Mark Hamilton v. Dora Schriro

___________

No. 94-3845
___________

Mark Juan Hamilton; *
*
Appellee, *
*
United States of America, *
*
Intervenor, *
*
v. *
*
Dora Schriro; Paul Delo; * Appeal from the United States
Jody Jackson; Bill Armontrout, * District Court for the Western
* District of Missouri.
Appellants, *
*
--------------------- *
*
Coalition for the Free Exercise *
of Religion; Koinonia House of *
Dupage County and Justice *
Fellowship, *
*
Amicus Curiae. *
___________

Submitted: September 13, 1995

Filed: January 12, 1996
___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
___________

BEAM, Circuit Judge.

Mark Juan Hamilton, an American Indian, initiated the present
action under the Civil Rights Act of 1871, 42 U.S.C. § 1983,
alleging that Missouri prison officials (prison officials) violated
his First Amendment right to free exercise of religion by requiring
him to cut his hair and by denying him access to a sweat lodge.
Applying the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §
2000bb, the district court enjoined prison officials from enforcing
a hair length regulation and ordered them to provide a weekly sweat
lodge ceremony. Prison officials appeal. Because the prison
regulation and policy at issue do not violate Hamilton's right to
free exercise of religion as protected by the First Amendment and
RFRA, we reverse.

I. BACKGROUND

Hamilton is incarcerated at the maximum security Potosi
Correctional Center (Potosi).1 The facility provides cross-
denominational religious facilities inside prison buildings.
American Indian inmates at Potosi are allowed to pray, to gather
together for regularly scheduled services, to meet with outside
spiritual leaders, and to obtain religious reading material from
the library. American Indians are also allowed to carry medicine
bags containing ceremonial items and have access to a ceremonial
pipe and kinnikinnik (a ceremonial "tobacco" consisting of willow,
sweet grass, sage and cedar). Potosi does not allow a sweat lodge,
sweat lodge ceremony, or fires on the premises. Potosi officials
enforce a Missouri Department of Corrections regulation that
prohibits hair length beyond the collar for male inmates. Hamilton
asserts that prison officials violated his First Amendment right to
free exercise of religion by denying him and other American Indian
prisoners access to a sweat lodge and by requiring their compliance
with the hair length regulation.

Hamilton brought the present action seeking injunctive relief,
damages and attorney fees. Hamilton's damage claims were dismissed
and are not before us on appeal. A hearing was held on March 29
and 30, 1994, on Hamilton's equitable demands.

1
Hamilton was incarcerated at the Jefferson City prison when
he initiated this action. Hamilton was subsequently transferred to
Potosi, where he was incarcerated at the time of the hearing in
1994.

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 A. Hair Length

Hamilton testified that American Indian males believe that
their hair is a gift from the Creator and is to be cut only when
someone close to them dies. Hamilton and other American Indian
inmates had long hair but were forced to cut it at the Potosi
prison. Hamilton testified that at one time his hair was four-feet
long.

Prison officials testified that long hair poses a threat to
prison safety and security. Stephen Long, the Assistant Director
of Adult Institutions for the Missouri Department of Corrections,
testified that inmates could conceal contraband, including
dangerous materials, in their long hair. Long stated that without
the hair length regulation, prison staff would be required to
perform more frequent searches of inmates, which could cause
conflicts between staff and inmates. Searching an inmate's long
hair would be difficult, especially if the inmate's long hair were
braided. Long also testified that the prison had tried to control
gangs by not allowing them to identify themselves through colors,
clothes, or hair carvings. He testified that exempting American
Indians from the hair length regulation could cause resentment by
the other inmates. He concluded that there was no alternative to
the hair length policy because only short hair can easily be
searched and remain free of contraband. Finally, Long noted that
long hair could also cause problems with inmate identification.

B. Sweat Lodge

The sweat lodge ceremony primarily takes place inside a dome-
shaped structure constructed of bent willow poles and covered with
hides, blankets, or tarps. Rocks heated in a separate fire are
placed in the center of the lodge. During the ceremony, several
tools are used including an axe (to split the firewood), a shovel
(to transfer the hot rocks from the fire to the sweat lodge) and

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deer antlers. Participants, who are nude, pour water on the hot
rocks to create steam, which causes them to sweat. Throughout the
ceremony, the lodge remains covered to retain the steam and to keep
out the light. The ceremony lasts between one and three hours.
When the lodge is not in use, the covers are removed but the willow
poles remain intact.

Hamilton testified that the sweat lodge ceremony is
instrumental to the practice of his religion because it purifies
the participant. Purity, according to Hamilton, is a prerequisite
to participating in other religious ceremonies, such as offering
prayers and smoking the sacred pipe. Hamilton also testified that
participants in these ceremonies must be seated outdoors on the
ground. Hamilton stated that if he could not have access to a
sweat lodge ceremony, he would not and could not practice any
aspect of his religion.

Hamilton introduced deposition testimony from prison
administrators in a few other states that their respective
facilities conduct sweat lodge ceremonies without any major
problems. These prison administrators conceded that they were
aware of some problems, including rumors of sexual impropriety
during the sweat lodge ceremony. No prisoner had filed a formal
complaint and the prison guards were unable to observe what
actually occurred inside the lodge.

The Potosi prison officials testified that the sweat lodge
requested by Hamilton raised concerns of prison safety and
security. Specifically, Long testified that the implements
requested by Hamilton to conduct the sweat lodge ceremony, such as
a shovel and an axe, could be used to assault other inmates and
prison guards. Long further testified that problems arise when
inmates in a maximum security prison, who are typically prone to
violence, congregate in groups.

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 Alan Luebbers, the Associate Superintendent at Potosi,
testified that inmates who work with tools are supervised by prison
guards. The secluded nature of the sweat lodge would make such
supervision impossible, thus providing the inmates with an
opportunity to assault other inmates, make weapons, use drugs, dig
a tunnel, and engage in homosexual activity. Normally, a prison
guard is posted at religious functions to observe the inmates and
ensure their safety.

Gary Tune, the Chaplain at the Potosi Correctional Center,
testified that if a sweat lodge were built it would be the only
facility devoted to a single religion. Assistant Director Long
also expressed concern over allowing Hamilton, an inmate, to decide
who may or may not use the sweat lodge. He concluded that
providing a sweat lodge may cause resentment among the inmates.

Jodie Jackson, the Chaplaincy Coordinator for the Missouri
Department of Corrections, testified that some American Indian
inmates at other Missouri state prisons practiced their religion
outdoors on the ground without the benefit of a sweat lodge. Those
prisoners offered prayers, observed special seasons, and smoked the
ceremonial pipe. Jackson testified that Hamilton had not requested
permission to practice his religion outdoors in a manner similar to
that at other institutions. Jackson stated, however, that the
Missouri Department of Corrections would consider such a request if
it were made.

The district court found "that the regulations and policies at
issue in this lawsuit with regard to plaintiff's practice of his
. . . religion substantially [burden] plaintiff's exercise of his
religion." Hamilton v. Schriro, 863 F. Supp. 1019, 1024 (W.D. Mo.
1994). The district court held that "[a]lthough safety, security
and cost concerns may be shown to be compelling governmental
interests in the prison setting, defendants have not shown that the
regulations and practices used by the Missouri Department of

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Corrections are the least restrictive means of furthering that
interest." Id. The district court enjoined enforcement of the
hair length regulation and ordered the prison officials to allow
Hamilton to practice his religion, including a weekly sweat lodge
ceremony. Id. at 1020. In a subsequent order, the district court
awarded attorney fees to Hamilton. The district court also stated
"that for 6 months after the sweat lodge becomes operational and
the ceremony is implemented, participation in the sweat lodge
ceremony shall be limited to those who are sincere adherents of the
Native American religion or to those who have been approved for
participation by majority vote of Native Americans who practice the
Native American religion and are scheduled to participate in the
ceremony." Hamilton v. Schriro, No. 91-4373, Amended Judgment
(W.D. Mo. Nov. 21, 1994).

On appeal, the prison officials contend that: (1) Hamilton is
not sincere in his adherence to the American Indian religion; (2)
the prison regulations and policies do not substantially burden
Hamilton's free exercise of his religious beliefs; and (3) the
limitations imposed on hair length and sweat lodges are the least
restrictive means of furthering the compelling interest of
maintaining prison safety and security. The prison officials also
assert that under any circumstances, the condition imposed by the
district court on who may participate in the sweat lodge ceremony
is unprecedented and unreasonable.

II. DISCUSSION

As with any section 1983 action, we must determine: (1)
whether the conduct complained of was committed by a person acting
under color of state law; and (2) whether this conduct deprived a
person of a right, privilege, or immunity secured by the
Constitution or laws of the United States. 42 U.S.C. § 1983;
Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994). Because the
prison officials were acting under color of state law, the first

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requirement of this two-part test is satisfied. Gunter, 32 F.3d at
1259.

Turning to the second requirement, Hamilton's section 1983
action was originally based on the claim that the prison officials
deprived him of his First Amendment right to the free exercise of
his religion.3 After this action was initiated, however, Congress
enacted the Religious Freedom Restoration Act of 1993 (RFRA), 42
U.S.C. § 2000bb. RFRA applies retroactively. See Brown-El v.
Harris, 26 F.3d 68, 69 (8th Cir. 1994). Therefore, Hamilton's
section 1983 action now encompasses two separate theories: (1)
deprivation of his constitutionally protected First Amendment right
to the free exercise of his religion; and (2) deprivation of his
statutorily protected right, under RFRA, to the free exercise of
his religion. See generally Goodall v. Stafford County Sch. Bd.,
60 F.3d 168, 170 (4th Cir.), cert. denied, 64 U.S.L.W. 3333 (Jan.
8, 1996) (No. 95-666).4 We hold that Hamilton has failed to
establish a deprivation under either his constitutional or
statutory right to free exercise of religion.5 Because we hold
that Hamilton's section 1983 action fails under either

3
The First Amendment provides in pertinent part: "Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; . . . ." U.S. Const.
amend. I.
4
Some courts and commentators apparently interpret RFRA as
legislatively creating a compelling interest test that is to be
applied in all free exercise cases, thereby completely supplanting
prior constitutional standards. Even if Congress has the authority
to mandate such an approach, Hamilton's claim would fail under the
test set out in RFRA. See infra Part II.B.
5
Although the district court resolved the present case only
under RFRA, we think it is necessary to address the constitutional
claim because the district court suggested that it would have found
for Hamilton even under the constitutional analysis. Hamilton, 863
F. Supp. at 1022.

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constitutional or RFRA analysis, we need not and do not consider
the constitutionality of RFRA.6

A. Constitutional Analysis

Prison inmates "do not forfeit all constitutional protections
by reason of their conviction and confinement in prison." Bell v.
Wolfish, 441 U.S. 520, 545 (1979). Moreover, "federal courts must
take cognizance of the valid constitutional claims of prison
inmates," Turner v. Safley, 482 U.S. 78, 84 (1987), which include
actions based on free exercise rights protected by the First
Amendment. See Pell v. Procunier, 417 U.S. 817, 822 (1974).

However, "`[l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal
system.'" Jones v. North Carolina Prisoners' Labor Union, Inc.,
433 U.S. 119, 125 (1977) (quoting Price v. Johnston, 334 U.S. 266,
285 (1948)). "The fact of confinement and the needs of the penal
institution impose limitations on constitutional rights, including
those derived from the First Amendment, which are implicit in
incarceration." Jones, 433 U.S. at 125. Furthermore, "`issues of
prison management are, both by reason of separation of powers and
highly practical considerations of judicial competence, peculiarly
ill-suited to judicial resolution, and . . . accordingly, courts
should be loath to substitute their judgment for that of prison

6
See, e.g., United States v. Congress of Indus. Org., 335 U.S.
106, 125 (1948) (Frankfurter, J., concurring) ("`No questions can
be brought before a judicial tribunal of greater delicacy than
those which involve the constitutionality of a legislative
act. . . . [I]f the case may be determined on other points, a just
respect for the legislature requires, that the obligation of its
laws should not be unnecessarily and wantonly assailed.' Ex parte
Randolph, 20 Fed. Cas. No. 11,558 at 254, 2 Brock. 447, 478-79
(C.C.D. Va. 1833)."). Moreover, if RFRA were held to be
unconstitutional in the future, that determination would not affect
the validity of our holding in the present case.

-8-
officials and administrators.'" Iron Eyes v. Henry, 907 F.2d 810,
812 (8th Cir. 1990) (quoting Pitts v. Thornburgh, 866 F.2d 1450,
1453 (D.C. Cir. 1989)).

An inmate who challenges the constitutionality of a prison
regulation or policy that limits the practice of religion must
first establish that it infringes upon a sincerely held religious
belief. Hill v. Blackwell, 774 F.2d 338, 342-43, (8th Cir. 1985).
In the present case, we assume that Hamilton's religious beliefs
are sincerely held. See Iron Eyes, 907 F.2d at 813 (determining
the sincerity of a person's religious belief "is factual in nature
and thus is subject to the clearly erroneous standard of review").

A prisoner's free exercise claim is "judged under a
`reasonableness' test less restrictive than that ordinarily applied
to alleged infringements of fundamental constitutional rights."
O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); see also
Turner, 482 U.S. at 87-91. In Turner, the Supreme Court
articulated the applicable constitutional test in the context of
prison regulations: "when a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests." 482 U.S. at 89.
Prison security is one of these penological interests. O'Lone, 482
U.S. at 348. Several factors are to be considered when evaluating
the reasonableness of a prison regulation: (1) whether there is a
valid, rational connection between the regulation and the asserted
governmental interest; (2) whether alternative means for exercising
the right remain open to the prisoner; (3) the impact of the
regulation on prison staff, other inmates, and the allocation of
prison resources; and (4) the availability of ready alternatives to
the regulation. Turner, 482 U.S. at 89-91.

-9-
 1. Hair Length Regulation

We have previously applied the Turner factors to an American
Indian prisoner's claim that hair length regulations violated his
constitutionally guaranteed right to free exercise of religion and
concluded that such a regulation passes constitutional muster.
Iron Eyes, 907 F.2d at 813-16. Our prior decisions make it
abundantly clear that Hamilton's constitutional challenge to the
prison hair length regulation must fail. Id.; see also Sours v.
Long, 978 F.2d 1086 (8th Cir. 1992) (per curiam); Kemp v. Moore,
946 F.2d 588 (8th Cir. 1991) (per curiam), cert. denied, 504 U.S.
917 (1992). Therefore, we conclude that under the Turner criteria,
Hamilton's free exercise right is outweighed by the validity of the
regulation. See Iron Eyes, 907 F.2d at 816.

2. Sweat Lodge

As with prison hair length regulations, we have previously
resolved the issue of whether a prison official's denial of access
to a sweat lodge violates an American Indian inmate's free exercise
right under the First Amendment. Kemp, 946 F.2d 588 (affirming the
district court's decision denying a prisoner's request for an order
to require the construction of a sweat lodge). In a recent case,
however, we acknowledged that such a determination "depends upon
whether the restriction imposed by prison authorities bears a
rational relationship to the furtherance of a legitimate
penological interest." Thomas v. Gunter, 32 F.3d 1258, 1260 (8th
Cir. 1994) (concluding that the district court improperly granted
summary judgment for prison authorities because their justification
for denying the inmate sweat lodge access was based on "security-
related limitations," which did not provide a sufficiently specific
basis to determine if some rational relationship existed between
the denial of access and security). Applying the Turner factors to
the present case, we conclude that the prison officials' denial of

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Hamilton's access to a sweat lodge was rationally related to the
legitimate penological interests of safety and security at Potosi.

First, prohibiting Hamilton and other inmates from meeting in
a completely enclosed area is rationally connected to preventing
the type of harm prison officials fear would occur in the sweat
lodge. Second, alternative means remain open to Hamilton for
exercising his religion, including carrying a medicine bag
containing ceremonial items, having access to a ceremonial pipe and
kinnikinnik, and praying with other American Indian inmates.
Third, accommodating Hamilton's request for a sweat lodge would
have an adverse impact on prison staff, other inmates, and prison
resources due to the risk of assaulting participants in the
ceremony, as well as possible resentment resulting from the
erection of an exclusive religious facility. Finally, Hamilton has
failed to "point to an alternative that fully accommodates the
prisoner's rights at de minimis cost to valid penological
interests." Turner, 482 U.S. at 91.

Therefore, we hold that the constitutional claim underlying
Hamilton's section 1983 action fails. Our prior decisions make it
clear that enforcing prison hair length regulations, such as the
one at issue in the present case, and prohibiting sweat lodge
ceremonies do not violate an inmate's constitutional right to free
exercise of religion. Additionally, the applicable constitutional
analysis articulated by the Supreme Court in Turner supports our
conclusion that the prison officials' failure to provide Hamilton
with a sweat lodge does not violate his right to free exercise of
religion.

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 B. RFRA Analysis

In 1993, Congress enacted RFRA, which statutorily created a
compelling interest-least restrictive means test7 to be applied to
all cases where free exercise of religion is substantially
burdened. 42 U.S.C. § 2000bb(b)(1). The stated purpose of
enacting RFRA was "to restore the compelling interest test as set
forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.
Yoder, 406 U.S. 205 (1972) and to guarantee its application in all
cases where free exercise of religion is substantially burdened."
42 U.S.C. § 2000bb(b)(1).8 In addition, Congress intended "to

7
The statute provides in relevant part:

(a) In general

Government shall not substantially burden a person's
exercise of religion even if the burden results from a
rule of general applicability, except as provided in
subsection (b) of this section.

(b) Exception

Government may substantially burden a person's
exercise of religion only if it demonstrates that
application of the burden to the 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. 2000bb-1(a),(b).
8
Congress enacted RFRA in response the Supreme Court's holding
in Employment Div., Dep't of Human Resources of Oregon v. Smith,
494 U.S. 872, 886 n.3 (1990), that "generally applicable, religion-
neutral laws that have the effect of burdening a particular
religious practice need not be justified by a compelling
governmental interest." 42 U.S.C. § 2000bb(a)(4) (finding that in
Smith, "the Supreme Court virtually eliminated the requirement that
the government justify burdens on religious exercise imposed by
laws neutral toward religion").

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restore traditional protection afforded to prisoners' claims prior
to O'Lone." S. Rep. No. 111, 103d Cong., 1st Sess. (1993),
reprinted in 1993 U.S.C.C.A.N. 1892, 1899 (Senate Report). See
also 139 Cong. Rec. S14468 (daily ed. Oct. 27, 1993) (recording the
Senate vote rejecting a proposed amendment that would have excluded
prisoners' free exercise claims from the compelling interest
standard in RFRA). Congress intended for RFRA "to provide a claim
or defense to persons whose religious exercise is substantially
burdened by government." 42 U.S.C. § 2000bb(b)(2).

For purposes of our analysis, we assume that the regulations
and policies at issue in the present case substantially burden
Hamilton's exercise of his religion. Hamilton, 863 F. Supp. at
1024. The district court acknowledged that "safety, security and
cost concerns may be shown to be compelling governmental interests
in the prison setting." Id. See also Pell, 417 U.S. at 823.
Under RFRA, the prison officials bear the burden of demonstrating
that the regulation is the least restrictive means of achieving a
compelling interest. 42 U.S.C. § 2000bb-1(b). Therefore, the
primary question before us is whether the district court erred in
holding that the prison policies and regulations at issue were not
the least restrictive means of achieving the compelling interest of
prison safety and security.

The district court's conclusion that the prison officials
failed to satisfy the statutorily imposed test under RFRA is a
question of law which is subject to de novo review. While the
district court's findings of fact are subject to a clearly
erroneous standard of review, the ultimate conclusion as to whether
the regulation deprives Hamilton of his free exercise right is a
question of law subject to de novo review. See Hill, 774 F.2d at
343. We find that applying the least restrictive means prong of
RFRA also raises an issue of statutory construction, which is
subject to de novo review. See generally Department of Social
Serv. v. Bowen, 804 F.2d 1035, 1037 (8th Cir. 1986).

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 Pre-O'Lone case law and RFRA's legislative history indicate
that the applicable test must be construed in the prison setting,
giving due deference to the expert judgment of prison
administrators. See generally Abbott Cooper, Comment, Dam the RFRA
at the Prison Gate: The Religious Freedom Restoration Act's Impact
on Correctional Litigation, 56 Mont. L. Rev. 325 (1995). The
legislative history of RFRA also shows that while Congress intended
for the same compelling interest test in the statute to apply to
prisoners as well as non-prisoners, the outcome of the analysis
would depend upon the context. It was noted in the Senate Report
that:

The Religious Freedom Restoration Act would establish one
standard for testing claims of Government infringement on
religious practices. This single test, however, should
be interpreted with regard to the relevant circumstances
in each case.

Senate Report at 9, 1993 U.S.C.C.A.N. at 1898. Thus, while
Congress intended to revoke O'Lone, it did not intend to impose a
more rigorous standard than the one that was applied prior to
O'Lone. Id. Therefore, pre-O'Lone case law provides useful
guidance on how to interpret the test in RFRA and how to resolve
the present case.

The Supreme Court has long recognized the need to defer to the
judgment of prison administrators when evaluating the validity of
a prison regulation that impinges an inmate's First Amendment
rights. See, e.g., Procunier v. Martinez, 416 U.S. 396, 404-05
(1974). In Martinez, the Court held, among other things, that a
prison mail censorship regulation was invalid. Id. at 415-16.
Nevertheless, the Supreme Court noted: "[C]ourts are ill equipped
to deal with the increasingly urgent problems of prison
administration and reform. . . . Moreover, where state penal
institutions are involved, federal courts have a further reason for
deference to the appropriate prison authorities." Id. at 405. In

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Jones, 433 U.S. at 125, the Court upheld prison regulations that
prohibited meetings of prisoners' labor unions, solicitations to
join the union, and bulk mailings concerning the union from outside
sources against a First Amendment challenge, noting that the lower
court "got off on the wrong foot . . . by not giving appropriate
deference to the decisions of prison administrators and appropriate
recognition to the peculiar and restrictive circumstances of penal
confinement." In Pell, the Court rejected the inmates' First
Amendment challenge to the ban on media interviews, noting that
judgments regarding prison security "are peculiarly within the
province and professional expertise of corrections officials, and,
in the absence of substantial evidence in the record to indicate
that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert
judgment in such matters." 417 U.S. at 827 (emphasis added); see
also Bell v. Wolfish, 441 U.S. 520 (1979). Therefore, even prior
to the reasonableness test expressly set out in O'Lone, the Supreme
Court afforded deference to the judgment of prison administrators
when evaluating the validity of a prison regulation. See
Thornburgh v. Abbott, 490 U.S. 401, 411 (1989) (in adopting the
reasonableness test set out in Turner and overruling Martinez, the
Court stated: "We do not believe that Martinez should, or need, be
read as subjecting the decisions of prison officials to a strict
`least restrictive means' test."); Turner, 482 U.S. at 87.9

We have applied the pre-O'Lone Supreme Court test in the
context of a prisoner's First Amendment right to the free exercise
of religion. See Hill, 774 F.2d at 340-43; Rogers v. Scurr, 676
F.2d 1211, 1215 (8th Cir. 1982) ("[W]hen the maintenance of

9
Another circuit was also "persuaded . . . by the reasoning of
Wolfish, Pell, and Martinez that [the pre-O'Lone test required]
prisoner free exercise claims [to] be judged in accordance with a
standard different from that applied outside the prison." Madyun
v. Franzen, 704 F.2d 954, 959 (7th Cir.), cert. denied, 464 U.S.
996 (1983).

-15-
institutional security is at issue, prison officials ordinarily
must have wide latitude within which to make appropriate
limitations."). Thus, prior to O'Lone, we applied a test that
required balancing the need for a particular regulation and the
invasion of religious freedom that the restriction caused. Hill,
774 F.2d at 342 (citing Pell, 417 U.S. at 822-23); see also Murphy
v. Missouri Dep't of Corrections, 814 F.2d 1252, 1256 (8th Cir.
1987). The Senate Report shows that RFRA was intended to restore
this balancing test:

Prior to O'Lone, courts used a balancing test in cases
where an inmate's free exercise rights were burdened by
an institutional regulation; only regulations based upon
penological concerns of the "highest order" could
outweigh an inmate's claims.

Senate Report at 9-10, 1993 U.S.C.C.A.N. at 1899.10 Prison safety
and security are penological concerns of the highest order.

This balancing test mandates that limitations on free exercise
rights "be no greater than necessary to protect the governmental
interest involved[.]" Scurr, 676 F.2d at 1215 (citing Procunier v.
Martinez, 416 U.S. 396, 413 (1974)). In the prison context,
however, prison officials ordinarily must have wide latitude within
which to make appropriate limitations to maintain institutional
security. Id. This is because "central to all other corrections
goals is the institutional consideration of internal security
within the corrections facilities themselves." Pell, 417 U.S. at
823.

10
Although there were several versions of the applicable test
prior to O'Lone, see generally Mary A. Schnabel, Comment, The
Religious Freedom Restoration Act: A Prison's Dilemma, 29
Willamette L. Rev. 323 (1993), we look to Supreme Court precedent,
RFRA's legislative history, and our own case law for guidance.

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 We find the "no greater than necessary" requirement to be
functionally synonymous with the "least restrictive means" prong of
the RFRA test when applied in the prison context. Because we are
faced with a prison case where the maintenance of institutional
security is at issue, we must give the prison officials wide
latitude within which to make appropriate limitations.

Our interpretation and application of the least restrictive
means prong of the RFRA test is consistent with the statute's
legislative history. Significantly, the legislative history of
RFRA recognizes the necessity for courts to continue deferring to
the judgment of prison officials.

The committee [on the Judiciary] does not intend the act
[RFRA] to impose a standard that would exacerbate the
difficult and complex challenges of operating the
Nation's prisons and jails in a safe and secure manner.
Accordingly, the committee expects that the courts will
continue the tradition of giving due deference to the
experience and expertise of prison and jail
administrators in establishing necessary regulations and
procedures to maintain good order, security and
discipline, consistent with consideration of costs and
limited resources.

Senate Report at 10, 1993 U.S.C.C.A.N. at 1899-1900 (footnote
omitted). In fact, the Senate rejected a proposed amendment that
would have excluded prisoners from the scope of RFRA, finding that
such an express exclusion was not necessary because courts had been
extremely deferential to prison authorities. See 139 Cong. Rec.
S14467 (daily ed. Oct. 27, 1993). Senator Danforth concluded that
"RFRA mandates a uniform test, not a uniform result." Id.

Therefore, both pre-O'Lone Supreme Court case law and the
relevant legislative history indicate that a court applying RFRA
must give due deference to the expertise of prison officials in
establishing regulations to maintain prison safety and security,

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even when the court applies a "heightened" standard of review.11
We hold that the prison officials in the present case demonstrated
that the prison regulation and policy at issue are the least
restrictive means of maintaining the prison's compelling interest
in institutional safety and security.

1. Hair Length Regulation

As earlier noted, prison officials testified that prison
security requires them to prevent inmates from concealing
contraband in their long hair and identifying with a particular
gang. The prison officials also testified that preventing male
inmates from growing their hair longer than collar length is the
least restrictive way to achieve that goal because no viable
alternatives exist.

Our prior case law supports the conclusion that the prison
officials may enforce a hair length regulation such as the one at
issue in the present case. Cf. Iron Eyes, 907 F.2d at 815-16
(applying the reasonableness test set out in O'Lone to a prison
hair length regulation we concluded that "[a]ny other solution
would come at more than a de minimis cost to valid penological
interests").12 In an analogous situation, we held, under the pre-

11
Of course, this is not to say that a reviewing court must
accept the justification articulated by prison authorities in all
cases. In order to satisfy their burden under RFRA, prison
authorities must do more than offer conclusory statements and post
hoc rationalizations for their conduct. Senate Report at 10, 1993
U.S.C.C.A.N. at 1900.
12
Hamilton argues that our prior decision in Teterud v. Burns,
522 F.2d 357 (8th Cir. 1975) is dispositive of the hair length
regulation. Hamilton's reliance on Teterud is misplaced. In
Teterud, we noted that "the only reason advanced in support of the
regulation was the Warden's opinion, unsupported by empirical
proof, that the hair net and reidentification requirements
necessitated by allowing long hair would create a `hassle' between
correction officers and inmates." Id. at 361; see also Hill, 774
F.2d at 341-42 (distinguishing Teterud on the basis that "the

-18-
O'Lone standard, that prison officials could prohibit Muslim
inmates from wearing religious caps and robes outside prayer
meetings because such attire made it too easy to conceal
contraband. Scurr, 676 F.2d at 1215. We stated that the prison
authorities' explanation was "eminently reasonable, particularly in
view of the fact that operating personnel is limited." Id.

It is more than merely "eminently reasonable" for a maximum
security prison to prohibit inmates from having long hair in which
they could conceal contraband and weapons. It is compelling.
Further, it is important for prison administrators to prevent
inmates from identifying with particular gangs through their hair
style. The safety and security concerns expressed by prison
officials were based on their collective experience of
administering correctional facilities. These are valid and weighty
concerns. Moreover, there is no viable less restrictive means of
addressing these concerns.13 Therefore, we conclude that the

[W]arden's justification for the regulation was not founded on a
legitimate concern for prison security, and there was no need to
decide whether the prison officials had exaggerated their response
to a legitimate security consideration"). In the present case, the
hair length regulation was founded on the legitimate concern that
prison safety would be compromised by inmates concealing contraband
in their long hair or identifying with a particular gang.
13
Although no other circuit has yet decided whether RFRA
precludes prison hair length regulations, several district courts
have upheld such regulations against RFRA challenges. Phipps v.
Parker, 879 F. Supp. 734, 736 (W.D. Ky. 1995) (holding that
"cutting inmates' hair short appears to be the only plausible way
to meet these safety concerns, and thus satisfies the requirement
that the least restrictive means available be used to achieve the
compelling interests"); Diaz v. Collins, 872 F. Supp. 353, 359
(E.D. Tex. 1994) ("The potential of hiding contraband in long hair
cannot be vitiated except through a regulation that hair be kept
short."). In Phipps, the district court recognized that "[w]hile
other methods might be used, such as constantly searching inmates
for contraband, such means would be impractical and just as likely
to burden constitutional interests." 879 F. Supp. at 736. These
cases support our conclusion that the district court in the present
case failed to give due deference to the expert judgment of prison
officials who testified that no viable alternative existed to the

-19-
district court erred in its interpretation and application of the
least restrictive means prong of the compelling interest test in
RFRA. The district court failed to give due deference to the
prison officials' testimony that long hair presented a risk to
prison safety and security and that no viable less restrictive
means of achieving that goal existed.

2. Sweat Lodge

The prison officials asserted that to maintain prison security
they must prevent inmates from assaulting each other, escaping,
using drugs, and engaging in homosexual conduct. The prison
officials testified that a traditional American Indian sweat lodge
would provide inmates with an opportunity to engage in these
activities without being seen by prison guards. Moreover, the
prison officials testified that providing specific inmates with
their own exclusive religious facility would appear to other
inmates as an act of favoritism and would lead to resentment.
According to prison officials, prohibition of the sweat lodge
ceremony is the least restrictive means of ensuring prison safety
and security because Hamilton has refused to consider any type of
modified ceremony where participants would be allowed to pray
outside on the ground without the opaque covering.14

hair length regulation.
14
To date, no circuit has decided whether RFRA protects an
American Indian's free exercise right to the extent that a prison
must provide a sweat lodge. In Werner v. McCotter, 49 F.3d 1476,
1480 (10th Cir. 1995), cert. denied, 115 S. Ct. 2625 (1995), the
court acknowledged that an American Indian prisoner had made out a
prima facie case under RFRA, but remanded the case to the district
court because the record was almost devoid of the facts necessary
to allow the court to balance the governmental interest at stake
against the restrictions placed on the inmate.

-20-
 Although RFRA places the burden of production and persuasion
on the prison officials,15 once the government provides this
evidence, the prisoner must demonstrate what, if any, less
restrictive means remain unexplored. It would be a herculean
burden to require prison administrators to refute every conceivable
option in order to satisfy the least restrictive means prong of
RFRA. Moreover, such an onerous requirement would be
irreconcilable with the well-established principle, recognized by
the Supreme Court and RFRA's legislative history, that prison
administrators must be accorded due deference in creating
regulations and policies directed at the maintenance of prison
safety and security. See O'Lone, 482 U.S. at 350.

Prison officials testified that they would consider a proposal
to allow American Indian inmates to meet outdoors on the ground to
pray and conduct the pipe ceremony. According to prison officials,
American Indian inmates at other Missouri prisons are allowed to
participate in various ceremonies outdoors on the ground without a
sweat lodge. This type of modified ceremony would eliminate a
primary concern of prison officials, namely the inability of prison
guards to observe the inmates in the lodge. Hamilton testified,
however, that he would not and could not practice his religion in
any capacity if he were not allowed to participate in a sweat lodge
ceremony.

This case presents the unusual situation where the government
has satisfied the least restrictive means prong by demonstrating
that other less restrictive alternatives are not acceptable to the
plaintiff. See Cheema v. Thompson, 67 F.3d 883, 894 (9th Cir.
1995) (Wiggins, J., dissenting) (noting that the case presented a
unique question of least restrictive means analysis because the

15
"As used in [RFRA] . . . the term `demonstrates' means meets
the burdens of going forward with the evidence and of
persuasion[.]" 42 U.S.C. § 2000bb-2(3).

-21-
plaintiffs have taken an all-or-nothing position). Hamilton's own
all-or-nothing position supports the prison officials' contention
that an outright prohibition against a sweat lodge ceremony is the
least restrictive means of achieving the compelling interests of
prison safety and security in this case.

Hamilton testified that the sweat lodge ceremony could
probably be conducted without the axe. Hamilton also "invited"
prison guards to participate in the sweat lodge ceremony with the
prisoners. Neither of Hamilton's suggestions, however, adequately
addresses the prison officials' concerns. First, the axe is only
one of several potentially dangerous instruments used in the sweat
lodge ceremony. Thus, conducting the sweat lodge ceremony without
the axe would not obviate the risk that the other instruments
(e.g., deer antlers) would be used as a weapon. Second, the
physical characteristics of the sweat lodge (i.e., low doorway and
no light) would create a serious risk to prison guards searching
the lodge during a ceremony. Thus, the prison officials' concern
that the participants could engage in prohibited conduct while
inside the opaque lodge are not alleviated.

There may very well be less restrictive means of achieving
prison safety and security than completely prohibiting sweat lodge
ceremonies. Justice Blackmun recognized the dilemma implicit in a
least restrictive means analysis: "A judge would be unimaginative
indeed if he could not come up with something a little less
`drastic' or a little less `restrictive' in almost any situation,
and thereby enable himself to vote to strike legislation down."
Illinois State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 188-89 (1979) (Blackmun, J., concurring). Hamilton has
failed to enlighten us as to any viable less restrictive means that
may remain available to the prison officials short of prohibiting

-22-
the sweat lodge ceremony entirely. Accordingly, we hold that the
prison officials have satisfied their burden under RFRA.16

III. CONCLUSION

In sum, we hold that the district court failed to give due
deference to prison officials who testified as to the necessity of
the prison hair length regulation and prohibition against a sweat
lodge to maintain prison safety and security. Because the least
restrictive means prong of the compelling interest test in RFRA
requires no more than the pre-O'Lone cases required, the prison
officials' justifications for the hair length regulation and
prohibition of a sweat lodge ceremony were sufficient. On these
facts we conclude that the prison regulations at issue do not

16
A remand to the district court is not necessary in this case
because the record contains sufficient factual support for our
conclusion that the prison officials have satisfied their burden
under RFRA. We recognize that additional evidence was placed in
the record as part of Hamilton's post-judgment motion to preserve
the status quo. However, we rely only on the evidence that was
before the district court to reach our conclusion.

The district court relied on the deposition testimony of
prison administrators from a few other states that they were
conducting sweat lodge ceremonies without the problems envisioned
by the Missouri prison officials. See Hamilton, 863 F. Supp. at
1023. This deposition testimony, however, also revealed that the
prison administrators were aware of various problems with the sweat
lodges, including allegations of sexual improprieties occurring in
the lodges. Prison administrators stated that no formal charges
had been filed due to the reluctance of prisoners to testify and
the fact that no prison guard could observe the participants while
they were in the lodge.

The district court acknowledged that "Missouri corrections
personnel relied on their experience in corrections work and on a
belief that such practices would interfere with the safety and
security of the institution." Id. Although prison policies from
other jurisdictions provide some evidence as to the feasibility of
implementing a less restrictive means of achieving prison safety
and security, it does not outweigh the deference owed to the expert
judgment of prison officials who are infinitely more familiar with
their own institutions than outside observers.

-23-
violate Hamilton's right to the free exercise of religion as
protected by the Constitution and RFRA. Our decision does not,
however, foreclose the possibility of a successful sweat lodge
claim under different circumstances. Furthermore, we encourage
prisons to accommodate the religious needs of inmates, including
American Indian inmates, by providing facilities beyond the bare
minimum. Accordingly, the district court's decision and award of
attorney fees is reversed. All pending motions before this court
are overruled.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent from Part II(B)(1) of the majority
opinion insofar as it holds that Tetrud v. Burns, 522 F.2d 357 (8th
Cir. 1975) (Tetrud), is not dispositive of the hair length
regulation issue under the compelling interest test. See slip op.
at 18 n.12. Accordingly, if I were of the opinion that the
Religious Freedom Restoration Act (RFRA) is constitutional, then I
would affirm the district court's holding that the hair length
regulation violates federal law. However, for the reasons
discussed below, I believe that RFRA is unconstitutional.
Therefore, I would vacate the judgment of the district court and
remand the case for further proceedings.

I.

Hamilton is an inmate at the Potosi Correctional Center
(Potosi), a maximum security facility of the Missouri Department of
Corrections. He filed this civil rights lawsuit after
unsuccessfully pursuing prison grievance procedures. He claims
that prison officials (hereinafter defendants) violated his First
Amendment right to freely exercise his Native American religion.
Hamilton, whose mother was of Choctaw descent, primarily contended
that a prison grooming regulation prevented him from growing long

-24-
hair and that defendants denied his request to build a sweat lodge
in which to conduct religious ceremonies.

At the two-day evidentiary hearing held before the magistrate
judge in March 1994, Hamilton submitted the deposition testimony of
a number of prison officials from states other than Missouri.
These officials testified as to their experience with sweat lodges
and hair length regulation at their respective facilities. An
assistant superintendent from a facility in Springfield, South
Dakota, testified that they have had a sweat lodge since 1985 and
that there have been no security problems or claims of sexual
misconduct. Prison officials from Wisconsin and Iowa gave similar
testimony as to their facilities' experience with sweat lodges.
With regard to hair length, prison officials from Iowa and South
Dakota testified that their states' penitentiaries have abandoned
hair length regulation. Hamilton also submitted the deposition
testimony of Chief Mato Wanagi Baldwin of the Menicongulakota
Tribe. Chief Baldwin testified about the religious significance of
the sweat lodge ceremony and the growing of long hair. His
testimony corroborated Hamilton's claim that a sweat lodge ceremony
must be outside on the ground and that Native Americans
traditionally wear their hair long and braided.

Following the evidentiary hearing, the magistrate judge issued
a written report and recommendation. Hamilton v. Schriro, No. 91-
373-CV-C-5 (W.D. Mo. Apr. 13, 1994) (Report and Recommendation).
In his evaluation of Hamilton's claims, the magistrate judge
expressly relied on RFRA, 42 U.S.C. § 2000bb-bb4, which had become
effective in November 1993, a few months before the hearing on
Hamilton's equitable claims. The magistrate judge specifically
found that Hamilton's religious beliefs were sincerely held and
that the sweat lodge ceremony was an "essential component" of his
Native American religion. Report and Recommendation at 4. The
magistrate judge found defendants' denial of Hamilton's requests
unreasonable because they did not

-25-
 (1) make any inquiry of problems encountered by personnel
at institutions which allow the practice of Native
American religions; (2) contact any Native American
religious leader to determine the feasibility of
[Hamilton's] requests, or to determine whether other
acceptable alternatives existed; or (3) do a cost
analysis or make inquiry regarding the availability of
funds or the amount of funds that would be required.

Id. at 5. In essence, the magistrate judge concluded that
defendants "made absolutely no effort to determine whether the
religious practices could be accommodated while still taking care
of safety and security concerns." Id. The magistrate judge also
found that the concerns about the smuggling of contraband and
inmate identification with regard to hair length were overstated.
Id. at 6. Accordingly, the magistrate judge recommended that
defendants be enjoined from enforcing hair length regulations
against Hamilton and that "accommodations be made in accordance
with the Religious Freedom Restoration Act to allow [Hamilton] to
practice his Native American religion, including the right to have
a weekly sweat lodge ceremony." Id. at 7.

The district court adopted the recommendation but modified it
to require the parties to seek a compromise on the precise way to
effectuate the remedy with regard to the sweat lodge ceremonies.
Hamilton v. Schriro, 863 F. Supp. 1019 (W.D. Mo. 1994) (publishing
the full text of the magistrate judge's report and recommendation).
However, the parties were unable to resolve all of the issues. The
parties could not agree on the location of the sweat lodge, and
defendants wanted the sweat lodge to be available to all inmates,
in accordance with their policy toward other religious services.
The case was thus referred back to the magistrate judge who
recommended a possible location for the sweat lodge and also
recommended that

for six (6) months after the sweat lodge becomes
operational and the ceremony is implemented,
participation in the sweat lodge ceremony be limited to

-26-
 those who are sincere adherents of the Native American
religion or to those who have been approved for
participation by majority vote of Native Americans who
practice the Native American religion and are scheduled
to participate in the ceremony.

Slip op. at 2 (Sept. 8, 1994) (Report and Recommendation II). The
district court adopted the recommendation on eligibility for
participation in the sweat lodge ceremony verbatim and the other
recommendations with only minor modifications. Id. (Oct. 21,
1994).

II.

Our court first heard oral argument in this case in May 1995.
At that time, defendants did not challenge the constitutionality of
RFRA. However, because of some concern over the district court's
treatment of the issue, we asked the parties to submit supplemental
briefs. Defendants, in their supplemental brief, have argued that
RFRA is unconstitutional. Shortly after the oral argument, the
United States (the government) moved to intervene as plaintiff-
intervenor and also requested supplemental oral argument. We
granted the government's motion to intervene and heard supplemental
argument from the parties in September 1995.

A.

As a threshold matter, I discuss my reasons for reaching the
constitutionality of RFRA. Although neither party initially raised
the constitutional issue on appeal, defendants did raise the issue
before the magistrate judge. In the report and recommendation
concluding that Hamilton was entitled to injunctive relief, the
magistrate judge discussed the constitutionality of RFRA as
follows:

The court is cognizant of defendants' suggestion . . .
that the constitutionality of RFRA has not yet been

-27-
 determined. Section 5 of the fourteenth amendment
encompasses the liberties guaranteed by the first
amendment. [citation omitted] It follows, therefore,
that Congress may enact laws enforcing the provisions of
the first amendment. In the absence of compelling
arguments or case law indicating otherwise, this court
will not further address this issue.

Report and Recommendation at 7. The district court's order
adopting the Report and Recommendation did not address the
constitutional question. Although brief, the magistrate judge's
treatment of the issue clearly reaches the conclusion that § 5 of
the Fourteenth Amendment provides Congress with a constitutional
basis for the enactment of RFRA.

Although it appears the issue of RFRA's constitutionality
received limited consideration in the district court, we have
previously held that "[i]t is not unfair to a trial court for an
appellate court to decide a question that the trial court actually
reached in its opinion, notwithstanding the fact that it was not
argued by the parties." Struempler v. Bowen, 822 F.2d 40, 42 (8th
Cir. 1987). Moreover, even where the district court has not
considered an issue, "[t]he matter of what questions may be taken
up and resolved for the first time on appeal is one left primarily
to the discretion of the courts of appeals, to be exercised on the
facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121
(1976). In the present case, the factual record has been fully
developed, and the magistrate judge, although admittedly in
passing, expressly upheld the constitutionality of RFRA. Under
these circumstances, I would not refrain from consideration of the
constitutional issue.

B.

Long-standing principles teach us to be reluctant to consider
the constitutionality of a federal statute. See Zobrest v.
Catalina School Dist., 113 S. Ct. 2462, 2465-66 (1993). It is

-28-
well-settled that an act of Congress is to be presumed
constitutional and that doubts about the construction of a federal
statute are to be resolved, if fairly possible, in favor of its
constitutionality. Id. With these principles of statutory
construction in mind, I note that the district court concluded that
Hamilton was entitled to equitable relief because defendants failed
to satisfy their burden of demonstrating that their infringement
upon Hamilton's religious liberty was accomplished through the
least restrictive means. Clearly, RFRA's enactment was pivotal to
the district court's decision to enjoin enforcement of the hair
length regulation. In fact, prior to the enactment of RFRA, our
circuit had specifically held that a similar Missouri prison hair
length restriction was valid as reasonably related to legitimate
penological interests. Iron Eyes v. Henry, 907 F.2d 810, 813 (8th
Cir. 1990) (Iron Eyes), citing O'Lone v. Estate of Shabazz, 482
U.S. 342, 350 (1987) (O'Lone), and Turner v. Safly, 482 U.S. 78,
89-91 (1987) (Turner). Thus, the magistrate judge's conclusion
that RFRA effected a dramatic change in the legal landscape of
Supreme Court and Eighth Circuit precedent was sine qua non to his
recommendation that equitable relief be granted with regard to the
hair length restriction.1

This conclusion deserves elaboration. Before I examine the
limits of Congress's power under § 5 of the Fourteenth Amendment,
I find it helpful to review our court's experience over the last
two decades with the Free Exercise Clause and prison hair length
restrictions. In my opinion, this background underscores the
appropriateness of considering the constitutional question and

1
While I am inclined to believe that the denial of Hamilton's
request for a sweat lodge ceremony would also justify an
examination of the constitutionality of RFRA, I will, for purposes
of analysis, focus on the injunction prohibiting enforcement of the
hair length restriction because RFRA's effect on this claim is more
easily discernible.

-29-
facilitates an appreciation of the context in which that question
arises.

In 1975, our court decided Teterud. The majority opinion
describes Hamilton's reliance on Teterud as "misplaced," see note
12 supra, even though it involved a similar hair length issue and
was decided before O'Lone. In Teterud, a Native American inmate
challenged the constitutionality of a Missouri prison regulation
which prohibited him from wearing long hair. Id. at 358. The
district court applied the compelling interest test of Wisconsin v.
Yoder, 406 U.S. 205, 215 (1972) (Yoder), and found that the
regulation was an unconstitutional restriction on the inmate's
exercise of his Native American religion. Specifically, "[t]he
district court found the wearing of long braided hair to be a tenet
of the Indian religion sincerely held by [the inmate]. It further
found that the interest of penal administration advanced by [the
warden] could be served by viable, less restrictive means."
Teterud, 522 F.2d at 359. We held that neither of these findings
was clearly erroneous. In response to the warden's argument that,
inter alia, long hair caused identification problems and presented
the opportunity for contraband smuggling, we agreed with the
district court's finding that the warden's justifications were
either without substance or overly broad. Id. at 361.

The compelling interest test that we applied to invalidate the
prison hair length restriction in Teterud, however, was not to
survive the Supreme Court's decisions in O'Lone and Turner. See
Iron Eyes, 907 F.2d at 813 (recognizing that Teterud was limited to
its facts and that the compelling interest test had been rejecting
by the Supreme Court when evaluating free exercise challenges to
prison regulations).

Turner involved a Missouri prison regulation relating to
inmate marriages and inmate-to-inmate correspondence. 482 U.S. at
81. The district court held that regulations allowing inmate

-30-
marriage only with the warden's permission when compelling reasons
were present, and limiting inmate-to-inmate correspondence between
unrelated inmates on nonlegal matters, were unconstitutional. We
affirmed and applied strict scrutiny to conclude that the two
regulations were not the least restrictive means of achieving the
asserted goals of rehabilitation and security. Id. at 83. The
Supreme Court reversed, holding that we improperly applied the
heightened standard of Procunier v. Martinez, 416 U.S. 396, 413-14
(1974), and that, instead, we should have determined whether the
prison regulation which burdened a fundamental right was reasonably
related to a legitimate penological interest. Turner, 482 U.S. at
87. Specifically, the Court set out a four-part test under which
to analyze the challenged prison regulation. Id. at 89-90.
Applying this test, the Court upheld the correspondence regulation
but invalidated the marriage restriction. Id. at 100.

O'Lone was decided shortly after Turner. O'Lone involved an
inmate's challenge to several prison regulations which prevented
Muslim inmates from attending Jumu'ah, a weekly congregational
service commanded by the Koran. The Court reversed because it
concluded that the court of appeals had improperly imposed a
separate burden on prison officials to prove that no reasonable
method existed by which prisoners' religious rights can be
accommodated without creating bona fide security risks. Id. at
350. The Court again reiterated the standard that had recently
been stated in Turner and stressed that this "reasonableness" test,
which was less restrictive than that applied to alleged
infringements of fundamental constitutional rights outside the
prison context, "avoid[ed] unnecessary intrusion of the judiciary
into problems particularly ill-suited to resolution by decree."
Id. at 349-50 (quotation marks and citations omitted).

In the wake of these two Supreme Court decisions, we again
faced an inmate's free exercise challenge to a prison hair length
restriction in Iron Eyes. The plaintiff, a Sioux Indian, relied on

-31-
Teterud as support for his free exercise claim. We noted, however,
the effect of O'Lone and Turner on the legal landscape of inmate
challenges to prison regulations allegedly infringing upon
fundamental rights, applied the less onerous reasonableness test,
and held that the neutral grooming regulation was rationally
related to prison security interests and therefore did not
unreasonably infringe upon the inmate's fundamental right to freely
exercise his religion.2 907 F.2d at 816.

This review of our caselaw makes clear that, but for the
passage of RFRA, Hamilton could not have succeeded on his free
exercise challenge to the prison hair length regulation. Hamilton
argues that, because RFRA restored the compelling interest test of
Yoder, the controlling Eighth Circuit case on prison hair length
regulation is once again Teterud.3 The magistrate judge, through

2
We note that in Iron Eyes v. Henry, 907 F.2d 810 (8th Cir.
1990) (Iron Eyes), the prison did provide a procedure through which
an inmate could apply for an exemption from the prohibition against
long hair. That exemption was eliminated after the appeal in Iron
Eyes was taken under submission. Id. at 815 n.7. However, in a
subsequent decision, our court affirmed a district court's decision
to dismiss, on the basis of our holding in Iron Eyes, a complaint
filed by an inmate who challenged the same hair length restriction
at the same facility when the exemption no longer existed.
Campbell v. Purkett, 957 F.2d 535 (8th Cir. 1992) (per curiam);
accord Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994) (upholding
Missouri prison hair length regulation).
3
In its report to the Congress on RFRA, the Senate Judiciary
Committee explained: "As applied in the prison and jail context,
the intent of the act is to restore the traditional protection
afforded to prisoners to observe their religions which was weakened
by the decision in O'Lone v. Estate of Shabazz." S. Rep. No. 111,
103d Cong., 1st Sess. 9 (1993), reprinted in 1993 U.S.C.C.A.N.
1892, 1899. The Committee also found that "the compelling interest
standard established set forth [sic] in the Act will not place
undue burdens on prison authorities." Id. at 11. Finally, the
Committee concluded that no special exemption for prison free
exercise claims under the Act was necessary. Id.

-32-
his analysis, implicitly accepted this argument, as do I.4
Consequently, I believe that we are squarely faced with the
question whether Congress had the power to enact RFRA and thereby
supplant the Supreme Court's prior free exercise decisions,
including O'Lone and Turner, and our own circuit precedent.5

C.

Defendants argue that RFRA is unconstitutional because
Congress lacks authority under § 5 of the Fourteenth Amendment to
interfere with the state's operation of its prisons. They contend
that the Supreme Court has defined what rights inmates have
pursuant to the Free Exercise Clause by applying the reasonableness
test set forth in O'Lone and Turner. They maintain that RFRA
establishes a different test applicable to prisons, and therefore,
creates religious rights for prisoners that otherwise would not
exist. Defendants argue that § 5 does not give Congress the power

4
The magistrate judge carefully considered the "restored"
compelling interest test set out in RFRA. He first made a finding
that Hamilton's beliefs were sincerely held, and then concluded the
hair length regulation and the prohibition against sweat lodge
ceremonies substantially burdened Hamilton's exercise of his
religion. While the magistrate judge recognized the compelling
governmental interest in prison security, the magistrate judge
determined that defendants had not satisfied their burden of
demonstrating the hair length regulation was the least restrictive
means of furthering that interest. The magistrate judge noted, in
response to fears of contraband smuggling, that women incarcerated
in Missouri correctional facilities were not required to keep short
hair, and the magistrate judge also found significant the testimony
of two male inmates who were photographed with long hair but not
photographed again after their hair had been cut short. In Teterud
v. Burns, 522 F.2d 357, 361 (8th Cir. 1975), our court affirmed the
district court's rejection of similarly expressed concerns about
contraband smuggling and inmate identification as inadequate
justification for the hair length regulation.
5
See Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir.) ("The
recent passage of [RFRA] legislatively overturned a number of
recent Supreme Court decisions, including Turner and [O'Lone], by
defining a statutory (if not constitutional) right to the free
exercise of religion."), cert. denied, 115 S. Ct. 2625 (1995).

-33-
to change the constitutional holdings in O'Lone and Turner. They
maintain that the only basis for affirming the judgment, in light
of prior precedent, is the change made by Congress in RFRA and that
RFRA is an unconstitutional extension of congressional power.
Defendants conclude that § 5 is not an available basis for the
enactment of RFRA because it is merely an "enforcement" provision
which is limited to providing remediation consistent with the goals
of the Fourteenth Amendment. They therefore reason that RFRA
cannot be said to be "enforcing" a religious exercise right when
the Supreme Court had held that there was no such right.

Hamilton, and the government, on the other hand, maintain that
RFRA's enactment represents a valid exercise of congressional
authority under § 5. They argue that, because the Due Process
Clause of the Fourteenth Amendment incorporates the First
Amendment, nothing in § 5 limits Congress's ability to legislate
the procedures to be used to vindicate free exercise claims. The
government contends that Congress's § 5 power extends beyond the
authority merely to prohibit specific constitutional violations by
the states and that § 5 empowers Congress to legislate
prophylactically by proscribing or regulating conduct that,
although not unconstitutional, threatens or infringes upon the
exercise of Fourteenth Amendment rights. Both Hamilton and the
government contend that numerous Supreme Court decisions support
their broad interpretation of Congress's power under § 5.6
Further, the government argues that RFRA not only promotes the
Fourteenth Amendment's free exercise guarantee, but also enforces

6
See City of Rome v. United States, 446 U.S. 156 (1980)
(holding § 5 of the Voting Rights Act of 1965 was a valid exercise
of congressional power under § 2 of the Fifteenth Amendment);
Oregon v. Mitchell, 400 U.S. 112 (1970) (Mitchell) (holding inter
alia that Congress could set the age requirement for national
elections but not state or local elections); Katzenbach v. Morgan,
384 U.S. 641 (1966) (Morgan) (holding § 4(e) of the Voting Rights
Act was a valid exercise of Congress's enforcement power under § 5
of the Fourteenth Amendment).

-34-
the Equal Protection Clause by protecting against religious
discrimination. The government states emphatically that RFRA
creates a statutory, not constitutional, free exercise right. The
government admits that the separation of powers doctrine protects
the specific constitutional judgments of the federal courts from
legislative interference, and recognizes the Supreme Court's
paramount authority to interpret the Constitution; the government
asserts, however, that RFRA is simply a statute that provides
legislative protection for a constitutional right over and above
that provided by the Constitution.

D.

As noted in the majority opinion, supra note 8, RFRA was
passed in response to the Supreme Court's decision in Employment
Division v. Smith, 494 U.S. 872 (1990) (Smith). In Smith, two
members of the Native American Church claimed that the state
unfairly denied them unemployment compensation because their
religious use of peyote, which resulted in their job termination,
was determined to be disqualifying "misconduct." Id. at 876.
After remand to the Oregon Supreme Court for a determination as to
the legality of peyote use,7 the Supreme Court held that the Free
Exercise Clause permitted Oregon to prohibit sacramental peyote use
and therefore to deny the payment of unemployment benefits to the
Native Americans discharged for using peyote. Id. at 890. In so
holding, the Court rejected the application of the compelling
interest test to free exercise claims which challenged neutral and
valid laws of general applicability. Id. at 885. All parties in
the present case agree that we should not, and indeed could not,
decide whether the decision of the Court in Smith was correct as a
matter of constitutional law. Rather, our analysis should focus on

7
The Oregon Supreme Court held that peyote use was proscribed
by the state's drug laws; however, the court also concluded that
this prohibition was invalid under the Free Exercise Clause.
Employment Div. v. Smith, 494 U.S. 872, 875 (1990).

-35-
whether § 5 of the Fourteenth Amendment provides a basis for
Congress's enactment of RFRA.8 For the reasons stated below, I
would hold that it does not.

"The powers of the legislature are defined and limited; and
that those limits may not be mistaken or forgotten, the
constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch)
137, 176 (1803) (Marbury). While the Constitution was carefully
drafted to protect the states from undue intrusion by the federal
government, the Supreme Court has recently reminded us that "[t]he
Civil War Amendments . . . worked a dramatic change in the balance
between congressional and state power over matters of race." City
of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989); see
Oregon v. Mitchell, 400 U.S. 112, 129 (1970) (Mitchell) (Black,
J.). The most legally far-reaching of these Amendments, the
Fourteenth, provides the fundamental principles of equal protection
and due process of law. Although this Amendment was enacted in
response to our country's shameful history of slavery and racial
discrimination, many of the protections set forth in the Bill of
Rights have been applied to the states through the Due Process
Clause of the Fourteenth Amendment, including the protections of
the First Amendment. See Cantwell v. Connecticut, 310 U.S. 296,
303 (1940) ("The fundamental concept of liberty embodied in that
Amendment embraces the liberties guaranteed by the First
Amendment."). Section 5 of the Fourteenth Amendment states that
"[t]he Congress shall have power to enforce, by appropriate
legislation, the provisions of this article." U.S. CONST. amend.

8
In a footnote to its brief, the government suggests that RFRA
is also a valid exercise of congressional power under the Commerce
Clause. Brief for Plaintiff-Intervenor at 33 n.16. We note,
however, that the only basis suggested in the legislative history
to RFRA, and in the main text of the government's brief, is § 5 of
the Fourteenth Amendment. For many of the same structural reasons
cited in this dissenting opinion, which preclude § 5 from
supporting RFRA's constitutionality, I cannot conclude, based on
the very limited treatment of the issue by the government, that the
Commerce Clause is a valid basis for the enactment of RFRA.

-36-
XIV, § 5. Because it is "emphatically the province and duty of the
judicial department to say what the law is," Marbury, 5 U.S. at
177, we should determine whether RFRA falls within the scope of
legislative power granted to Congress by § 5, as it has been
interpreted by the courts.

The issue of whether Congress's power under § 5 of the
Fourteenth Amendment is the same when it acts to enforce an
incorporated right as when it acts to remedy or to prevent a
violation of the Fourteenth Amendment itself has not been expressly
decided. See Hutto v. Finney, 437 U.S. 678, 718 (1978) (Rehnquist,
J., dissenting). An argument could be made, based on both
historical perspective and the logic of the doctrine of
incorporation itself, that Congress's power to enforce incorporated
rights under § 5 should be circumscribed. See Mitchell, 400 U.S.
at 129 ("Where Congress attempts to remedy racial discrimination
under its enforcement powers, its authority is enhanced by the
avowed intention of the framers of the Thirteenth, Fourteenth, and
Fifteenth Amendments."). The Supreme Court has not had an occasion
to resolve this issue. Nor would it be necessary, in my opinion,
for this panel decide this particular issue in the present case
because I believe that RFRA is unconstitutional, even assuming
Congress's powers under § 5 are not variable.

The leading case on the scope of Congress's power under § 5 is
Katzenbach v. Morgan, 384 U.S. 641 (1966) (Morgan). In Morgan, the
Supreme Court referred to § 5 as "a positive grant of legislative
power authorizing Congress to exercise its discretion in deter-
mining whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment." Id. at 651. That case
considered whether § 4(e) of the Voting Rights Act of 1965, 42
U.S.C. § 1973b(e), was "appropriate legislation" to enforce the
Equal Protection Clause. In respects pertinent to the cases under
review in Morgan, § 4(e) provides that no person who has
successfully completed the sixth grade in a public school in, or a

-37-
private school accredited by, the Commonwealth of Puerto Rico in
which the language of instruction was other than English shall be
denied the right to vote in any election because of his or her
inability to read or write English. The State of New York
challenged the statute because it conflicted with the state's
requirement that voters be able to read and write English. Morgan,
384 U.S. at 643-45. The Court, however, held that section 4(e) was
"a proper exercise of the powers granted to Congress by § 5 of the
Fourteenth Amendment." Id. at 646.

New York argued that an exercise of congressional power under
§ 5 could only be sustained if the state law which was invalidated
by the legislative action was itself violative of the Fourteenth
Amendment. The Court disagreed and held that "[a] construction of
§ 5 that would require a judicial determination that the
enforcement of the state law precluded by Congress violated that
Amendment, as a condition of sustaining the congressional
enactment, would depreciate both congressional resourcefulness and
congressional responsibility for implementing the Amendment." Id.
at 648. In its discussion of the scope of § 5, the Court explained
that "the draftsmen sought to grant to Congress, by a specific
provision applicable to the Fourteenth Amendment, the same broad
powers expressed in the Necessary and Proper Clause." Id. at 650;
see Ex parte Virginia, 100 U.S. 339, 345-46 (1879) (delineating the
scope of § 5 powers); see also South Carolina v. Katzenbach, 383
U.S. 301, 326 (1966) (Katzenbach) (applying the McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819), standard to the
enforcement provision of the Fifteenth Amendment).

Analyzing § 4(e) under this broad standard, the Court provided
two alternative bases for its conclusion that § 4(e) was a proper
exercise of § 5 power. These two bases have been referred to by
the commentators as the remedial theory and the substantive theory

-38-
of § 5 power.9 The Court first considered a remedial justification
for the enactment of § 4(e). Explaining the enactment of § 4(e) as
a measure to enforce the Equal Protection Clause, the Court stated
in Morgan: "Section 4(e) may be viewed as a measure to secure for
the Puerto Rican community residing in New York nondiscriminatory
treatment by government--both in the imposition of voting
qualifications and the provision or administration of governmental
services . . . ." Morgan, 384 U.S. at 652. The Court further
provided that the statute was plainly adapted to furthering the
aims of the Equal Protection Clause because it "enable[d] the
Puerto Rican minority of New York better to obtain perfect equality
of civil rights and the equal protection of the laws." Id. at 653
(quotation marks omitted). The Court concluded that, where
Congress has assessed and weighed the various conflicting
considerations, the statute would be upheld as long as a basis
could be perceived upon which Congress might have resolved the
conflicting considerations as it did. Id.

This conclusion, based on a remedial approach, in no way
rested on the possibility that Congress determined the enactment or
application of the state's English literacy requirement had as its
purpose the perpetuation of invidious discrimination. As Justice
Stewart understood the first Morgan rationale, Congress could have

9
See Daniel O. Conkle, The Religious Freedom Restoration Act:
The Constitutional Significance of an Unconstitutional Statute, 56
Mont. L. Rev. 39 (1995). Explaining the alternative rationales of
Morgan, Justice Stewart in Mitchell stated:

The Court's opinion made clear that Congress could impose
on the States a remedy for the denial of equal protection
that elaborated upon the direct command of the
Constitution, and that it could override state laws on
the ground that they were in fact used as instruments of
invidious discrimination even though a court in an
individual lawsuit might not have reached that factual
conclusion.

400 U.S. at 296 (Stewart, J., concurring in part and dissenting in
part).

-39-
concluded that "enhancing the political power of the Puerto Rican
community by conferring the right to vote was an appropriate means
of remedying discriminatory treatment in public services."
Mitchell, 400 U.S. at 295 (Stewart, J., concurring in part and
dissenting in part). In other words, the Morgan Court concluded
that, by ensuring that the Puerto Rican community was not denied
that right which is "preservative of all rights," Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886), Congress rationally enacted
§ 4(e) to "enforce and effectuate the judicially determined
constitutional prohibition on racial discrimination by government."
Daniel O. Conkle, The Religious Freedom Restoration Act: The
Constitution Significance of an Unconstitutional Statute, 56 Mont.
L. Rev. 39, 47 (1995); see Fullilove v. Klutznick, 448 U.S. 448,
477 (1980) (plurality opinion).

The Court then provided a second basis for Congress's
enactment of § 4(e) which it believed would also make § 4(e)
"appropriate legislation" under § 5. This was the so-called
substantive theory.10 The Court prefaced this portion of its
analysis as follows: "The result is no different if we confine our
inquiry to the question whether § 4(e) was merely legislation aimed
at the elimination of an invidious discrimination in establishing
voter qualifications." Id. at 653-54. In this section, the Court
reviewed the factual determination which Congress may have made
regarding the particular purpose behind the New York's English
literacy law. The Court noted that Congress might have questioned
both the role that prejudice played in the passage of the state law
and further questioned the public policy concerns and the way in
which the state legislature resolved them. Clearly, this type of
review is within the ambit of Congress's "specially informed

10
While we employ this terminology occasionally throughout our
opinion, we do not believe, as will be discussed later, that the
second Morgan rationale for § 4(e)'s validity under § 5 is properly
characterized as substantive.

-40-
legislative competence." Id. at 656. Thus, the Court concluded
that

it is enough that we perceive a basis upon which Congress
might predicate a judgment that the application of New
York's English literacy requirement to deny the right to
vote to a person with a sixth grade education in Puerto
Rican schools in which the language of instruction was
other than English constituted an invidious
discrimination in violation of the Equal Protection
Clause.

Id. In other words, Congress could look to the legislative intent
behind the state law,11 the substance of the state law, and the
competing policy considerations, and form the belief that the
application of the law was indeed an invidious discrimination which
would violate the Equal Protection Clause, as that clause had been
expounded by the Court. Furthermore, so long as the Court could
perceive a basis for this legislative judgment, the exercise of § 5
power would be valid.

When Congress acts to invalidate a law that is neutral on its
face but unconstitutionally discriminatory in application or
intent,12 it necessarily employs its superior factfinding
capabilities and policymaking acumen to eradicate the effects of
discrimination and prevent future constitutional violations which
a federal court, because of its Article III limitations, for
example, may not be able to address readily. I therefore think

11
In Morgan, the Court took notice of the evidence of the
discriminatory attitudes which likely influenced the enactment in
1916 of the New York English literacy requirement. 384 U.S. at 654
n.14.
12
Seven years before Morgan, the Supreme Court upheld a facial
challenge to a North Carolina law nearly identical to the New York
law struck down by § 4(e) of the Voting Rights Act. See Lassiter
v. Northampton Election Bd., 360 U.S. 45 (1959). The Court was
careful to note that the "issue of discrimination in the actual
application of the ballot laws of North Carolina" had not been
presented in the state court below, and would not therefore be
reached. Id. at 50.

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that the second Morgan theory is best understood to allow Congress
to address those facially neutral activities which may have
unconstitutional underpinnings, and not as a rationale that grants
Congress a substantive power under § 5 to define the scope of
constitutional guarantees. With this understanding of Morgan's
alternative rationales, I proceed to consider whether § 5 can
provide a basis for Congress's enactment of RFRA.

E.

I begin my analysis of RFRA with the congressional findings,
42 U.S.C. § 2000bb(a), to highlight the diametrically opposed
positions of the Supreme Court and Congress on the nature of the
Free Exercise Clause and to demonstrate the a priori quality of
these congressional findings. In short, the language of these
findings portrays Congress, not as a political organ well-suited to
conduct the business of empirical research and policy
13
implementation, but as a super-Supreme Court. Finding (2) which
states that "laws neutral toward religion may burden religious
exercise as surely as laws intended to interfere with religious
exercise" is clearly not the product of extensive factfinding but
the result of a logician's exercise. Id. § 2000bb(a)(2). Finding
(3) further states that "governments should not substantially
burden religious exercise without compelling justification." Id.
§ 2000bb(a)(3). As the stated purposes of RFRA reveal, this
finding is nothing more than the Congress's adoption of the
standard set forth in the pre-Smith Supreme Court decisions in
Sherbert v. Verner, 374 U.S. 398 (1963) (Sherbert), and Yoder,
which the Supreme Court has specifically rejected as unworkable and

13
In fact, the Senate Judiciary Committee expressly stated that
"the purpose of this act [was] only to overturn the Supreme Court's
decision in Smith." S. Rep. No. 111, at 12.

-42-
unnecessary in free exercise cases.14 See Smith, 494 U.S. at 888-
90. Nevertheless, Congress provided in its final stated finding
that "the compelling interest test as set forth in prior Federal
court rulings is a workable test for striking sensible balances
between religious liberty and competing prior governmental
interests." 42 U.S.C. § 2000bb(a)(5). In essence, Congress has
instructed the Supreme Court how to interpret the Free Exercise
Clause of the First Amendment (that is, apply the compelling
interest test), even though the Court, the entity charged by the
Constitution with its application, has determined that the
compelling interest test is neither feasible nor required. It
hardly needs to be said that where Congress and the Supreme Court
are so clearly at odds with each other over the definition of a
fundamental right, the conflict presents an obvious and serious
threat to the delicate balance of the separation of powers.

In his opinion for the Court in Smith,
Justice Scalia
explained the problematic aspects of the compelling interest test
in the context of free exercise cases:

The government's ability to enforce generally
applicable prohibitions of socially harmful conduct, like
its ability to carry out other aspects of public policy,
cannot depend on measuring the effects of a government
action on a religious objector's spiritual development.
To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious
beliefs, except where the State's interest is
"compelling" -- permitting him, by virtue of his beliefs,
to become a law unto himself, contradicts both
constitutional tradition and common sense.

14
See Scott C. Idleman, The Religious Freedom Restoration Act:
Pushing the Limits of Legislative Power, 73 Tex. L. Rev, 247, 313
(1994) ("In the specific case of RFRA . . . the relevance of
Congress's factfinding capacity is not entirely obvious. For one
thing, the rejection of judicial balancing in Employment Division
v. Smith was arguably a normative, and not empirically contingent,
judgment about the meaning of free exercise and the nature of the
judiciary.").

-43-
494 U.S. at 885 (internal citations and quotation marks omitted).
The Court could not have been clearer in its expression of the view
that the compelling interest test of Yoder and Sherbert should be
abandoned as inconsistent with its constitutional judgment. Yet,
through RFRA, Congress expressly intended "to restore the
compelling interest test as set forth in [Sherbert] and [Yoder] and
to guarantee its application in all cases where free exercise of
religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1).

Moreover, in direct contravention of the Court's analysis in
Smith, the "substantially burdened" element of RFRA requires courts
to weigh the centrality of an adherent's religious practice.
Further exposing the failings of the compelling interest test in
free exercise cases, Justice Scalia wrote: "Repeatedly and in many
different contexts, 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." Smith, 494 U.S. at 887. Yet,
by injecting the "substantially burdened" element into a court's
RFRA analysis, Congress would require courts to weigh the extent of
an alleged infringement upon a religious practice against the
importance of that practice.15 In fact, predictably, defendants in
the present case have argued that RFRA does not apply to the
challenged prison prohibitions because they merely "impinged"
rather than "substantially burdened" Hamilton's free exercise of
religion. Brief for Appellants at 16. This type of argument is
exactly what troubled the Court when it explained its inability to
constitutionally apply the compelling interest test to free
exercise claims challenging generally applicable laws. See Smith,
494 U.S. at 888-89.

15
See, e.g., Alameen v. Coughlin, 892 F. Supp. 440, 448
(E.D.N.Y. 1995) ("[T]o impose a substantial burden, government
interference must be more than an inconvenience. The interference
must burden a belief central to a plaintiff's religious doctrine."
(citation omitted)).

-44-
 Justice Scalia further explained the distinction between the
application of the compelling interest test in cases of race
discrimination, or the content regulation of speech, and matters of
free exercise of religion: "What it produces in those other
fields--equality of treatment and an unrestricted flow of
contending speech--are constitutional norms; what it would produce
here--a private right to ignore generally applicable laws--is a
constitutional anomaly." Id. at 886. I believe that this
observation sheds considerable light upon the contours of § 5 as
discussed in Morgan and the validity of RFRA.

In Morgan, § 5 was held to be a valid constitutional basis for
a provision of the Voting Rights Act prohibiting the use of English
literacy tests as a prerequisite to suffrage. In that instance,
the use of § 5 as a means of furthering the cause of equal
protection was certain. Congress did not impose a standard of
review for all equal protection claims which the courts were to
employ generally; rather, under the remedial or first Morgan
theory, Congress prohibited a particular state practice in order to
root out the effects of past invidious discrimination and to reduce
the possibility of future invidious discrimination. Enacting such
a law is, however, qualitatively different from imposing upon the
Court a standard of review for free exercise claims which overrules
its prior free exercise holdings. RFRA's imposition of the
compelling interest test on all free exercise claims is nothing
less than a radical alteration of the Supreme Court's free exercise
jurisprudence.

Under the so-called substantive or second Morgan theory, the
Court concluded that Congress, after conducting its own
investigation, might have rationally determined that a facially
valid state law was enacted or applied so as to invidiously
discriminate in violation of the Equal Protection Clause. Again,
in the present case, Congress did not, in an exercise of its
superior factfinding capacity, take aim at a particular neutrally-

-45-
phrased state law which it had concluded was enacted or applied
unconstitutionally. In RFRA, Congress sought to impose a
heightened level of scrutiny on the federal courts for every type
of case in which state or federal government substantially burdens
one's religious practice. As such, Congress abdicated its
responsibility to investigate the particular state action which
might have the potential of unconstitutionally burdening the free
exercise of religion, and instead, Congress has required the courts
to investigate, under a standard previously rejected by the Supreme
Court, the myriad cases in which plaintiffs claim their religious
practice has been substantially and unjustifiably burdened. It is
thus clear that the substantive or second Morgan rationale as well
fails to support Congress's "restoration" of the compelling
interest test to all free exercise claims brought in federal court.

I believe that what Congress has done through RFRA's passage
under the banner of § 5 is dramatically different from its exercise
of § 5 power in Morgan or in any other case to date. In Smith, the
Supreme Court, consistent with its constitutional duty under
Marbury, concluded that the scope of the First Amendment guarantee
of free exercise did not require the imposition of a heightened
level of scrutiny on neutral laws of general applicability, even
though such laws may burden religious practice. When the Court so
held, it was performing it most essential and solemn function: it
interpreted the scope of the Free Exercise Clause and determined
that neutral laws of general applicability passed constitutional
muster. In passing RFRA, the Congress did not invalidate a state
law or state prison regulation as violative of, or even
inconsistent with, the goals of the Fourteenth Amendment; rather,
Congress substantively altered the Supreme Court's understanding of
what the Free Exercise Clause actually means.

Were we to uphold RFRA on the basis of § 5, we would, under
our reading of Smith, allow Congress to impose a standard for the
judicial evaluation of all free exercise claims which not only

-46-
overrules prior free exercise decisions but also, in the considered
and paramount judgment of the Supreme Court, leads to
constitutionally anomalous results. Where, as here, Congress acts
under the aegis of § 5 to impose on the judiciary a method of
analysis for the resolution of all claims based on the fundamental
right of free exercise, which in the Court's view, does not produce
"equality of treatment" but constitutional anomalies, such
legislative action, I think, must be beyond the language and
constitutional intent of § 5.16 I believe that, through RFRA,
Congress does not seek simply to enhance the protection afforded by
the Free Exercise Clause, but to define it. I therefore conclude
that RFRA is unconstitutional. Accord Flores v. City of Boerne,
877 F. Supp. 355, 356-57 (W.D. Tx. 1995); In re Tessier, No. 94-
31615-13, 1195 WL 736461 (Bankr. D. Mont. Dec. 8, 1995).

F.

I recognize that several district court decisions have upheld
RFRA as constitutional. See, e.g., Sasnett v. Department of
Corrections, 891 F. Supp. 1305, 1315-21 (W.D. Wis. June 23, 1995)
(Sasnett); Belgard v. Hawaii, 883 F. Supp. 510, 512-17 (D. Haw.
1995) (Belgard) (followed by Abordo v. Hawaii, 902 F. Supp. 1220,
1229-34 (D. Haw. 1995)). However, I disagree with the reasoning of
those cases. In Belgard, much like the present case, the plaintiff
was a Native American who challenged various prison regulations

16
See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490
(1989) ("The power to 'enforce' may at times also include the power
to define situations which Congress determines threaten principles
of equality and to adopt prophylactic rules to deal with those
situations."); see also Christopher V. Eisgruber & Lawrence G.
Sager, Why the Religious Freedom Restoration Act is
Unconstitutional, 69 N.Y.U. L. Rev. 437, 453-54 (1994) ("RFRA's
compelling state interest test privileges religious believers by
giving them an ill-defined and potentially sweeping right to claim
exemption from generally applicable laws, while comparably serious
secular commitments -- such as those flowing from parental
obligation, philosophical conviction, or lifelong cultural practice
-- receive no such legal solicitude.").

-47-
including a hair length restriction. 883 F. Supp. at 511. Hawaii
argued that RFRA was unconstitutional because it represented
"congressional usurpation of functions entrusted exclusively to the
judiciary, including delineation of the boundaries of
constitutional rights and calibration of the proper balance between
competing interests of constitutional magnitude." Id. at 513.
Rejecting the state's argument, the district court relied heavily
on Morgan. Specifically, the district court made much of the fact
that the Supreme Court declined to overrule Lassiter v. Northampton
Election Bd., 360 U.S. 45 (1959) (Lassiter), and, "despite the
statute's vitiation of Lassiter, sustained the constitutionality of
section 4(e) of the Voting Rights Act." Belgard, 883 F. Supp. at
514. The district court, seizing upon the substantive or second
Morgan theory, stated that the Supreme Court's alternate rationale
for sustaining § 4(e) was "a legislative judgment that the literacy
requirement violated the Equal Protection Clause per se." Id.
Because of this apparent direct conflict between Lassiter and
§ 4(e), the district court concluded that Congress had the power to
"expressly disagree with the Court as to the reach of
constitutional rights." Id. (citation omitted).

I believe the district court in Belgard read the scope of the
Morgan holding too broadly. To properly understand the limits of
the substantive or second Morgan theory, I revisit Lassiter. In
that case, the plaintiffs brought only a facial challenge to a
North Carolina literacy requirement nearly identical to the New
York requirement in Morgan. As noted in Belgard, the Court
concluded that "'literacy and illiteracy are neutral on race.'"
Id. at 515 (quoting Lassiter, 360 U.S. at 51). However, the
Lassiter Court importantly noted: "Of course a literacy test, fair
on its face, may be employed to perpetuate that discrimination
which the Fifteenth Amendment was designed to uproot. No such
influence is charged here." 360 U.S. at 53. The Lassiter holding
did not preclude the possibility that a constitutional challenge to
the application of the North Carolina literacy requirement might

-48-
not be successful. See Katzenbach, 383 U.S. at 333. This sheds
considerable light on the substantive or second Morgan theory of
§ 5 power. The Supreme Court simply noted that, under § 5,
Congress could examine the effect of, and the policy decisions
behind, a literacy requirement and determine that "the application
of New York's literacy requirement" was invidious discrimination.
Morgan, 384 U.S. at 656. Thus, Lassiter and Morgan were not
constitutionally inconsistent.17 The Morgan Court did not, by
implication, provide that Congress could disagree with the Supreme
Court's constitutional judgment; rather, Morgan provided that
Congress could determine that a literacy requirement, adjudged to
be facially valid, may in application constitute invidious
discrimination in violation of the Fourteenth Amendment's Equal
Protection Clause. Therefore, I believe the district court in
Belgard was incorrect to conclude that "Morgan held that Congress
acted within its enforcement authority under section 5 of the
Fourteenth Amendment when, pursuant to section 4(e) of the Voting
Rights Act, it limited prior Supreme Court doctrine in order to
expand a right guaranteed by the Fourteenth Amendment." Belgard
883 F. Supp. at 516. By failing to appreciate the limits of
Lassiter, the district court in Belgard implied that the Supreme
Court's decision in Morgan interpreted § 5 more broadly than it
actually did.

I find Sasnett equally unavailing. Sasnett involved a
challenge brought by a number of Wisconsin prison inmates against
prison rules regulating the types of personal property they could
possess. In holding RFRA constitutional, the district court in
Sasnett also placed great reliance on Morgan. The court followed

17
But see Note, When The Supreme Court Restricts Constitutional
Rights, Can Congress Save Us? An Examination of Section 5 of the
Fourteenth Amendment, 141 U. Pa. L. Rev. 1029, 1061 (1993)
(concluding that the second Morgan theory "holds that Congress can
expressly disagree with the Court as to the reach of constitutional
rights").

-49-
a line of reasoning similar to that of Belgard and concluded:
"Lassiter was to the Voting Rights Act what Smith is to the
Religious Freedom Restoration Act." 891 F. Supp. at 1317. It
should be clear from my analysis thus far that I believe the
Belgard and Sasnett courts have read Lassiter too broadly and
thereby perceived a false conflict between Lassiter and Morgan.
Lassiter's holding was clearly limited to the facial challenge to
the North Carolina literacy requirement. In Morgan, the Court
simply determined that Congress's judgment that the facially
neutral literacy requirement was in application an example of
invidious discrimination violative of equal protection would not be
upset as long as the Court could perceive a basis for this
conclusion. A proper understanding of the precise interplay of
these two Supreme Court decisions demonstrates the limits of
Morgan. Morgan does not support the passage of RFRA as a valid
exercise of § 5 power.

The Sasnett court also offered an alternative remedial
justification for Congress's use of § 5 power to enact RFRA. Under
this approach, the district court concluded that "Congress has not
attempted to define the First Amendment; rather, it has merely
prohibited otherwise lawful activity as a means of further
enforcing constitutional rights." 891 F. Supp. at 1318. This is,
in essence, the "statutory, not constitutional" right argument
which the government advances in the present case. The Sasnett
court found it "obvious" that RFRA is a rational means of
safeguarding the core constitutional right to free exercise, as
judicially defined." Id. Explaining Congress's intent in passing
RFRA, the district court continued: "Congress determined that
requiring plaintiffs to prove that state actors intended to
discriminate on the basis of religion creates an evidentiary
barrier to the full protection of constitutional rights. . . . It
was wholly rational for Congress to have concluded that [RFRA]
would add greater protection to First Amendment guarantees." Id.
at 1319.

-50-
 Again, I believe that the Sasnett court's reliance on Morgan
was misplaced. The Sasnett court concluded that the only way RFRA
"substantively altered the scope of federal rights to free
religious exercise was by obviating proof of discriminatory intent
on the part of state actors." Id. However, I believe there is an
important difference between a congressional enactment which
invalidates a state law or practice in the absence of
discriminatory intent, see Morgan, 384 U.S. at 652-53; see also
City of Rome v. United States, 446 U.S. 156 (1980), and a
congressional enactment which summarily imposes an across-the-board
standard for the evaluation of free exercise claims that the
Supreme Court has criticized and abandoned. Through RFRA's
passage, Congress did not attempt to root out a particular evil,
such as literacy tests, which were often means for perpetuating
racial discrimination, but simply expressed the normative judgment
that "governments should not substantially burden religious
exercise without compelling justification." 42 U.S.C.
§ 2000bb(a)(3). This is the role given to the Supreme Court, not
Congress, by the Constitution.

RFRA is neither remedial nor supplemental, but definitional.
Morgan upheld a law which, as the Court indicated, Congress might
have rationally concluded would either remedy past invidious
discrimination or prevent future discriminatory conduct. In RFRA,
however, Congress establishes a rejected method of analysis for all
free exercise claims simply because Congress interprets the Free
Exercise Clause differently than the Supreme Court. This is not
prophylaxis but unconstitutional interbranch hegemony. As Justice
Harlan stated in Mitchell, "[to] allow a simple majority of
Congress to have final say on matters of constitutional
interpretation is . . . fundamentally out of keeping with the
constitutional structure." 400 U.S. at 205 (Harlan, J., concurring
in part and dissenting in part). Consequently, I would hold that
the enactment of RFRA was not a valid exercise of § 5 power. To
hold otherwise would be inconsistent with the essence of judicial

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review and the separation of powers. See Flores v. City of Boerne,
877 F. Supp. 355 (W.D. Tex. 1995) (holding RFRA unconstitutional
under the separation of powers doctrine). Section 5 grants
Congress the power to supplement, not subvert, the Supreme Court's
underlying constitutional jurisprudence.

III.

Because Congress does not have the power under § 5 of the
Fourteenth Amendment to enact RFRA, I would hold that the Religious
Freedom Restoration Act is unconstitutional.18 Accordingly, I would
vacate the judgment of the district court and remand the case for
further proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

18
Because I would hold that Congress was without power to enact
RFRA under § 5 of the Fourteenth Amendment, I would not reach
defendants' arguments that RFRA violates the Tenth Amendment and,
as applied, violates the Establishment Clause.

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