see a “compelling” need
to prohibit its use.
Wisconsin may be able to produce better evidence at a
trial or undermine Schlemm’s evidentiary submissions. Be-‐‑
cause resolving his claims may require evidence that a pris-‐‑
oner will find it hard to obtain and present, the district court
should seriously consider recruiting counsel to assist
Schlemm. See Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en
banc). And pending the final resolution of this litigation, the
court should issue a preliminary injunction entitling
No. 14-‐‑2604 9
Schlemm to wear a headband in his cell and during religious
ceremonies (provided that the headband does not contain
any red), and have a supply of venison for the Ghost Feast.
The judgment is affirmed to the extent it rejects some
claims as unexhausted and entitles two of the defendants to
dismissal because they were not involved in the contested
decisions. Otherwise the judgment is reversed, and the case
is remanded for further proceedings consistent with this
opinion.