United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2002 Decided March 8, 2002
No. 00-5346
Daniel J. Levitan and
Vincent L. Leonardo,
Appellants
v.
John D. Ashcroft,
Attorney General, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00017)
Michael J. Golden, appointed by the court, argued the
cause as amicus curiae on the side of appellants. With him
on the briefs was Richard P. Bress.
G. Michael Harvey, Assistant United States Attorney, ar-
gued the cause for appellees. With him on the brief were
Roscoe C. Howard Jr., United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney. David T. Smo-
rodin, Assistant United States Attorney, entered an appear-
ance.
Before: Edwards, Henderson, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Edwards.
Edwards, Circuit Judge: Appellants are federal prisoners
who are practicing Catholic Christians. They challenge a
prison rule preventing them from consuming small amounts
of wine as part of the Catholic sacrament known as Commun-
ion. In the past, prison officials have allowed inmates to
consume wine under supervision during Communion. Under
the new rule, however, only the supervising chaplain is per-
mitted to consume the wine. Appellants claim that this
prohibition violates their constitutional rights under the free
exercise clause of the First Amendment.
A prison regulation that impinges on inmates' constitutional
rights is valid if it is reasonably related to legitimate penolog-
ical interests. See Turner v. Safley, 482 U.S. 78, 89 (1987);
O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). In this
case, the District Court granted summary judgment for the
prison officials on the ground that consuming wine during
Communion is not an essential aspect of appellants' religious
practice, one "which the believer may not violate at peril of
his soul." Levitan v. Reno, Civ. Action No. 99-0017, Mem.
Op. at 8 (D.D.C. Aug. 3, 2000) ("Mem. Op.") (quoting Ward v.
Walsh, 1 F.3d 873, 878 (9th Cir. 1993)), reprinted in Joint
Appendix ("J.A.") 22. In reaching this result, the District
Court erred in holding that, to qualify for protection under
the First Amendment, a religious practice must be mandated
by the prisoners' religion. This holding finds no support in
our case law. The District Court also failed to perform the
balancing analysis required by Turner and O'Lone.
We therefore reverse and remand the case to the District
Court for further proceedings.
I. Background
Appellants are incarcerated at the Federal Prison Camp in
Pensacola, Florida ("the prison"). They are self-described
Catholic Christians who were baptized as children. See Decl.
of Daniel J. Levitan ("Levitan Decl.") p 1, reprinted in J.A.
69; Decl. of Vincent Leonardo ("Leonardo Decl.") p 1, re-
printed in J.A. 75. As part of their religion, they practice the
Eucharist sacrament, which is also called Holy Communion.
Levitan Decl. p 7, reprinted in J.A. 70; Leonardo Decl. p 4,
reprinted in J.A. 76. Communion is traditionally adminis-
tered by a priest. After the priest consecrates bread and
wine (sometimes called "species" or "forms"), appellants be-
lieve that the bread transforms into the body of Jesus Christ,
their Messiah and Lord, and that the wine transforms into his
blood. This transformation is called transubstantiation. Am.
Compl. for Declaratory J. and Temporary and Permanent
Injunctive Relief ("Am. Compl.") p 28, reprinted in J.A. 31.
According to appellants' long-standing practice, after the
consecration, the priest, as well as the congregants, consume
the transubstantiated bread and wine. Levitan Decl. p 7,
reprinted in J.A. 70; Leonardo Decl. p 4, reprinted in J.A.
76; Am. Compl. p 28, reprinted in J.A. 31. The priest can
present the wine using several methods, including the chalice
(congregants sip directly from a cup the priest holds), the
spoon (congregants use a spoon to sip from a cup the priest
holds), the straw (congregants sip through a straw from a cup
the priest holds), and intinction (congregants dip the transub-
stantiated bread into the wine and then eat the bread). See
Br. of Amicus Curiae on Behalf of Appellants ("Br. of
Appellants") at 5 n.7. In their complaint, appellants stated
their belief that it was "the command of the Lord Jesus
Christ to consume both bread and wine" during the Eucharist
sacrament. Am. Compl. p 33, reprinted in J.A. 32. They
further stated that the liturgical life of their church "revolves
around" the Eucharist ritual. Id. p 31.
Federal law has long prohibited prisoners from consuming
alcohol. See 18 U.S.C. s 1791 (2000) (setting forth punish-
ments for possessing contraband, including alcohol, in prison);
28 C.F.R. s 541.13 (2000) (making possession and use of
alcohol in federal prisons sanctionable). Until recently, how-
ever, prison officials have permitted the chaplain to adminis-
ter small amounts of wine to Catholic inmates during Com-
munion, through intinction, with precautions. Levitan Decl.
pp 3-4, reprinted in J.A. 69-70; Leonardo Decl. p 3, reprinted
in J.A. 75-76; Am. Compl. p 3, reprinted in J.A. 24. In 1997,
however, the United States Department of Justice, Bureau of
Prisons ("BOP") issued Program Statement Number 5360.07,
relating to "Religious Beliefs and Practices." BOP Program
Statement No. 5360.07 (Aug. 25, 1997), reprinted in J.A. 44.
Paragraph 19 deals with sacramental wine. It provides in
relevant part:
Sacramental wine is necessary for the worship of some
faith groups, i.e., the requirements of the ritual cannot be
satisfied without the use of wine. In those cases only,
the staff or contract chaplain may consume small
amounts of wine for performance of the ritual.
Id. p 19, reprinted in J.A. 45. There is no provision in the
rule allowing prisoners to consume wine under any circum-
stances. Since the policy was implemented in mid-1998,
appellants have been prevented from consuming wine during
Communion. Instead, the prison chaplain consumes the wine
himself, while the inmates consume only the bread. Levitan
Decl.pp 4-6, reprinted in J.A. 70; Leonardo Decl. p 3, re-
printed in J.A. 76.
Appellant Daniel Levitan, acting pro se, brought suit
against the Attorney General and the Director of the BOP
(collectively, "the Government"), alleging that the Program
Statement violated his First and Fifth Amendment rights.
He subsequently amended his complaint to add additional
plaintiffs, all of whom were then inmates at the prison.
Appellants did not allege violations of the Religious Freedom
Restoration Act (RFRA) as amended, 42 U.S.C.A. s 2000bb-1
et seq. (1994 & Supp. 2001). They have indicated, however,
that they will seek to amend their complaint to add allega-
tions under RFRA if the case is remanded. Br. of Appellants
at 19 n.14.
Appellees moved for summary judgment before the District
Court. In support of their motion, appellees submitted the
declaration of Susan VanBaalen, a Catholic nun with degrees
in divinity and theology, who was employed by the BOP.
Decl. of Susan VanBaalen ("VanBaalen Decl."), reprinted in
J.A. 50-52. In her declaration, Sister VanBaalen contended
that the Catholic religion does not require congregants to
consume the wine during Communion. Rather, Sister Van-
Baalen asserted that those who receive Communion under the
form of bread alone "are not deprived of any grace necessary
for salvation," id. p 3, reprinted in J.A. 51, and that consum-
ing the bread alone is rooted in a long tradition that the
Church recognizes as one of the ways in which Communion
may be received, id. p 5. Sister VanBaalen also stated that
Communion "has a more complete form as a sign when it is
received under the forms of both bread and wine." Id. p 4.
Appellees also obtained a letter to the same effect from the
Roman Catholic Bishop of the Diocese in which the prison is
located. Letter from Most Reverend John H. Ricard, S.S.J.
to Sister Susan VanBaalen (Aug. 3, 1999), reprinted in J.A.
60-61. The Bishop noted that a number of Catholic parishes
in his Diocese offer parishioners Communion without wine for
the congregants. Id.
The District Court granted appellees' motion for summary
judgment. See Levitan v. Reno, Civ. Action No. 99-0017
(Judgment) (D.D.C. Aug. 3, 2000), reprinted in J.A. 14. In
its accompanying memorandum opinion, the District Court
acknowledged that "correctional institutions may be required
to accommodate the religious beliefs and practices of in-
mates," because prisoners retain the right to freedom of
religion. Mem. Op. at 5, reprinted in J.A. 19. The District
Court recited the established test that a prisoner's right to
observe his religion in prison may be circumscribed when the
infringement is reasonably related to a legitimate penological
interest. Id. (citing O'Lone, 482 U.S. at 348). The court also
listed the factors used to determine the reasonableness of
restrictions on prisoners' rights as set forth in Turner, 482
U.S. at 89-90. Id. It noted that the prison officials had not
provided any justification for the changed policy regarding
inmates' consumption of wine during Communion. Id. at 6,
reprinted in J.A. 20. The court declined, however, to apply
the Turner factors or to make the O'Lone determination.
The District Court instead determined, relying on Sister
VanBaalen's declaration, that appellants had not claimed that
they were deprived of "a vital part of their religion." Id. at 8,
reprinted in J.A. 22. The court distinguished between "a
religious practice which is a positive expression of belief and a
religious commandment which the believer may not violate at
peril of his soul." Id. (quoting Walsh, 1 F.3d at 878). The
court finally found that appellants had failed to show that the
BOP rule prevented them from participating in "an essential
aspect of their faiths' religious practice." Id. Appellants
appealed. A panel of this court appointed amicus curiae to
argue on appellants' behalf. See Levitan v. Ashcroft, No.
00-5346 (Order) (Apr. 13, 2001).
II. Discussion
We review the District Court's grant of summary judgment
de novo. Summers v. Dep't of Justice, 140 F.3d 1077, 1078
(D.C. Cir. 1998). A court grants summary judgment only
when there is "no genuine issue as to any material fact and
... the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). The court must resolve doubts
and make all reasonable inferences in favor of the opposing
party. Abraham v. Graphic Arts Int'l Union, 660 F.2d 811,
814-15 (D.C. Cir. 1981).
A. The Constitutional Framework
It is well established that prisoners retain constitutional
rights in prison, including free exercise rights under the First
Amendment. See Pell v. Procunier, 417 U.S. 817, 822 (1974);
Cruz v. Beto, 405 U.S. 319, 322 & n.2 (1972). The Supreme
Court has held that "convicted prisoners do not forfeit all
constitutional protections by reason of their conviction and
confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545
(1979) (citations omitted). Yet, lawful incarceration "brings
about the necessary withdrawal or limitation of many privi-
leges and rights, a retraction justified by the considerations
underlying our penal system." Price v. Johnston, 334 U.S.
266, 285 (1948).
In Turner, the Supreme Court set forth the standard for
adjudicating prisoners' constitutional claims. It held that
"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. The Court
set forth four factors relevant to this determination. First,
there must be a valid, rational connection between the regula-
tion and the legitimate interest put forth to justify it. Id.
Second, there must be a determination whether the prisoners
retain alternative means of exercising their asserted rights.
Id. at 90. Third, there must be an assessment of the impact
accommodation of the asserted constitutional right will have
on guards, other inmates, and prison resources. Id. Finally,
"the absence of ready alternatives is evidence of the reason-
ableness of a prison regulation." Id. The Turner Court
applied these factors to uphold a regulation barring corre-
spondence between inmates, while striking down a regulation
prohibiting inmate marriages. Id. at 91-99.
A week after deciding Turner, the Court decided O'Lone,
in which it applied Turner to prisoners' free exercise claims.
482 U.S. at 350-53. The Court conducted the requisite fact-
intensive analysis and concluded that a prison rule preventing
prisoners from attending a Muslim prayer service when they
were working outside was adequately supported by specific
concerns of prison administration. Id. In reaching this
result, the Court in O'Lone did not doubt that the disputed
rule impinged on the prisoners' constitutional rights. Id. at
349-52. Rather, the Court held that "the regulations alleged
to infringe constitutional rights were reasonably related to
legitimate penological objectives." Id. at 353.
In this case, the parties agree that the free exercise rights
of prisoners are governed by the Supreme Court's analysis in
Turner and O'Lone. In particular, the Government does not
argue that the Supreme Court's holding in Employment
Division, Department of Human Resources v. Smith, 494
U.S. 872 (1990), alters the Turner and O'Lone analysis in
cases concerning infringements on prisoners' constitutional
rights to practice their religions. In Smith, the Supreme
Court held that the free exercise clause did not exempt
religious individuals from complying with valid, neutral laws
of general applicability, even if those laws arguably impinged
on their religious practices. 494 U.S. at 878-79. Many courts
have grappled with the question of how the Court's decision
in Smith interacts with the prisoner-specific test set forth in
Turner and O'Lone. One possibility is that Smith supplanted
the Turner analysis, because Smith can be read to say that
religious inmates should never be entitled to exemptions from
generally applicable, religion-neutral prison regulations. An-
other possibility is that Smith simply has no application in the
unique and highly regulated prison context, so Turner and
O'Lone continue to govern. A third possibility is that both
Smith and O'Lone/Turner are applicable, but at different
stages of analysis. Under this view, Smith is relevant in
determining the scope of a person's free exercise right in the
first instance, while Turner and O'Lone are employed in
determining how that right may be circumscribed in the
specialized prison context. Thus, a prisoner asserting a right
to smoke marijuana for religious purposes in prison would
never reach the Turner analysis, because he would lack a
First Amendment right under Smith to smoke marijuana in
the first instance, whether in prison or elsewhere.
Most Courts of Appeals have taken the second approach,
simply continuing to apply Turner and O'Lone in analyzing
prisoners' constitutional rights. See, e.g., Kikumura v. Hur-
ley, 242 F.3d 950, 956-58 (10th Cir. 2001) (applying Turner
factors to prisoner's free exercise claim); Flagner v. Wilkin-
son, 241 F.3d 475, 481-87 (6th Cir. 2001) (applying Turner to
a prison grooming regulation and declining to apply Smith);
Green v. Polunsky, 229 F.3d 486, 489-91 (5th Cir. 2000)
(applying Turner and O'Lone to prisoner's free exercise
claim); DeHart v. Horn, 227 F.3d 47, 51-60 (3d Cir. 2000) (en
banc) (applying Turner factors to prisoner's religious right to
have special diet in prison); Hakim v. Hicks, 223 F.3d 1244,
1247-49 & n.3 (11th Cir. 2000) (applying Turner and O'Lone
and noting that because the government had not argued that
Smith required a different standard, the court would not
decide the issue); Walsh, 1 F.3d at 876-77 (declining to
depart from Turner and distinguishing Smith); Salaam v.
Lockhart, 905 F.2d 1168, 1171 n.7 (8th Cir. 1990) (holding that
Smith does not affect the Turner/O'Lone analysis); see also
Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir. 1999) (noting
in dicta that Smith was not a prison case and it "did not
purport to overrule or limit Turner and O'Lone; and the
Supreme Court has instructed us to leave the overruling of its
decisions to it"). But see Hines v. S.C. Dep't of Corr., 148
F.3d 353 (4th Cir. 1998) (upholding a prison grooming regula-
tion under both Smith and O'Lone).
In this case, the Government does not contend that Smith
alters the Turner/O'Lone analysis of prisoners' free exercise
claims. Accordingly, we will apply the Turner/O'Lone legal
framework to appellants' claims.
B. Impingement is Not Determined by Whether the Reli-
gious Practice is "Mandatory"
The District Court correctly identified O'Lone and Turner
as the framework for analyzing rules that impinged on prison-
ers' constitutional rights. It found, however, that the BOP
rule did not impinge on appellants' constitutional rights in the
first place, because it did not prohibit them from participating
in a mandatory religious practice. Or, as the District Court
put it, appellants' constitutional rights were not infringed
because a Catholic is not required to take wine at Communion
"at peril of his soul." The District Court erred in this
holding.
A requirement that a religious practice be mandatory to
warrant First Amendment protection finds no support in the
cases of the Supreme Court or of this court. Insofar as
appellees suggest that this court articulated such a require-
ment in Henderson v. Kennedy, 253 F.3d 12, reh'g denied, 265
F.3d 1072 (D.C. Cir. 2001), petition for cert. filed sub nom.
Henderson v. Stanton, 70 U.S.L.W. 3445 (U.S. Jan. 2, 2002)
(No. 01-978), they misread that case. In Henderson we held
that a rule banning the sale of t-shirts on the National Mall
did not substantially burden the religious practices of evan-
gelical Christians who believed that they were obliged to
preach the gospel by all available means. Henderson, 253
F.3d at 16; see also Henderson, 265 F.3d at 1074 (denying
petition for rehearing). We noted that the plaintiffs in
Henderson could not claim that the regulation "forces them to
engage in conduct that their religion forbids or that it pre-
vents them from engaging in conduct their religion requires."
Henderson, 253 F.3d at 16. Henderson does not suggest,
however, that the plaintiffs had to make such a showing in
order to demonstrate an impingement on their religious exer-
cise.
The fact that a regulation affects a mandatory religious
practice is, obviously, relevant evidence of an infringement on
the free exercise of religion. But that is far from the only
circumstance in which a rule impinges on free exercise. In
Henderson, we mentioned "required" religious conduct in the
context of a list of many scenarios that might have suggested
that the ban on t-shirts substantially burdened the plaintiffs'
religious freedom. Id. at 16-17. We noted that the plaintiffs
had not attempted to sell t-shirts everywhere people congre-
gate; that the regulation did not constrain conduct that
manifested some central tenet of their beliefs; and that the
plaintiffs had not treated selling t-shirts on the Mall as rising
to a high level of significance in their religion. Id. In short,
the court did not hold that, in order to demonstrate that a
Government rule impinges on the free exercise of religion, a
plaintiff must first show that the rule is directed at a practice
deemed by the religion's believers to be "mandatory." This is
not the law.
Nor would such a requirement make sense. Under the
District Court's formulation, religions that lack the concepts
of commandments necessary for the salvation of the soul
would find themselves outside the scope of First Amendment
protection altogether. Nothing in the free exercise clause
suggests that it only protects religions that incorporate man-
datory tenets.
Many cherished religious practices are performed devoutly
by adherents who nonetheless do not or cannot insist that
those practices are mandated. Neither the Supreme Court
nor this court has ever adopted a rule limiting protection to
practices that are compelled by a litigant's religion. We
decline to adopt such a rule today.
C. The Impingement Threshold
The fact that the First Amendment does not protect only
compelled religious conduct does not mean that the Constitu-
tion forbids all constraints on religiously motivated conduct,
however trivial. Instead, the First Amendment is implicated
when a law or regulation imposes a substantial, as opposed to
inconsequential, burden on the litigant's religious practice.
Our cases make clear that this threshold showing must be
made before the First Amendment is implicated. See Branch
Ministries v. Rossotti, 211 F.3d 137, 142 (D.C. Cir. 2000)
(holding that, to sustain its claim under either the Constitu-
tion or RFRA, a plaintiff must first establish that its free
exercise right has been substantially burdened). This re-
quirement accords with the Supreme Court's discussion in
O'Lone, which assumed the importance of the relevant ritual
to the prisoners. See 482 U.S. at 351.
In determining whether a litigant has met the threshold
requirement, a court must consider several factors. The
litigant's beliefs must be sincere and the practices at issue
must be of a religious nature. See Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
The challenged rule must also burden a central tenet or
important practice of the litigant's religion.
We are mindful of the Supreme Court's warning that
judging the centrality of different religious practices is akin
to "the unacceptable 'business of evaluating the relative mer-
its of differing religious claims.' " Smith, 494 U.S. at 887
(quoting United States v. Lee, 455 U.S. 252, 263 n.2 (1982)
(Stevens, J., concurring in judgment)); see also Univ. of
Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (same).
Nonetheless, it is sometimes the case that litigants can make
no credible showing that the affected practice is either central
or important in their religious scheme. See Henderson, 253
F.3d at 17. In such cases, the de minimis burden imposed
by the challenged law is not constitutionally cognizable. Id.
In other cases, in which the practice at issue is indisputably
an important component of the litigants' religious scheme, see,
e.g., City of Hialeah, 508 U.S. at 531 (noting that petitioners'
assertion that animal sacrifice was an integral part of their
religion was neither bizarre nor incredible), such evidence
may be relevant to overcome any claim that the impact of the
challenged law is de minimis. Moreover, a rule that bans a
practice that is not "central" to an adherent's religious prac-
tice might nonetheless impose a substantial burden, if the
practice is important and based on a sincere religious belief.
A court may also consider whether the litigants' beliefs find
any support in the religion to which they subscribe, or
whether the litigants are merely relying on a self-serving
view of religious practice. This inquiry is not a matter of
deciding whether appellants' beliefs accord in every particular
with the religious orthodoxy of their church. See Smith, 494
U.S. at 887 (holding that courts should not question the
"validity of particular litigants' interpretations" of their
creeds) (citing Hernandez v. Comm'r, 490 U.S. 680, 699
(1989)). Nor is it a matter of adjudicating intrafaith differ-
ences in practice or belief. See Thomas v. Review Bd. of the
Ind. Employment Sec. Div., 450 U.S. 707, 716 (1981) (holding
that "it is not within the judicial function and judicial compe-
tence to inquire whether the petitioner or [another member of
his faith] more correctly perceived the commands of their
common faith," because "[c]ourts are not arbiters of scriptural
interpretation"). Instead, a court may determine whether
the litigants' views have any basis whatsoever in the creed or
community on which they purport to rest their claim. For
example, a Catholic litigant who asserted that it was part of
his religion to wear sunglasses would be making a claim "so
bizarre ... as not to be entitled to protection" under the
First Amendment. Id. at 715. The litigant's assertion of a
view so totally foreign to the creed with which he claimed to
affiliate might well lead the court to question his sincerity. It
is therefore unlikely that a litigant challenging a rule limiting
his right to wear sunglasses could satisfy the threshold
requirement.
In the instant case, the District Court apparently assumed
that the plaintiffs could not satisfy the threshold test, because
the religious practice at issue was not mandatory. As noted
above, the trial court's ruling on this point was in error.
Therefore, on remand, the District Court must first deter-
mine whether plaintiffs' claim passes the threshold test, and
then consider whether plaintiffs have met their burden under
the Turner/O'Lone test. We explain below.
D. What Must Be Done on Remand
We remand to the District Court to determine whether
appellants have met the threshold requirement of showing a
substantial burden on the free exercise of their religion. They
certainly have raised a genuine issue of material fact regard-
ing the question, rendering the District Court's grant of
summary judgment inappropriate. Appellees did not contest
that appellants' beliefs are both religious and sincerely held.
See Br. for Appellees at 7 n.7. The record also includes
evidence that the practice of taking wine with Communion is
important in terms of appellants' religious beliefs. For exam-
ple, the record indicates that appellants have regularly at-
tended Mass and taken wine at Communion throughout their
incarceration and for years prior to their incarceration. See
Levitan Decl.pp 3, 7, reprinted in J.A. 69-70; Leonardo Decl.
pp 3-4, reprinted in J.A. 75-76. This suggests that taking
wine with Communion is not an unimportant part of appel-
lants' religious practice. In their complaint, appellants also
alleged that they believed it to be the command of the Lord
Jesus Christ to consume both bread and wine, because the
sign of Communion is more complete when given under both
species, although no similar statements appear in their decla-
rations. Am. Compl. p 33, reprinted in J.A. 32.
The record further indicates that the practice of consuming
wine during Communion has a readily identifiable basis in the
practices of many Catholics and in church doctrine. Sister
VanBaalen's declaration confirms that appellants' belief that
Communion is more complete as a sign when received under
both species has a basis in their creed. VanBaalen Decl. p 4,
reprinted in J.A. 51. The record additionally demonstrates
that taking wine with Communion is a practice that was
recognized in many of the religious settings in which appel-
lants have practiced, including in their various places of
incarceration. Levitan Decl. p 3, reprinted in J.A. 69-70
(stating that appellant was given wine with Communion,
presumably by Catholic prison chaplains, at prisons in Peters-
burg, Virginia; Yazoo City, Mississippi; and Pensacola). In
short, the taking of wine with Communion cannot be viewed
as a trumped-up practice that appellants have conveniently
labeled "religious." The fact that some other Catholics only
consume the species of bread is not dispositive, nor are the
statements of clergy that the taking of wine by congregants is
not a mandatory element of the ritual.
While appellants have raised a genuine issue of fact regard-
ing the threshold test, the exact nature of their belief in
wine's religious importance is not entirely clear. Some of the
most fervent statements of their beliefs appear in their
complaint but not in their respective declarations. Rather
than prejudge the issue, we remand so that the District Court
can make the required determination. And regardless of its
decision on the threshold inquiry, the District Court should
also conduct the appropriate balancing analysis under Turner
and O'Lone to determine whether the BOP regulation is
reasonably related to legitimate penological interests. If
there is any future appeal in this case, the appellate court
may benefit from findings by the District Court on both the
threshold issue and the Turner/O'Lone test.
The Turner and O'Lone inquiry should focus on whether
the change in regulatory regimes - from one in which Catho-
lic inmates could consume wine through intinction to one in
which only the chaplain is permitted to consume wine - is
justified by a legitimate penological interest. In making this
assessment, the District Court must bear in mind that, under
the new rule, the prison still allows alcohol to be consumed on
the prison grounds and in prisoners' presence under the
supervision of the chaplain. The narrow question will be
whether the ban on the chaplain's actually administering wine
to the inmates, as opposed to merely drinking it in their
presence, is justified.
While the four Turner factors are not a mandatory part of
the balancing test, the Supreme Court held them out as
relevant and useful. First, the District Court should deter-
mine whether there is a valid, rational connection between the
prohibition and any legitimate governmental interest put
forward to justify it. The relationship between the interest
and the rule must be rational, so that if the interest were the
prevention of drunkenness among inmates, the prison would
have to explain how that interest is implicated by the negligi-
ble amount of wine ingested through intinction. Under the
second Turner factor, the District Court should consider
whether the inmates have alternatives open to them. Third,
the District Court should consider the impact on the prison
and on other inmates of allowing the Catholic prisoners to
consume wine along with the chaplain during Communion.
Finally, the court should consider the availability of alterna-
tives to the rule. Under this prong, the court should evaluate
any asserted problems with the previous policy of allowing
inmates to consume small amounts of wine during Commun-
ion. See Turner, 482 U.S. at 89-91. Because appellees
submitted no evidence relevant to the Turner and O'Lone
analysis, the District Court should conduct further fact-
finding on this issue.
III. Conclusion
For the foregoing reasons, we reverse the decision of the
District Court and remand the case to the District Court for
further proceedings consistent with this opinion.