Does the Most Favored Nation Approach to Religious Discrimination Apply in Prison?

Yesterday, the Supreme Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA) cannot be the basis for a lawsuit for money damages against state prison officials who blatantly violate it because, according to the 6-3 majority opinion of Justice Gorsuch, laws enacted pursuant to the Spending Clause cannot authorize liability against people who are not the recipients of federal funding. Louisiana, the Court said, took the federal money and thus subjected itself to RLUIPA, but the officers did not. As a consequence, petitioner Damon Landor was left without a remedy against the officers who shaved his head in violation of RLUIPA, even after they were clearly informed that doing so would violate Landor's sincere Rastafarian beliefs. 

In my latest Verdict column, I offer three reasons why the holding in Landor v. Louisiana Dept of Corrections and Public Safety is problematic. The first two track arguments made by Justice Jackson (joined by Justices Sotomayor and Kagan) in dissent: (1) there's something peculiar about saying that RLUIPA binds the officers but also that it can't make them liable in damages, at least where, as here, there is no plausible claim of any kind of immunity; and (2) the majority skipped over the statutory question whether RLUIPA authorizes damages suits against individual officers. I then add a third criticism of my own: even if the Spending Clause can't constitutionally authorize the lawsuits, the Commerce Clause can, and RLUIPA invokes both clauses.

In this essay, I want to turn to a question that was not before the Supreme Court in Landor: Did the plaintiff have a good Free Exercise claim? Landor raised one in the district court, but that court rejected it, citing the Supreme Court's decision in O'Lone v. Estate of Shabazz, which stated the general proposition that infringements on the free exercise rights of prisoners are not to be measured by strict scrutiny but only by asking whether they are reasonably related to legitimate penological interests. The O'Lone test is not at all protective, as the facts of that case illustrate. The Court there allowed prison authorities to block religiously required weekly group prayer in part because Muslim prisoners were given opportunities to practice other aspects of their faith, such as alternative meals to pork and some accommodations during Ramadan.

Here a brief digression: To my mind, the focus on other religious observances in O'Lone reflected a kind of doctrinal confusion on the Court's part. An earlier case--Turner v. Safely--had established the "legitimate penological interests" test for infringements on prisoners' constitutional rights. As relevant, Turner involved a right to communicate, an area in which alternative channels of communication are salient to whether a restriction is valid. Consider that part of the test for the validity of time, place, and manner restrictions is whether they leave such alternative channels open. But the focus on alternatives makes little sense as applied to religion. A person whose faith requires doing A and B while refraining from X and Y lest he be condemned to eternal damnation will find cold comfort in the prison authorities allowing him to do A but not B while requiring him to do X but not Y.

Despite my disagreement with O'Lone, I do not deny that it has been the law for nearly forty years. Notably, it was decided in 1987, almost three years before the Supreme Court held in Employment Division v. Smith that free exercise does not require exceptions from so-called neutral laws of general applicability. Thus, even if the Court were to overrule Smith, petitioners like Landor would appear to be out of luck under the Free Exercise Clause--left to rely only on RLUIPA.

Or would they be? I want to suggest that even under existing law the district court wrongly dismissed Landor's free exercise claim.

Suppose that a prison has a policy of serving a vegetable, a slice of bread, and a piece of pork at every meal. Now suppose that the Jewish, Muslim, and Jain prisoners, as well as those among the Hindu and Buddhist prisoners who are vegetarian or vegan because of their faith, ask the warden if they can have an alternative protein source because they have religious objections to eating pork. And suppose the warden consents to the request but only for the Jain and Muslim prisoners (or only for some other proper subset defined by religion). Regardless of whether there would be a right to non-pork meals on a freestanding basis under O'Lone or RLUIPA, it seems clear that the selective denial of the non-pork meals on religious grounds would be unconstitutional religious discrimination.

Why? Because both pre-Smith and post-Smith pursuant to Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, discrimination on the basis of religion is the quintessential free exercise violation.

But now consider what counts as discrimination on the basis of religion for purposes of free exercise. Since Tandon v. Newsom in 2021, the Court has applied a "most favored nation" approach. Under it, "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." (Emphasis in original). In Tandon, the Court found that California's home-gathering restrictions during the COVID pandemic were not neutral and generally applicable even though they applied to non-religious as well as religious home gatherings because they did not apply to what the per curiam opinion referred to as other "comparable secular activities" such as going to "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants."

Now apply that principle to Landor. The record in the case itself doesn't provide many details about the Louisiana Dept of Corrections policies because the original complaint was filed pro se and the free exercise claim was dropped on appeal after being rejected by the district court in a short paragraph relying on O'Lone. However, the policies are described in a 2017 Fifth Circuit case involving a different Rastafarian prisoner, Christopher Jerome Ware. The Fifth Circuit held that RLUIPA forbade the Louisiana Dept of Corrections from cutting Ware's hair.

Part of the pathos of yesterday's SCOTUS case is that Landor presented a copy of the Fifth Circuit ruling in Ware to the prison officials so that they wouldn't shave his head. Not only did they ignore the ruling; they threw it in the trash.

I'm now suggesting that in addition to validating his RLUIPA claim, the Ware case should have validated Landor's free exercise claim of religious discrimination. In the course of explaining why the prison's policy did not satisfy strict scrutiny, the Ware court said this: "the grooming policies are underinclusive because the parties agree that they do not apply to approximately half of DOC inmates: those inmates housed in parish jails for the duration of their incarceration but who remain in the legal custody of DOC (parish inmates)."

Assuming the policy remains the same, if Landor were being confined as a parish inmate--a secular designation--he would not have had his head shaved. Thus, he was treated less favorably than a great many comparably situated prisoners who had secular reasons for not wanting their heads shaved. Per Tandon, that is religious discrimination, and per the force of my hypothetical example of selective denial of pork-free meals, such religious discrimination is a free exercise violation notwithstanding O'Lone and Smith, and regardless of RLUIPA. And because 42 U.S.C. § 1983 is not a Spending Clause statute, individual officer liability is permitted (subject to the limits of the Prison Litigation Reform Act and, where applicable, qualified immunity).

Now it might be objected that the parish inmates are not comparably situated to Landor, but that seems wrong in light of the analysis in Tandon. If anything, comparability seems clearer here: whatever cleanliness or security interests might justify a short-or-shaven-hair grooming policy don't differ based on the status of the prisoner, whereas in Tandon one could very plausibly think (as the dissenters thought) that spending a few minutes in a grocery store poses less of a COVID risk than gathering for hours and singing hymns in the close quarters of a home.

That leaves only one other ground for thinking the Tandon analysis might fail. Maybe Tandon's definition of religious discrimination doesn't apply in prison. Maybe, that is, just as the Court watered down free speech for prisoners in Turner and watered down free exercise as an affirmative liberty right in O'Lone, it might, in a future case, water down the concept of religious discrimination for prisoners so that instead of Tandon, only express religious discrimination of the pork-alternative-hypo sort counts.

But the Court hasn't taken that step yet. Until it does, future prisoner claimants would be wise to make Tandon claims along with whatever remains of their RLUIPA claims following Landor.